Sixty-first General Assembly

Sixth Committee

24^th Meeting (AM)

FOCUS OF DISCUSSION IS ADMINISTRATION OF JUSTICE AT UNITED NATIONS AS LEGAL COMMITTEE BEGINS CURRENT SESSION

Working Group Deliberations to Be Held

During 10-Day Session Scheduled to Conclude on 23 March

As the Sixth Committee (Legal) opened its resumed session this morning to consider the administration of justice at the United Nations, delegates sought clarity on how to approach that topic, which had been jointly assigned to both the Fifth Committee (Administrative and Budgetary) and the Sixth. 

Committee Chairman Ganeson Sivagurunathan of Malaysia said the Sixth Committee was expected to hold a series of Working Group sessions on the issue during its ten-day resumed session, on the basis of a report by the Redesign Panel (document A/61/205) recommending a completely new, decentralized, streamlined and cost-efficient system for internal justice of the United Nations.  Draft resolutions and decisions -- if any -- would be taken up in two weeks.

A major issue of concern was that the legal aspects of the Redesign Panel’s recommendations could not be readily discerned from their other aspects, making it difficult to determine an appropriate division of labour between the Fifth and Sixth Committees.  As stated by Australia’s delegate, who also spoke on behalf of Canada and New Zealand, a possible role for the Sixth Committee would be to ensure that appropriate standards of due process and fairness were incorporated in the new system, once it had considered changes proposed by the Fifth Committee.  In light of that, it should carefully check that those changes did not unduly prejudice due process or fairness considerations.

Others, such as the representative of Japan, felt that the Sixth Committee should press ahead to examine the issue’s legal aspects, and convey its conclusions to the Fifth Committee, which would then finalize the proposals. 

Also today, delegates touched on several issues that were expected to be considered in further detail during its upcoming working group sessions, including how to provide staff members -- whether on fixed-term or on other contract bases -- greater access to the justice system.   As several delegates remarked, United Nations staff had no recourse to national legal mechanism in the event of a dispute.

Other issues expected to appear on the Committee’s agenda included the establishment of a single integrated office of the Ombudsman, with the representative of the Philippines recommending that regional Ombudsmen be appointed to certain peacekeeping missions and duty stations away from Headquarters to ensure equitable geographic access -- a point raised by several other delegates.

Cost was also a concern, but as the Russian Federation’s delegate said, ensuring maximum possible access for persons entitled to legal recourse was vital to the Organization, which made it necessary to address questions of judicial expenditures and other financial approaches. The costs of ignoring the problems of the justice system were enormous, added Pakistan’s representative.

Germany’s delegate, speaking on behalf of the European Union, remarked that proposals submitted by the Redesign Panel on changes to the current internal justice system had been “very far-reaching”, amounting to a complete restructuring of the system.  The Panel had made it clear in its report that the weaknesses of the current system were mostly due to structural flaws.   

However, the representative of Argentina pointed out that, while reforms proposed by the Redesign Panel had been well-designed and ambitious, they were perhaps too ambitious.  Although the problems and delays of the current system of internal justice were well known, it might be possible to improve the system at a lower cost by increasing the number of staff devoted to ongoing cases to reduce backlogs, among other things. 

Also today, the Committee took up a draft resolution on the observer status for the Islamic Development Bank Group in the General Assembly, introduced by the representative of Saudi Arabia, to be acted upon at a later date.

Others making statements today included the representatives of Egypt, Guatemala, Norway, United States, Costa Rica, India, China and Libya.

The Committee will meet again on Friday at 3 p.m., 23 March, to conclude its work.

Background

The Sixth Committee (Legal) met this morning to resume its consideration of requests for observer status in the General Assembly (see Press Release GA/L/3299 of 16 October 2006).  It was also expected to consider administration of justice at the United Nations (see Press Release GA/L/3312 of 16 November 2006).

Statement by Committee Chairman

GANESON SIVAGURUNATHAN ( Malaysia), Chairman of the Sixth Committee, said that, according to the proposed programme for the Committee’s resumed session, that body would first begin consideration of requests for observer status in the General Assembly, it would then take up the administration of justice at the United Nations.  The Committee’s next plenary meeting would be convened on Friday afternoon, 23 March, to consider and adopt draft resolutions and decisions.  Adjustments to the provisional programme of work, if that proved necessary, could be adopted at that meeting.

Introduction of Draft Resolutions

Turning its attention to requests for observer status in the General Assembly, the Committee took up a draft resolution on the observer status for the Islamic Development Bank Group in the General Assembly (document A/C.6/61/L.20).

ABDULLAH S. AL-ANAZI ( Saudi Arabia), who introduced that resolution, said that Suriname and Tajikistan had joined the list of sponsors already named on the draft resolution. 

He said the Islamic Development Bank Group was a multilateral intergovernmental organization that worked to bolster economic development and social progress.  It had undertaken a wide range of international cooperation programmes, and offered a unique model for south-south partnership.  The Group’s capital of $45 billion and enjoyment of a “AAA-rating” qualified it as an adviser for countries as it embarked on development efforts.  The Group had worked closely with the United Nations Development Programme (UNDP), the United Nations Conference on Trade and Development (UNCTAD), the Food and Agricultural Organization, the World Health Organization, the United Nations Environment Programme (UNEP), World Bank, various regional development banks and others.  The Bank had also contributed to the Heavily Indebted Poor Countries (HIPC) Debt Initiative and the Global Facility for Disaster Reduction and Recovery, recently establishing a $10 billion fund targeted at poverty eradication.  The Bank’s participation as an observer would facilitate its work as an international development organization.

The Committee Chairman said that the Committee would defer further consideration of the matter to a later date.

Statements

THOMAS FITSCHEN (Germany), speaking on behalf of the European Union, on the topic of administration of justice, said that the proposals submitted by the “Redesign Panel” were very far-reaching when compared to the current system.  They amounted to a complete restructuring of the entire system, based on a fundamental change in its general outline.  Moreover, their proposals deserved very careful scrutiny by Member States, and the European Union was ready to actively participate in that.

The item had been assigned to both the Fifth (Administrative and Budgetary) and Sixth Committees in an unprecedented way, he continued.  If the Sixth Committee focused on formulating legal views on the proposals, and left it to the Fifth Committee to examine its organizational and budgetary conditions and consequences, both Committees taken together could come up with a good proposal.

There were some fundamentals needed to guide the Sixth Committee in its work, he said.  Those included the effort to improve the United Nations system of administration of justice as a common effort of all involved.  A new system able to gain the trust and support of all would also make a very substantial contribution to the overall process of reform of the United Nations. 

He said that the United Nations -- itself involved in setting norms and in advocating the rule of law -- would also have to internally live up to its own standards.  In addition, the Redesign Panel had made it clear that the weaknesses of the current system were mostly due to structural flaws.  When criticizing the flaws, it was imperative to point out that they referred to the system as such, and not the people who had worked in it.  Finally, the Committee needed to be guided by the relevant rules and standards of international laws and principles that obliged and guided Member States -- at both the national and international levels.

BEN PAYLE (Australia), also speaking on behalf of Canada, Australia and New Zealand (CANZ), said that the Redesign Panel’s dismal portrayal of the current United Nations internal justice system was alarming, and had confirmed the CANZ group’s view that the system was in need of fundamental reform.  The Redesign Panel’s recommendations provided a well-reasoned basis for agreeing upon a new system of United Nations internal justice, and the group looked forward to hearing views on how that system might work in practice.

He said the legal aspects of the Redesign Panel’s recommendations could not be readily discerned from their other aspects, which made it difficult to determine an appropriate division of labour.  Perhaps the most significant role for the Sixth Committee would be to ensure that appropriate standards of due process and fairness were incorporated in the new system, once it had considered changes proposed by the Fifth Committee.  The Sixth Committee should carefully check that those changes did not unduly prejudice due process or fairness considerations.

In its consideration of the subject, the Committee should remember that United Nations staff had no recourse to national legal mechanisms in the event of a dispute, he said.

The Sixth Committee should not replicate discussions that the Fifth Committee would begin next week, he continued.  Though the CANZ group appreciated that the price for the new system of internal justice should be as low as possible, the Sixth Committee should not discuss cost.  Rather, it should focus on providing broad guidance on legal issues to the Fifth Committee.

HESHAM MOHAMED EMAN AFIFI ( Egypt) said his delegation supported the adoption of unified legal rules to be implemented by the judicial system of the United Nations.  Such rules needed to be applied by different levels of courts and by the International Labour Organization (ILO) Appeals Tribunal.  It was also important to establish rules for remedies and compensation, which needed to identify who had the right to be compensated and how to assess and estimate the damages. 

He also supported the idea of replacing the current advisory mechanism, consisting of the Joint Appeals Board and the Joint Disciplinary Committee, with a mechanism capable of adopting binding enforceable decisions. He said Egypt likewise supported enhancing the current investigation system through establishing a board of inquiry in peacekeeping missions.

The important administrative decisions adopted by the Board of Inquiry or any other administrative director, needed to be subject to the approval of the Secretary-General of the United Nations or any other person delegated for that job, he added.  He supported strengthening the mediation role and the office of the Ombudsman, thereby enabling the claimant to resort to those on a voluntary basis -- before the court adopted its final decision. 

Finally, his delegation supported the establishment of a two-tier judicial system that was composed of a first degree court consisting of one judge and an appeals court consisting of three judges.  As for granting the Staff Union class litigation rights, that issue needed to be further studied, since any person had the right to his natural lawyer. Henceforth, he said it was difficult to approve granting the Staff Union equal rights of litigation with individuals. 

ANA CRISTINA RODRIGUEZ-PINEDA ( Guatemala) said the first task of the Sixth Committee was to focus on the legal aspects of the Redesign Panel’s report, and on the Secretary-General’s accompanying note.  Guatemala agreed with Australia and Egypt that it should share its views with the Fifth Committee, which was ultimately responsible for the composition of a new justice system.

She said the Redesign Panel had described an innovative new structure without going into its procedural aspects, which were just as important.  Also, since tribunals had not traditionally been shown to be the most efficient way to solve conflicts, a highly developed alternative was needed -- which the report had touched on.  The Secretary-General’s note, meanwhile, had shown that the Administration was ready to accept reform and to strengthen the Organization’s biggest asset, which was its staff.

She said Guatemala supported an integrated, decentralized system, while believing that, with a good informal system, the formal system would not be unduly burdened.  However, it was important to recognize that conflicts should be solved through a mediation system that was underpinned by a working formal system.  In addition, Guatemala saw advantages in having a one-person tribunal, as opposed to a collective tribunal.  Her country also believed that administrative reviews were needed at the pre-judicial stage, with fixed deadlines.  Judges should be given mediation powers, but should be able to recuse themselves from cases not solvable through mediation.  It was important that staff representative associations should be able to file complaints; that limiting the jurisdiction of the appellate courts should be avoided; and that individuals and managers should be accountable for their actions, while upholding the concept of due diligence. 

She said Guatemala would recommend that disciplinary issues be removed from the debate, due to its complexity.  The issue of discipline within peace operations should be examined by the Committee on Peacekeeping Operations, to avoid duplication.

MARI SKAARE ( Norway) said her country believed in a United Nations-led world order, where all activities were underpinned by the rule of law.  That principle itself was valid for the United Nations and for the Secretariat, which was entrusted to carry out the mandates of the United Nations.  Indeed, to safeguard the Organization’s obligation to carry out its work independently, the Organization and its staff were granted privileges and immunities under the relevant 1946 United Nations Convention.  However, since staff members had no recourse to national legal systems, an internal system of justice was necessary.

She said Norway supported an independent and professional, two-tier system of formal justice.  The country also supported strengthening the mediation system; establishing a legal counsel; and decentralizing the system.  Issues that merited further discussion included the issue of who should have access to the tribunals; the rationale for keeping an administrative review process; the number of judges and their qualifications; the jurisdiction of the tribunals; and how disciplinary proceedings were to be conducted.  Creating a new internal justice system was an important part of the ongoing reform process and important for the future of the Organization.  The Committee should not allow financial considerations to cause it to settle on a less than adequate outcome.

EMMA ROMANO SARNE ( Philippines) said that the importance of an informal justice system should not be downplayed.  It was a form of moral governance –- a reflection of moral order in the workplace.  Her delegation supported the establishment of a single integrated office of the Ombudsman, with regional ombudsmen appointed to duty stations that reflected an equitable geographic access, as well as to certain peacekeeping missions. Moreover, the success of the proposed informal justice system was linked with the reforms envisioned in the formal justice system.  On that, her Government supported the Secretary-General’s recommendation to create a first-instance tribunal, the United Nations dispute tribunal, which could issue binding decisions that could be appealed to an appellate body, the United Nations appeals tribunal. 

On the issue of the system’s jurisdiction over parties and issues and the ability to make binding decisions and order remedies, the Philippines welcomed the Secretary-General’s recommendation to establish an intersessional working group.  Furthermore, existing mechanisms for enforcing financial accountability needed to be further re-examined or reviewed, she said.

Lastly, her Government agreed that the proposed reforms entailed costs that were both financial and non-financial in nature.  Structural reforms needed to therefore be followed by procedural reforms and amendments to existing rules and regulations that fully reflected the impartiality, fairness and transparency of the system.

ELIZABETH WILCOX ( United States) said that, while there was much her Government agreed with in the recommendations, there were also a few areas of concern.  For one, alternative dispute resolution systems generally provided a mechanism to ensure that settlements agreed through the informal system were not later brought into the formal system.  The existence of such a mechanism was important to improve the efficiency of case load management and to assure parties to a dispute that settlements reached in the informal system would be respected. 

Second, the overall design of the two-tier justice system required some study.  She said that the general structure and approach of a trial court and an appeals court was sound, but a question remained on whether the recommendations had adequately addressed questions of jurisdiction.  It would not be consistent with modern principles of justice to allow issues of both law and fact to be heard at both levels of the justice system. 

On the topic of extending the justice system, she said that the Organization’s obligations to staff members and non-staff members were not the same, and the dispute mechanisms for each needed to be separate.  In addition, on proposals to permit staff associations to bring class actions on behalf of their members, it was not appropriate for staff associations to control whether and under what manner class actions should be brought. 

Regarding recommendations on damage awards, her delegation did not see how the award of punitive damages against a publicly funded institution such as the United Nations would be consistent with modern principles.  Moreover, while there was a need to improve accountability, she said that proposal could seriously harm the United Nations efforts to recruit and retain staff.  Matters of personal accountability thus needed to be addressed by improving existing mechanisms.  Finally, her Government was not convinced that the Organization had an obligation to provide staff with direct legal support for the pursuit of their claims.  A question remained -- as a matter of legal principle -- on whether those services needed to be provided cost free to all United Nations staff with potential claims.

JORGE BALLESTERO ( Costa Rica) said that, as it was beneficial to look at certain issues through an interdisciplinary approach, he was happy to see that the administration of justice had been assigned to both the Fifth and Sixth Committees. Furthermore, a system needed to be structured for the administration of justice -- and not the other way around.

While being in agreement with the analysis of the Redesign Panel, he said that calling it an administration of justice system was overstating it. It was imperative to guarantee that the United Nations message was spread throughout the world. Moreover, it was vital to place priority on ensuring that the message the United Nations was disseminating was also the basis of its actions.

He said that a reformed system with binding decisions was imperative.  Issues regarding peacekeeping operations were especially complex, and more time was needed for a more detailed review in conjunction with the Special Committee for Peacekeeping Operations.  There also needed to be a general system of justice first, before ensuring that the proposed memorandum of understanding concerning sexual abuse in peacekeeping operations was compatible with that system.  Cases concerning sexual abuse needed to be solved quickly, but with legal rigor.

Mr. MIKANAGI ( Japan) said that the two briefing sessions held before the present session had been useful, and he expressed deep appreciation to the Bureau and Secretariat for organizing them. In considering the administration of justice at the United Nations, the Sixth Committee should take a legal point of view, which it should then convey to the Fifth Committee to further that body’s discussion of the topic.  Some questions that required careful attention included the need for a so-called “management review” during the initial stages of a case; whether one or three judges should hear cases at the first level; and many other issues.  The Secretary-General had made significant changes to the report of the Redesign Panel, and the views of Member States were understandably diverse at the present stage of deliberations.  Japan looked forward to an active discussion.

MUHAMMAD RAFIUDDIN SHAH ( Pakistan) said that any organization without a fair and balanced system of justice could not progress.  The Redesign Panel had put into words the problems faced by the Organization’s staff, as a result of an internal justice system that was outmoded, dysfunctional, ineffective and lacking in independence.  The costs of ignoring those problems were enormous.  While the Secretary-General’s approach towards the Redesign Panel’s report was appreciated, it ignored some of the Panel’s fundamental recommendations.  Pakistan looked forward to discussing the report’s substantive aspects within the working group.

He noted that, in the negotiations between the Staff Union and the administration, the New York chapter of the Staff Union had not been not involved.  It would have been much better if more efforts had been made to include major stakeholders in the negotiations panel.  It was requested that the Committee Chair clarify the best way for the Sixth Committee to develop its recommendations and to finalize them.  An appropriate approach might be to take a decision on the legal aspects of the proposed system and to send those recommendations to the Fifth Committee, which would then finalize them.  As for Pakistan’s own comments on the matter, it would offer them to the working group.

NEERU CHADHA ( India) said the internal justice system had been criticized for not meeting the requirements of due process.  It was essential that all United Nations employees had access to an impartial redressing mechanism, with attention to human rights and good governance standards, and which was administered by a professional, independent and decentralized system. 

She said that, in general, India broadly supported a two-tier approach that would safeguard the rights of staff members and create a legal assistance office for staff at designated places.  If a single Ombudsman for the Secretariat, funds and programmes were to be created, it should take care to cover staff in a broad range of countries, including those at large overseas missions.  An informal mechanism for resolving disputes was thought to be cost-effective and did not involve the predetermination of guilt or innocence.  Meanwhile, the Secretary-General’s proposals to institute three judges instead of one when trying cases at the first level needed careful examination, but it was acknowledged that three judges might better reflect the multicultural nature of the Organization and provide more balanced decision-making.  Finally, awarding damages would be inappropriate, given the nature of the Organization.  Those were among India’s general comments, and it would revert back to them in more detail later.

PEIJIE CHEN ( China) said that her delegation was strongly in favour of redesigning the system so that the Committee’s work could proceed smoothly. After all, a fair and balanced system of justice would ensure for a proper working environment.

She said that it was important to avoid any overlapping between the work of the Fifth and Sixth Committees, and to focus on the legal aspects of the issues in the Sixth.  Regarding the procedure for carrying out reform, her Government wanted to ensure for an effective and fair system on the administration of justice. It was equally important to ensure that the procedure was simple, straightforward and workable.

GENNADY KUZMIN ( Russian Federation) said that the proposed reform related to a radical re-working of the system. He was grateful to the Redesign Panel experts, who had been bold in forming such far-reaching proposals. He supported the proposed reforms overall, but noted a few problematic areas. For one, reform would lead to increased expenditures for the United Nations. 

There was also the issue of expanding the number of people with access to the system of justice in the United Nations. How many would have access? It was vital to ensure maximum possible access for persons entitled to it, while not overloading the already overburdened system, he said.  Questions of judicial expenditures and other financial approaches were, thus, relevant.

He said it was likewise important to ensure the effective monitoring of the system and its operation.  Furthermore, in the Redesign Panel’s proposals, the Member States’ role had been reduced to accepting the decisions of the appellate bodies. In the new system, he did not fully understand complaints about the administrative decisions of the Secretary-General -- directly or indirectly relating to labour relations -- such as lifting immunity for Secretariat staff.

DIEGO MALPEDE ( Argentina) said that the reforms proposed by the Redesign Panel had been well-designed and ambitious.  The team that had drawn up the report had worked tirelessly to gather the opinion of staff and management and, indeed, it was important to consider the circumstances faced by staff in field offices, as well as those hired on a contract or individual basis.  Perhaps the proposals had been too ambitious -- the proposed system was similar in form to that of the legal system of a State. 

He said that, while the problems and delays of the current system of internal justice were well known, it might be possible to improve the system at a lower cost.  For instance, the number of staff could be increased to reduce the backlogs in cases.  Perhaps those posts should be fixed-term and not volunteer positions.  The Joint Disciplinary Committee and the Joint Appeals Board could begin receiving professional advice from lawyers, in response to comments that their decisions were not as robust as they could be.  Perhaps more power could be given to the chair of the tribunals, to counter criticisms that the system of administrative justice was weak.  Another possibility was to increase the number of judges in the current system, while avoiding setting up a second tier of courts as suggested by the Panel. 

He remarked that delays in the system could be due to the overly litigious culture of the Organization.  It might be wise to empower a body of some kind to intervene in disputes that did not seem to have an end.

SALEH ELMARGHANI ( Libya) said that a transparent system of justice to ensure human rights was what was needed in the United Nations.  Moreover, staff needed to enjoy their rights effectively and in a timely manner.  The system also needed to keep in line with current developments or, better put, adapt to the requirements of development. He wished the Committee great success in that endeavour.

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