ASSEMBLY’S LEGAL COMMITTEE ADOPTS WORK PROGRAMME, BEGINS DEBATE ON ADMINISTRATION OF JUSTICE WITHIN UNITED NATIONS SYSTEM

Sixty-second General Assembly

Sixth Committee

1^st & 2^nd Meetings (AM & PM)

ASSEMBLY’S LEGAL COMMITTEE ADOPTS WORK PROGRAMME, BEGINS DEBATE

ON ADMINISTRATION OF JUSTICE WITHIN UNITED NATIONS SYSTEM

Honduras , Announcing International Court of Justice Ruling Today

On Issue with Nicaragua, Says ‘Victory for Peaceful Resolution and Rule of Law’

The Under-Secretary-General for Legal Affairs and Legal Counsel, Nicolas Michel, noted new details on a proposal to strengthen the functions of the United Nations Ombudsman’s Office and the draft elements of statutes for Dispute and Appeals Tribunals to provide a frame of reference for a new administration of justice system, as the Sixth Committee (Legal) took up that question when it opened its first meeting of the General Assembly’s sixty-second session after adopting its work programme and setting up working groups on major topics.

Continuing, Mr. Michel said the adoption of numerous instruments by the Committee, representing diverse legal cultures, had reaffirmed the primacy of international law in the service of the international community over the years.  The International Law Commission’s work remained the highlight of the current agenda with its focus on State responsibility, diplomatic protection and transboundary harm.  Yet, there was a pressing need to reach agreement on outstanding issues for a draft convention on international terrorism.  The working group on the topic, chaired by Rohan Perera of Sri Lanka, presented an opportunity for a compromise on those matters.

The working group on administration of justice is chaired by Ganeson Sivagurunathan of Malaysia.  Also established today was a working group on criminal accountability of United Nations officials and experts on mission, chaired by Maria Telalian of Greece.

Summing up the Committee’s work, Mr. Michel said the criminal accountability issue presented another dimension of crime in the international system.  The good image of the Organization had been tarnished by incidents of sexual exploitation and abuse, particularly in Mission areas by those entrusted to bring about stability and assist in restoring lives broken by political turmoil and conflict.  The efforts that culminated last year in the establishment of an ad hoc committee on the issue offered an opportunity for the international community to respond resolutely and to give added meaning to the established “zero tolerance” policy of the United Nations.

During debate on the administration of justice, representatives said the question was of the highest concern, with many welcoming the brisk implementation deadline of January 2009.

The speaker for Liechtenstein said the topic was not merely a technical exercise, but a core element of efforts to equip the Organization with the tools to confront ever-increasing challenges.  Australia’s representative, also on behalf of Canada and New Zealand (CANZ), said it was incumbent on the Committee to provide guidance to colleagues on the Fifth Committee (Administrative and Budgetary) so as to establish an adequate funding and staffing base for the new system.

Egypt’s representative emphasized the importance of the reform proposals and outlined issues the Committee should note.  Those included identification of the scope of jurisdiction, the means to enhance legal assistance to staff, and establishment of an ideal and impartial administrative review system.

Expressing concerns about a number of matters, the speaker for the United States said it was premature for the working group on the administration of justice to begin detailed consideration of language for the new statutes of the judicial system.  He said budget considerations would ultimately influence the General Assembly, and the Committee’s recommendations were not divorced from budgetary reality.  He also opposed the elimination of a cap on compensatory damage awards and called for clarifying the types of claims that could be pursued under the new system.  Morocco’s representative, however, said the proposed reform was ambitious but necessary, and it was up to the Legal Committee to determine the legal actions to be taken.  Any changes suggested by the Administrative and Budgetary Committee must not infringe on issues of international legality.

The representative of Honduras announced to the Committee that the International Court of Justice had today announced a ruling on a matter before it concerning Nicaragua and his own country.  The Presidents of the two countries were meeting on the border between them, to ratify their acceptance of the ruling in which the victors were the peaceful resolution of differences and the rule of law.

Also speaking today on administration of justice were the representatives of Portugal (on behalf of the European Union and associated States), Switzerland, Colombia, Guatemala, Uruguay, Sudan, Russian Federation, Malaysia, Venezuela and Japan.

The Committee is expected to meet again at 3 p.m. on Wednesday, 10 October, when it will take up the question of international terrorism.

Background

The Sixth Committee (Legal) was meeting this morning to adopt its programme of work for the sixty-second session of the General Assembly, including the establishment of working groups, followed by the consideration of its first agenda item, “the administration of justice at the United Nations”.

Other topics listed for discussion during the Committee’s session, due to end on 15 November, include measures to eliminate international terrorism; criminal accountability of United Nations officials and experts on mission; report of the Special Committee on the United Nations Charter and Strengthening of the Role of the Organization; and a report on the fifty-ninth (2007) session of the International Law Commission.

Administration of Justice

The topic, “administration of justice at the United Nations”, was allocated to both the Sixth Committee and the Fifth Committee (Administrative and Budgetary) by the General Assembly at its previous sixty-first session for their consideration, the Sixth Committee to examine the legal aspects, both institutional and procedural, of the question.

The Sixth Committee at its resumed session in March this year established a working group which considered the subject.  On the Committee’s recommendation, the General Assembly requested the Secretary-General to prepare two documents, namely, a proposal to strengthen the functions of the Office of the Ombudsman, including mediation; and also draft elements of a statute or statutes of the first instance and of the appellate instance of the formal system of administration of justice.

In a letter to the President of the General Assembly, annexed to document A/C.5/61/21, the Vice-Chairman of the Sixth Committee during the sixty-first session said that the Committee had reached a preliminary agreement on twelve points regarding the legal aspects of the topic.  These included the strengthening of the informal system of administration of justice “through means that might include an integrated but decentralized office of the Ombudsman and a reinforced mediation”.  Another point was the recommendation that the formal system should comprise two tiers.

The Vice-Chairman emphasized, however, that the agreement resulted from a preliminary consideration of the item in advance of expected comments on the subject by the Advisory Committee on Administrative and Budgetary Questions (ACABQ).

On the Sixth Committee’s recommendation, the General Assembly requested the Secretary-General to provide more details on a proposal to strengthen the functions of the Office of the Ombudsman, including mediation; and draft elements of a statute or statutes of the first instance and of the appellate instance of the formal system of justice.

The General Assembly, on the recommendation of its Fifth Committee, adopted resolution A/61/261 on 4 April to establish “a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice”.  It decided, in particular, to create a single integrated and decentralized Office of the Ombudsman for the United Nations Secretariat, funds and programmes, comprising a Mediation Division and a two-tiered system of formal justice, consisting of a decentralized United Nations Dispute Tribunal and a United Nations Appeals Tribunal.

Legal assistance to staff members would continue to be strengthened and an Office of the Administration of Justice would be created, according to the resolution, which also endorsed the system of management evaluation proposed by the Secretary-General.

In the same resolution, the General Assembly requested the Secretary-General to report on the twelve points outlined by the Sixth Committee on the establishment of a new system of administration of justice.  The Assembly invited the Sixth Committee “to consider the legal aspects” of the reports to be submitted by the Secretary-General.  It was planned to implement the new system of administration of justice at the United Nations not later than January 2009. 

In conjunction with the discussion of the topic on administration of justice, the Sixth Committee has before it a report of the Secretary-General, A/62/294 (a consolidation of all the documents he was to produce), which sets out, among others, the essential elements of the legal framework for the new justice system.

The report provides detail on the nomination and terms of reference of the Ombudsman, the nomination and selection of judges, draft elements of the statutes of the United Nations Dispute Tribunal and United Nations Appeals Tribunal, and disciplinary procedures, management evaluation and legal assistance for staff.  The report also includes detailed financial implications for the introduction of the new justice system.

Also before the Committee is a report (document A/62/179) on the outcome of the work of the Joint Appeals Board during 2005 and 2006 and statistics on the disposition of cases and work of the Panel of Counsel.

Statements

The Chairman, ALEXEI TULBURE (Republic of Moldova), opening the meeting, said that, in today’s interdependent world, international law formed the basis for a peaceful, prosperous, progressive and just world.  The General Assembly had taken every opportunity to reiterate its conviction that the interests of all States would be best served through strict adherence to norms and principles of international law.  That message had a prominent place in the 2005 World Summit of Heads of State and Government when they reaffirmed their commitment to the “purposes and principles of the Charter of the United Nations and international law”, and reiterated their “determination to foster strict respect for them”.

Address by Legal Counsel

NICOLAS MICHEL, Under-Secretary-General for Legal Affairs and Legal Counsel, said the Sixth Committee, representing diverse legal cultures, had over the years adopted numerous instruments that had reaffirmed the primacy of international law in the service of the international community.  The consideration of the report of the International Law Commission remained the highlight of the Committee’s work and this year the Committee would be required to take important decisions on several projects that emanated from the Commission’s previous work.  He referred in particular to the three topics -– “Responsibility of States for internationally wrongful acts”; “diplomatic protection”; and “consideration of prevention of transboundary harm from activities and allocation of loss in the case of such harm”. 

He said the challenges posed today in a largely globalized world had accentuated the role that the United Nations Charter seemed to have foreseen for an individual in that community.  While the Organization had to be proud of its standard-setting efforts in protecting and promoting the rights of the individual, the threat posed by international terrorism reminded all of the extremism that humanity was capable of.  It also showed the need to enhance the legal framework to bring accountability for those who committed egregious crimes.  He said the individual as an alleged perpetrator of crime had become a concern of the Organization.  Its groundbreaking work on individual criminal responsibility attested to that overriding concern.  Reaching agreement on the outstanding issues relating to the draft convention on international terrorism was as pressing today as it was several years ago when negotiations on the convention began.  The coming work of the working group on the subject presented an opportunity for a compromise on the outstanding issues.

The question of criminal accountability of United Nations officials and experts on mission (an item on the Committee’s agenda) presented another dimension of the position of an individual as a perpetrator of crime in the international system.  The good image of the Organization had been tarnished by incidents of sexual exploitation and abuse, particularly in mission areas by those entrusted to bring about stability and assist in restoring lives broken by political turmoil and conflict.  The efforts that culminated last year in the establishment of an ad hoc committee on the issue offered an opportunity for the international community to respond resolutely and to give added meaning to the established “zero tolerance” policy of the United Nations.

Touching on the “administration of justice at the United Nations”, (also an agenda item), he said it was his hope that the additional details on a proposal to strengthen the functions of the Office of the Ombudsman, including mediation, and draft elements of statutes of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal would provide the necessary frame of reference for the Sixth Committee to continue an earnest examination of the issues involved.  The Sixth Committee’s discussion of the “rule of law” was an enormous challenge that required delicate management for the realization of the full potential that the item presented, he added.

The Committee then adjourned for a meeting of its Working Group on the Administration of Justice at the United Nations.

When the Committee met again this afternoon, ROD KEMP (Australia), speaking also for Canada and New Zealand, noted the proposed implementation deadline of January 2009 for the new administration of justice system, and said it was incumbent on the Legal Committee to review legal aspects of the system and to provide guidance to colleagues on the Fifth Committee so that an adequate funding and staffing base was provided.  The legal issues in the draft statutes of both the Dispute Tribunal and the Appeals Tribunal must be addressed on the basis of two criteria, that of legal soundness and of meeting the required standards of justice and due process.

For example, he continued, the Redesign Panel had identified access to legal representation as a recognized international standard of justice.  It had criticized the current internal justice system for its “egregious inequality of arms”.  A means must be found to allow all parties to receive a fair hearing.

Similarly, he went on, the Redesign Panel had emphasized the need for professional, independent judges.  Consideration of the criteria and process for selecting those judges must ensure the appropriateness of the process to the unique context of an internal justice system applying the United Nations standards to staff in various locations.  As the Redesign Panel had recommended, an internal justice council of eminent persons should identify a list of eligible persons to serve on the two tribunals.  The Secretary-General and the General Assembly could then make appointments from the list.

JOÃO MADUREIRA (Portugal), speaking on behalf of the European Union and its variously associated States, said the new administration of justice system must meet the expectations assumed to be applicable for an organization known for its work in setting, promoting and developing international norms in the field of human rights and rule of law.  With the elements already established for a system that would ensure both staff rights and responsibilities as well as management accountability, the common goal was to achieve a system able to deliver timely, effective and fair justice.

Continuing, he said the dimension and complexity of the task implied a close collaboration between the Sixth and Fifth Committees.  After the earlier collaboration this year that had resulted in the determination of the required elements through resolution 61/261, the Legal Committee would now focus on the legal aspects to be put in place so as to enable the Administrative and Budgetary Committee to decide on financial and administrative aspects based on precise legal requirements.  The work would begin with a consideration of the elements for the statutes of the two tribunals, one on disputes and the other on appeals.

However, he cautioned, the formal system was only part and parcel of the new structure.  Other key elements to be addressed included the strengthening of legal assistance for staff, a decentralized information system to avoid unnecessary litigation and new mechanisms of management evaluation to increase the early resolution of disputes.  Resolving the legal implications of those elements was crucial to the effective functioning of the system as a whole.

STEFAN BARRIGA ( Liechtenstein) said the topic under consideration was not just a merely technical exercise but a core element of efforts to equip the Organization with the needed tools for confronting ever-increasing challenges.  A new, independent, transparent, decentralized system that was adequately resourced was long overdue and would improve staff morale, enhance accountability and improve the Organization’s overall performance.

Welcoming the ambitious implementation date, despite the many open questions detailed in the Secretary-General’s report, he said the Committee must focus its attention on ensuring that the new system was fully consistent with rules of international law and with the principles of the rule of law and of due process.  In that regard, the scope of the new system must take into account the need for certain non-staff personnel to have access to dispute resolution.  There must be no blind eye to the fact that many individuals with greatly differing contractual agreements worked side by side over a long time in United Nations offices.  Those enjoying less favourable contractual conditions must not be further punished by being prevented from accessing a proper justice system.

EMMANUEL BICHET (Switzerland) said the Committee should focus its efforts on questions that came under its area of competence, particularly the development of a formal system of administration of justice and the links between that and the informal systems, as well as between the formal system, the disciplinary procedures and the hierarchical control.  It would be desirable for the Committee to give close attention to the Secretary-General’s proposals on the statutes of the Tribunal for Administrative Disputes and the Court of Appeal of the United Nations.  The Committee should also decide on the modalities for appointing and dismissing judges as well as on the question of the number of judges at the first and second instances required to examine cases within a fair and objective procedure.

Switzerland considered it necessary that the procedure for the nomination and removal of judges must ensure their independence.  It favoured the establishment of a council of internal justice to compile the list of candidates for the posts of judge of the first and second instances.  It also supported the idea that only the General Assembly should be able to remove judges, and should therefore be authorized to appoint all of them and not only those of the Court of Appeal as suggested by the Secretary-General.  The representative of Switzerland also said that the number of judges to be appointed to the courts of first and second instances should be high enough to ensure objectivity of decisions.

His delegation considered that the introduction of the new system of administration of justice in the United Nations was an opportunity to ensure that every person working for the Organization, regardless of his or her status, was heard by an independent body.  If certain categories of staff, such as interns or volunteers, had to be excluded from the new system of administration of justice, it was indispensable that other effective channels of appeal were made available to them given the immunity of jurisdiction that the Organization enjoyed in the Member States.  In addition, the exclusion should be clearly founded on objective reasons, he said. 

NAMIRA NABIL NEGM ( Egypt) emphasized the importance of the reform of the formal justice system of the United Nations.  She outlined six issues that should be taken note of by the Sixth Committee in its examination of the topic.  The scope of jurisdiction under the new system should be identified.  That was a grave issue as only 15 per cent of United Nations employees held permanent contracts, as indicated in reports of the Secretary-General.  The Committee should study the means of enhancing legal assistance to staff members to reduce costly judicial process.

She also said rules should be established for an ideal and impartial administrative review system to correct improper administrative decisions before recourse to the courts.  A time frame should be set up for the administrative review process to the disciplinary decisions, so as not to exceed 30 days in New York and 45 days at other United Nations offices.  There was also a need for a reasonable time frame for mediation and the implementation of binding decisions agreed to by the parties.

She said there should be a provision for affected parties to request an injunctive order to enforce the implementation of the mediation agreement in case of non-compliance by a party to such an agreement.  The Committee should identify the method for the selection of judges in the two tiers of judiciary, their numbers and mandate.  There was also a need for the study of interim measures between the old and the proposed systems.

Finally, she said, the Committee should study the statute of the Court and decide upon the competence of its members and registrar.  Responsibility for the establishment of rules of procedures of the tribunals should be entrusted to their judges subject to its adoption by the General Assembly.

ÁLVARRO SANDOVAL BERNAL ( Colombia) called for the Committee to address procedural aspects for the new administration of justice system, such as formulating a clear definition of the system’s scope.  Also, the question of what activities would be undertaken during the current session should be clarified.  In essence, it should be kept in mind that the topic was a legal matter that had both juridical and financial implications.  It was up to the jurists to design a system that was fair, equitable, accessible and balanced.

He said the heart of the matter was the achievement of fairness for the benefit of United Nations staff.  The system should be moderate and the terms “informal” and “formal” should not be used.  Mediation was not an informal mechanism but an extrajudicial one.  There also was no need for two tribunals.  Rather, there should be a judicial system with one tribunal that had two chambers, one of first instance and the other of appeals.  That would mean that only one statute would have to be finalized rather than two.  It would provide greater consistency in jurisprudence, avoid administrative overlap and make the assurance of justice fairer.  After all, the objective was to implement a system that was effective, long-lasting and rational in its budgetary impact, so as to guarantee the principle of rule of law.  

IVÁN ROMERO-MARTINEZ ( Honduras) first announced that the International Court of Justice had just a few hours before it handed down a judgement on the case before it concerning Nicaragua and his own country.  He said the presidents of both countries were at a meeting on the border between the two countries to ratify their acceptance of the ruling.  In accepting the ruling, there were no other victors but the principles of peaceful resolution of differences and the rule of law.

On the subject at hand, he said the United Nations had a responsibility to provide a fair and equitable justice system to its staff.  A single definition of legal norms should be the first priority for going ahead with the work, which was legal in nature and had implications that must be met.  Above all, political will for agreement was key to making progress.

ANA CRISTINA RODRIGUEZ-PINEDA ( Guatemala) supported the reform of the administration of justice in the Organization.  She said members of the staff were valuable members of the Organization.  In general comments on the report, she said the Sixth Committee should make suggestions on the legal aspects of the reform of the internal justice system.  It should focus on the procedural issues involved in the Panel’s recommendations and the Secretary-General’s comments on them.  It should also study the scope of jurisdiction of the informal system such as the operations of the Office of the Ombudsman.  She said her delegation required more information on the relationship between the informal and the formal systems of justice.  She drew attention to the elections of new members to the Administrative Tribunal next November.

She said the Sixth Committee should concentrate on the qualifications of judges to be engaged with the Fifth Committee handling their employment.  She said her delegation was looking for more details on the current and the proposed system.  She again reiterated the need for the Sixth Committee to concentrate on the legal aspects of the proposals.

GUSTAVO ALVAREZ ( Uruguay) said the Committee should proceed as expeditiously as possible with the study of the proposals.  He said the Fifth Committee and the Sixth Committee should stick to their areas of competency in their study of the proposals on the internal justice system of the Organization.  His delegation supported the role of the Ombudsman.  He noted the need for decentralization of its functions and expressed support for effective legal counsel for staff, including those in the field.  He said judges should have proper qualifications to be fully independent.  There should be direct election of judges by the General Assembly, as a guarantee for legitimacy and transparency of the process of their selection.

KARIM MEDREK ( Morocco) said the internal justice system of the United Nations had been growing dysfunctional, inefficient and unworkable for many years.  Only a genuine change could bring about an effective system that reflected a respect for the rule of law.  The Secretary-General’s report would serve as a good framework for going forward.

There should be an integrated Ombudsman’s office for the United Nations system, including the agencies, he continued.  It was incumbent on the Organization to provide a single system of justice for all staff, and a strengthening of the informal mechanism would help avoid needless litigation.  Mediation, which was a voluntary mechanism, should also be strengthened.  A two-tiered approach should be taken on the question of tribunals, that of the first instance and that of appeals, since that accorded with international law.  Since the nomination and removal of judges should be by a process that promoted independence, the General Assembly should appoint all judges and not just those of the appeals tribunal.

RODGER YOUNG ( United States) said many issues required further discussion for a new administration of justice system.  Among those were questions about the scope of jurisdiction and powers, applicability to non-staff and appropriateness of a role for staff associations.  The long and detailed report of the Secretary-General was still being considered by his delegation, but a number of observations could already be made.

First, it was premature for the working group to begin detailed consideration of language for the new statutes until broader agreement was reached on basic principles.  It should also be borne in mind that budget considerations would ultimately influence the Assembly, and the Committee’s recommendations were not divorced from budgetary reality.  Further, the recommendation to extend the system beyond staff was impracticable.  Staff associations should not become involved in the process, nor should a new office with full-time lawyers be established to provide staff with direct representation.  Pro bono assistance was available under the current system, and legal assistance by the Organization should not involve advocacy of a particular case.

He said he opposed the elimination of a cap on compensatory damage awards and said more clarity was needed on the types of claims that could be pursued under the new system.  The concerns would be discussed in the coming days, but the Committee should not rush to reach final conclusions on a new internal justice system that would affect tens of thousands of individuals for decades.

YASIR A. ABDELSALAM ( Sudan) said the working group was the most appropriate forum for further study of the proposals.  The last session had been a landmark when the Fifth and Sixth Committees reviewed the proposals within their competencies.  His delegation agreed that the new system of justice should be based on professionalism, independence and efficiency.  He noted that the settlement of disputes in an informal way represented a mainstay of the new justice system.  He looked forward to the Fifth Committee completing its work.  Urgent efforts should be made by the Sixth Committee and its working group to conclude their tasks.

GENNADY V.GUZMIN ( Russian Federation) said his delegation attached great importance to the rule of law within the United Nations.  The proposed justice system was important, and it was high time that the question was settled.  His delegation supported the establishment of the two-tier system and the abolition of the current consultative bodies on dispute settlement.

He said the Committee should also study the scope of the persons who could apply to the tribunals for redress.  The key elements for determining that scope could be persons who had no other recourse for redress.  The study should also include United Nations officials who were not Secretariat staff and experts on mission, given the jurisdictional immunities of the Organization.  Other individuals within that scope could be individual contractors who were usually involved in activities which were commercially risky.  His delegation also supported the strengthening of the office of the ombudsman.  He said the judges should be appointed by the General Assembly.  On disciplinary issues, he said legal officers should be sent to field missions to investigate such matters.

KAMAL BAHARIN OMAR ( Malaysia) said there could be no issue of greater importance for the management of the Organization than that there should be an efficient, independent and effective system for its internal justice.  His delegation recognized that the existing Panel of Counsel which was formally established in 1984 was extremely under-resourced and was not professionalized.  It, therefore, supported the proposal for a professional office of counsel staffed, by persons with legal qualifications recognized by Member States, who would serve on a full-time basis.  The office would be properly resourced.

He said the proposals of the Redesign Panel on decentralized, streamlined and cost-efficient system of internal justice system merited consideration.  He recalled the Panel’s recommendation of a system that would ensure expeditious disposal of cases in the formal justice system.  His delegation also recognized that the exercise of redesigning the administration of justice required additional resources for the Organization.  The exercise would contribute considerable efficiency benefits to the system as a whole.  The costs implication would have to be considered thoroughly before a final decision was taken with the involvement of all Member States.

ALEJANDRO MORENO ( Venezuela) said it was important to continue studying the recommendations on the new administration of justice system.  A sole tribunal should be established with two instances to handle all disputes with its decisions being binding.  Procedures should also be put in place to strengthen the mediation mechanism for direct action in disputes.  An internal justice council should provide staff with representation.

TOMOHIRO MIKANAGI ( Japan) said the existing administration of justice system at the United Nations faced serious problems, and the system must be strengthened.  However, there should be close coordination between committees to ensure coherence of decisions and measures implemented.  The emphasis should be on implementing an efficient, legally sound system.  The laws and rules that entered into consideration must be very carefully discussed.

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