VZCZCXYZ0009
PP RUEHWEB

DE RUCNDT #0130/01 0431646
ZNR UUUUU ZZH
P 121646Z FEB 08
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC PRIORITY 3716

UNCLAS USUN NEW YORK 000130 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR L 
 
E.O. 12958: N/A 
TAGS: AORC KUNR UNGA UNGA
SUBJECT: RESEARCH REQUEST TO SUPPORT U.S. POSITIONS ON 
REFORMING UN SYSTEM OF ADMINISTRATION OF JUSTICE 
 
REF: A. A) 07 USUN 1223 
     ¶B. B) 07 USUN 2239 
 
¶1.    This is an action request.  Please see para 3. 
 
¶2.    BEGIN SUMMARY:  In Resolution 62/228, adopted on 
December 22, the General Assembly decided to establish a new 
system of administration of justice for the UN but deferred 
decisions on several issues that are critical to meaningful 
systemic reform, and on which delegations could not reach 
consensus (ref A).  These issues include the jurisdiction of 
the Dispute Tribunal and Appeals Tribunal, grounds of appeal, 
the compensation to be awarded, and the role of staff 
associations.  The Fifth Committee will consider these issues 
during its second resumed session in May, and an Ad Hoc 
Committee (which will convene Sixth Committee experts) will 
discuss these and other legal aspects of the reform when it 
meets in April.  Mission expects significant opposition from 
the European Union, Russian Federation, and G-77 bloc on many 
of the open issues.   END SUMMARY. 
 
¶3.    BEGIN ACTION REQUEST:  To help advance U.S. positions 
in both the Fifth Committee and the Ad Hoc Committee this 
spring, Mission requests assistance from the Office of the 
Legal Adviser in researching and drafting non-papers 
discussing relevant U.S. and representative international 
practice (from the five geographic regions represented in the 
UN) on key open issues.  Mission would provide those 
non-papers to UN counterparts, in an effort to rebut other 
delegations, insistence that the proposed aspects of the new 
system of justice opposed by the United States are consistent 
with international practice or even necessary to protect 
human rights.  The following are the outstanding issues for 
which we are requesting research assistance: 
 
(a)   Jurisdiction of the UN Dispute Tribunal (UNDT) and UN 
Appeals Tribunal (UNAT).  Do the United States, other states, 
or other international organizations permit individuals to 
bring claims challenging &conditions of employment8 (as 
opposed to claims arising from the written terms of an 
individual,s relevant employment contract and the applicable 
staff regulations and rules) and if so, on what legal basis? 
 
(b)   Number of judges ) The resolution provides for a 
single judge at the UNDT (trial) level and for a three-judge 
panel to hear cases at the UNAT (appellate) level.  USUN 
supports this arrangement.  However, the resolution also asks 
for further proposals regarding the use of a three-judge 
panel to decide UNDT cases, a measure the EU and many G-77 
delegations support, particularly for disciplinary 
proceedings.  Which systems of internal justice provide one 
versus three judges at the initial hearing of a case, which 
systems do not, and in what other ways do they differ?  What 
are EU (in particular, French, German, and Portuguese) 
practices in this regard?  Do any international organizations 
provide three-judge panels at the trial level? 
 
(c)   Grounds of appeal before the UN Appeals Tribunal ) 
Appellate jurisdiction remains under consideration, with many 
delegations, including those in the G-77, supporting the UN 
Secretariat,s proposal that the UNAT should have 
 
SIPDIS 
jurisdiction if the UNDT has &erred on a question of 
material fact.8  Many delegations argue that the appellate 
body must be able to consider errors of fact since judges are 
fallible.  Our position is that appeals should be based only 
on matters of law, not fact; an exception would apply in 
instances where relevant factual information that could not 
be known during the UNDT phase became known after a UNDT 
judgment.  What state practice supports our position?  What 
safeguards are built into our system and comparable systems 
to ensure that claimants receive fair treatment?  What other 
systems allow fact-based appeals?  Do such systems contain 
any safeguards to ensure that claimants do not receive a 
second trial at the appellate level? 
 
(d)   Compensation awarded by the Tribunals and alternatives 
) Also to be decided is whether the tribunals can grant 
specific performance and if so, under what circumstances. 
USUN supports limiting judgments to compensation only, with 
two years, salary being the normal cap.  Are there 
precedents for imposing such limits? 
 
(e)   The role of staff associations in the formal system of 
justice ) The UN Secretariat has proposed to allow UN staff 
associations to file the equivalent of class action claims, 
as well as to bring claims to enforce the staff 
associations, rights and to file friend-of-the-court briefs 
or intervene on behalf of individual claimants.  Do any other 
governments or international organizations allow staff 
associations/unions to file class actions on behalf of 
government employees?  Are there governments or international 
 
 
organizations that do not permit such class action claims? 
 
(f)   Arbitration alternatives ) The UN Secretariat has 
proposed that the new system of justice be extended to UN 
consultants and contractors, arguing that this category of 
non-staff officials does not have access to an effective 
remedy.  The UN,s contracts for this category of non-staff 
officials provide for arbitration under the UNCITRAL rules, a 
process the Secretariat argues is too cumbersome.  Post 
requests research into what dispute-resolution mechanisms 
might exist as an alternative to formal arbitration, such as 
the use of local, ad hoc arbitrators to consider small 
claims, rather than handling all arbitration centrally. 
 
(g)   Pro bono legal assistance ) Resolution 62/228 
established the UN Office of Staff Legal Assistance, 
consisting of one chief of unit, two legal officers and three 
legal assistants in New York and one legal officer each in 
Geneva, Nairobi, Addis Ababa and Beirut.  The Office,s 
mandate remains under discussion; the United States has 
argued that the Office,s mandate should be limited to 
providing information and advice to staff members regarding 
the system of justice, rather than to representing individual 
claimants, issuing legal opinions, engaging in legal research 
and drafting, or otherwise serving as individual advocates. 
The UN Secretariat asserts that the Office should represent 
individuals because the UN Panel of Counsel, which the Office 
replaced, acted as counsel of record for staff members. 
USUN,s view is that the Panel of Counsel exceeded its 
mandate by doing so.  Are there precedents for governments or 
international organizations to provide pro bono legal 
assistance to represent employees in labor/management 
disputes? 
 
END ACTION REQUEST. 
 
¶4.  Post appreciates L's assistance in preparing for the 
upcoming Fifth and Sixth Committee meetings. 
WOLFF