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UNCLAS USUN NEW YORK 000413 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: AORC APER PREL UNGA UNGA UNGA
SUBJECT: UNITED NATIONS - ADMINISTRATION OF JUSTICE - AD 
HOC COMMITTEE DISCUSSIONS - APRIL 2008 
 
REF: A. IO/USUN EMAIL (HACKETT/WILCOX)-04/07/08 
     ¶B. STATE 37257 
     ¶C. USUN 130 
     ¶D. 07 USUN 2239 
     ¶E. 07 USUN 1223 
     ¶F. 07 USUN 1020 
     ¶G. 07 STATE 36957 
     ¶H. 07 STATE 31831 
     ¶I. 07 STATE 22306 
     ¶J. 06 STATE 187672 
     ¶K. 06 STATE 171855 
 
¶1. BEGIN SUMMARY:  An Ad Hoc Committee of the General 
Assembly, made up of Sixth (Legal) Committee experts, met 
April 10-18, 21, and 24 to consider the legal aspects of the 
reform of the system of justice.  The Committee focused on 
draft statutes for the UN Dispute Tribunal (UNDT) and the UN 
Appeals Tribunal (UNAT), which the General Assembly, in 
resolution 62/228, decided to establish as of January 1, 
¶2009.  Delegations did not reach consensus on the draft 
statutes, although many wanted to accept them as drafted or 
with minor changes so the new system can be operational as of 
January 1.  The Committee agreed to transmit to the Fifth 
Committee annotated versions of the draft statutes, which 
reflect various delegations' preliminary comments.  The 
Committee also agreed to recommend that the Sixth Committee 
convene a Working Group next fall with a view to finalizing 
its considerations of the draft statutes and to meet 
informally to discuss the draft statutes before next fall. 
Those informal meetings will be held May 12-16, June 9-12, 
and June 30-July 3.  END SUMMARY. 
 
¶2.  USUN delivered ref A points in the plenary and delivered 
points drawn from ref B in the Working Group and informal 
negotiations.  Antigua and Barbuda (on behalf of the Group of 
77 and China), Australia (on behalf of Canada and New Zealand 
- CANZ), Guatemala, Israel, Japan, Mexico, the Russian 
Federation, Slovenia (on behalf of the European Union), and 
Switzerland also made statements in the plenary. 
 
¶3.  SUBJECT-MATTER JURISDICTION--UNDT:  In 
question-and-answer sessions, the Secretariat explained that 
its proposal for the UNDT's jurisdiction was intended to 
reflect and retain the jurisprudence of the current UN 
Administrative Tribunal.  Arguing that claimants must receive 
at least the same rights and benefits that the UN 
Administrative Tribunal would have granted them, most 
delegations supported the Secretariat's proposal to give the 
UNDT jurisdiction over claims alleging a violation of terms 
of appointment or conditions of employment. 
 
¶4.  SUBJECT-MATTER JURISDICTION-UNAT:  Many delegations, 
including the EU, Japan, Norway, and the G-77, argued that 
the Secretariat's proposal to give the UNAT jurisdiction over 
errors of material fact must be considered together with the 
question of the number of judges who would consider cases in 
the UNDT.  Many delegations argued that since only one judge 
normally would decide cases in the UNDT, consistent with GA 
resolution 62/228, the UNAT must be able to correct the 
UNDT's factual or other mistakes.  Most delegations thought 
that U.S. proposals to specify when the UNAT could review 
legally relevant errors of fact and to limit the UNAT to 
reviewing facts in the UNDT's written record would not 
sufficiently protect claimants.  The EU proposed allowing the 
UNAT to overrule the UNDT's decisions if it finds that the 
UNDT "erred on a question of fact, resulting in a manifestly 
unreasonable decision." 
 
¶5.  PERSONAL JURISDICTION:  Delegations remained divided over 
the Secretariat's proposal to give non-staff personnel, 
including consultants and contractors, the ability to bring 
claims before the new formal system.  The G-77 and China, 
which Egypt represented in the informal negotiations, argued 
that the language should be retained until information on the 
need to improve non-staff personnel's recourse to justice is 
received and considered.  Switzerland argued that volunteers 
other than UN volunteers, interns and type II gratis 
personnel should be covered by the new system, while the 
Russian Federation argued that the new system should cover 
officials other than staff of the Secretariat (such as the 
Chairman of the Advisory Committee on Administrative and 
Budgetary Questions) and experts on mission who do not serve 
under a contract as a consultant or individual contractor. 
The EU argued that the GA should not grant non-staff 
personnel access to the system now but must commit itself to 
discussing expanding the system to ensure that non-staff 
personnel have access to an effective remedy. 
 
¶6.  Delegations also remained divided on the Secretariat's 
proposal to allow the UN's staff associations to bring claims 
in their own right and on behalf of named staff members. 
Many delegations that do not have class action lawsuits in 
their own systems questioned USUN's arguments that, among 
other things, permitting staff associations to bring class 
action suits would invite frivolous litigation and expose the 
UN to significant liability. 
 
¶7.  JUDGES:  Delegations also presented numerous proposals 
concerning the appointment of the judges.  The EU and CANZ 
supported a process under which the GA would appoint judges 
on the recommendation of the Internal Justice Council 
established pursuant to GA resolution 62/228, whereas the 
G-77 advocated a process under which the GA would take the 
IJC's views into account in electing judges. 
 
¶8.  TRANSITIONAL MEASURES:  Most delegations did not offer 
views on the Secretariat's proposal to give the new system 
jurisdiction over cases transferred to it on January 1, 2009 
from a joint appeals board or joint disciplinary committee 
and cases filed before the UN Administrative Tribunal that 
had not been reviewed as of December 31.  USUN argued that 
the old system should operate in parallel to the new system 
during a brief transition period, but the G-77 argued that, 
to protect litigants' rights, the new system should absorb 
the backlog of cases from the previous system. 
 
¶9.  OTHER ISSUES:  Delegations presented various proposals 
and raised many questions on other aspects of the draft 
statutes.  For example, delegations debated whether cases in 
the new system should be brought against the UN, the 
Secretary-General, or the UN as represented by the 
Secretary-General.  The EU, Switzerland, and the G-77 
insisted that the draft statutes include language, drawn from 
GA resolution 62/228, requiring the Secretary-General to 
provide for the travel and related costs of staff and judges. 
 Delegations differed on whether the statute should give the 
judges discretion to suspend or waive filing deadlines and on 
how much time claimants should have to file applications. 
 
¶10.  On certain issues with direct and obvious financial 
consequences, many delegations wanted to defer to the Fifth 
Committee.  For example, most delegations seemed inclined to 
defer to the Fifth Committee concerning whether the tribunals 
can award interest and litigation costs to successful 
litigants, as well as costs against a party whom the 
tribunals determine has "manifestly abused the proceedings 
before the Tribunal." 
 
¶11.  COMMENT:  On many aspects of the proposed reform of the 
system of internal justice for the UN, the U.S. position is 
significantly at odds with views of other delegations. 
Japan, Israel, and Australia have indicated that they share 
some U.S. concerns.  Faced with substantial pressure from the 
EU and the G-77 and the January 1 deadline for the new system 
to become operational, and reflecting the apparent view that 
U.S. proposals are too ambitious or too tied to the U.S. 
legal system, these delegations appear to be prepared to 
compromise rather block progress.  END COMMENT. 
Khalilzad