VZCZCXYZ0000
OO RUEHWEB

DE RUCNDT #0562/01 1772152
ZNR UUUUU ZZH
O 252152Z JUN 08
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC IMMEDIATE 4495

UNCLAS USUN NEW YORK 000562 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: AORC APER PREL UNGA UNGA UNGA
SUBJECT: UNITED NATIONS - SIXTH COMMITTEE CONTINUES 
INFORMAL CONSIDERATIONS OF ADMINISTRATION OF JUSTICE 
 
REF: A. USUN 413 
     ¶B. USUN/IO EMAIL (WILCOX/HACKETT)-04/18/08 
     ¶C. USUN 491 
     ¶D. STATE 37257 
     ¶E. STATE 51372 
 
¶1.  (U) BEGIN SUMMARY:  General Assembly Sixth (Legal) 
Committee experts continued to consider the draft statutes 
for the new UN Dispute Tribunal (UNDT) and the UN Appeals 
Tribunal (UNAT) at two rounds of informal consultations held 
on May 12-16 and June 9-11.  Delegations remained divided on 
numerous issues and will meet on June 30-July 3 for a final 
round of talks aimed at concluding the Committee's 
considerations of the texts.  If the Sixth Committee experts 
cannot reach consensus on the outstanding issues by July 3, 
the Sixth Committee will reconsider the statutes when it 
meets next fall.  USUN has made clear the U.S. view that, 
whatever the outcome of the Sixth Committee's intersessional 
work, the General Assembly cannot adopt the statutes until 
the Fifth Committee (Administrative and Budgetary Questions) 
has reviewed them, along with any recommendations the Sixth 
Committee might make.  Both the Fifth and the Sixth 
Committees are scheduled to consider the reform of the UN's 
system of internal justice during the General Assembly's 
Sixty-Third session.  END SUMMARY. 
 
¶2.  (U) BACKGROUND:  The General Assembly, in resolution 
62/228, decided to establish the UNDT and the UNAT as of 
January 1, 2009.  An Ad Hoc Committee of Sixth Committee 
experts began its consideration of the draft statutes in 
April but did not reach consensus on them (ref A).  The Ad 
Hoc Committee agreed that the Sixth Committee would hold 
informal consultations before its fall 2008 meeting in an 
effort to finalize its considerations of the draft statutes. 
The UN Secretariat is pressing for the General Assembly to 
adopt the statutes before the current session ends this 
summer, arguing that the statutes must be in place so the new 
formal system can be operational as of January 1, 2009. 
Among other things, the Secretariat argues that the statutes 
must be adopted before judges can be appointed and the 
Secretariat can fill other essential positions for the new 
justice system.  The U.S. position is that the system is 
essentially operational once the statutes are adopted and a 
transitional plan is approved, both of which involved the 
participation of the Fifth Committee.  This cannot occur 
until the fall.  While this may entail some delays in the 
appointment of judges and Secretariat, with respect to action 
before the UNDT and UNAT, staff members will have timely and 
effective access for the resolution of their cases. 
 
¶3.  (U) The German Mission's Legal Adviser coordinated the 
Sixth Committee's informal consultations on May 12-16 and 
June 9-11 and will lead the last round on June 30-July 3. He 
plans to seek major delegations' cooperation to ensure that 
the Sixth Committee experts can reach agreement on the draft 
UNDT and UNAT statutes by July 3.  Although other delegations 
have moved toward the U.S. positions on expanding the new 
system to non-staff personnel and staff associations during 
the last two rounds of discussions (refs C, D), significant 
differences remain.  The most difficult issues appear to be 
the proposals to allow three-judge panels to hear certain 
cases before the UNDT; to permit the UNAT to consider issues 
of fact, including by considering new witness testimony and 
new documentary evidence not brought to the UNDT; and to 
permit the UNDT and the UNAT to grant temporary relief before 
the tribunals have reached a judgment on the merits.  The 
latest results of those discussions are reflected in an 
annotated table he prepared, which incorporates delegations' 
comments and proposed amendments to the draft statutes (ref 
B). 
 
¶4.  (SBU) SUBJECT-MATTER JURISDICTION--UNDT:  The EU and 
several other delegations generally supported USUN's proposal 
to replace language proposed by the Secretariat, which would 
give the UNDT jurisdiction to consider appeals challenging an 
administrative decision alleged to be in non-compliance with 
the "conditions of employment," with the language on 
jurisdiction in the statute of the current UN Administrative 
Tribunal.  Egypt, speaking for the G-77, has continued to 
insist on inserting language giving the new UNDT jurisdiction 
to consider alleged violations of an employee's "conditions 
of service," arguing that such language reflects the practice 
of the current UNAT and is needed to prevent confusion, since 
the UN Staff Regulations and Rules and other UN documents 
refer to "conditions of service."  COMMENT:  The G-77 
argument is specious both because the practice to which they 
refer does not exist apart from single decisions issued in 
the past and because occasional references to conditions of 
service in the Rules and other documents do not purport to 
alter the current statute of the UN Administrative Tribunal. 
This is an important matter of principle with far-reaching 
policy and financial implications.  If we are unable to 
prevail in the Sixth Committee, there is an opportunity to 
reach a more favorable outcome in the Fifth.  END COMMENT. 
 
¶5.  (SBU) SUBJECT-MATTER JURISDICTION-UNAT:  USUN explained 
that, as a compromise, the United States could accept 
language in the UNAT statute that would enable the UNAT to 
overrule the UNDT's factual findings if they are clearly 
erroneous, provided they do so on the basis of the written 
record developed by the UNDT.  If appropriate, USUN also said 
the UNAT could remand a case back to the UNDT so the UNDT 
could take further testimony or evidence or make further 
findings or conclusions.  The UK, Switzerland, and China 
stressed that the U.S. proposal would not use available 
judicial resources efficiently, arguing that since the UNAT 
has more judges than the UNDT, the UNAT should be able to 
take additional testimony or consider additional evidence 
necessary to overrule the UNDT's factual findings.  COMMENT: 
As USUN has replied, their argument not only is wrong - it 
relies on using three judges to do what one can and should do 
- but entirely misses the important underlying principle of 
separating the trial functions from appeals functions.  END 
COMMENT. 
 
¶6.  (U) Switzerland also said its considerations of the U.S. 
proposal would depend on whether the U.S. would be willing to 
devise safeguards to ensure that the UNAT would not remand a 
matter to a UNDT judge whose handling of the initial matter 
had reflected bias or other misconduct or incompetence. 
COMMENT:  This argument is based on the premise that a single 
judge has been biased and one needs three to compensate.  We 
do not accept the premise and, if the UNAT were to determine 
as such, it could issue the appropriate guidance or decision, 
including one remanding the matter to a different UNDT judge. 
 END COMMENT. 
 
¶7.  (U) SCOPE:  Many delegations seemed willing to agree that 
the new UNDT and UNAT should not hear claims brought by 
non-staff personnel, including consultants and contractors, 
at least initially.  Many delegations seemed to agree that 
the General Assembly should develop 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 
General Assembly would then consider whether to allow 
non-staff personnel access to the new formal system at a 
later date and in light experience gained with the new 
alternative dispute resolution mechanisms for non-staff 
personnel.  Several delegations have welcomed USUN's offer to 
present a proposal next fall for alternative dispute 
resolution based on locally and regionally based arbitration 
mechanisms that the UN could adopt. 
 
¶8.  (U) STAFF ASSOCIATIONS:  The EU and many G-77 delegations 
appear prepared to agree to prevent staff associations from 
bringing claims in their own right or class action suits, at 
least initially.  The UNDT and the UNAT would, however, be 
able to consider "friend of the court" briefs brought by 
staff associations. 
 
¶9.  (SBU) JUDGES:  Delegations remained divided over the 
Secretariat's proposal to allow the UNDT judges to refer a 
case to a three-judge panel.  Canada and Japan supported 
USUN's argument against allowing three-judge panels during 
the UNDT's initial phase.  The EU and the G-77 continued to 
argue that they have no room to compromise their positions 
that, under certain circumstances, panels of judges should be 
able to hear cases brought before the UNDT.  Australia 
proposed a compromise to allow the UNDT judges to submit 
complex questions to the UNDT in the course of the 
proceedings, but the EU and the G-77 opposed it.  COMMENT: 
Once again, on the issue of principle for us, assuming that 
we cannot reach agreement in the Sixth Committee, there may 
be more flexibility on this issue in the Fifth.  END COMMENT. 
 
¶10.  (U) Delegations also debated the draft statutory 
language on selection of judges.  The EU, Australia, Canada, 
and New Zealand supported a process under which the GA would 
appoint judges on the recommendation of the Internal Justice 
Council (IJC) established pursuant to GA resolution 62/228, 
while the G-77 advocated elections.  The G-77 also argued 
that no two judges could be of the same geographical group 
and stressed the need to address how the three full-time UNDT 
judicial posts and the two half-time posts would be rotated 
among the geographical regions within the UN. 
 
¶11.  (U) TRANSITIONAL MEASURES:  Most delegations preferred 
to defer to the Fifth Committee's views on how to handle the 
transition between the UN's current system of justice to the 
new system but asked the German coordinator to prepare a list 
of options for the Fifth Committee to consider.  Both the EU 
and the G77 agreed that any transitional measures would have 
to treat all litigants equally and said a set of objective 
criteria would need to be agreed upon for handling cases 
during the transitional period. 
 
¶12.  (U) AWARDS:  Most delegations seemed inclined to defer 
to the Fifth Committee concerning whether the tribunals can 
award interest and litigation costs to successful litigants. 
COMMENT:  While we do not think it wise or correct to 
describe the requirement "to treat all litigants equally," we 
believe that the German coordinator shares our caution in 
this respect, and the current language circulated to 
delegations does not refer to the issue of equality.  END 
COMMENT. 
 
¶13.  (U) OTHER ISSUES:  Various other issues still remain 
under discussion.  For example, discussions on two 
Secretariat proposals to authorize the UNDT to grant 
temporary relief proved contentious.  U.S. proposals to limit 
the circumstances under which the UNDT could grant such 
relief did not receive support.  Instead, other delegations 
agreed on language to permit the UNDT to do so upon a finding 
that the contested administrative decision appears prime 
facie to be unlawful and where its implementation would cause 
irreparable damage.  The EU, Switzerland, and G-77 also have 
stood by their proposal to insert statutory language 
requiring the Secretary-General to provide for the travel and 
related costs of staff and judges, which USUN alone among 
other delegations has opposed.  Delegations also are still 
debating language concerning filing deadlines, standards for 
waiving or suspending those deadlines, and the circumstances 
under which an appeal can be made to the UNDT to enforce a 
mediation agreement.  COMMENT:  These are matters on which 
the Fifth Committee also has an interest.  END COMMENT. 
Khalilzad