VZCZCXYZ0002
RR RUEHWEB

DE RUCNDT #0030/01 0162252
ZNR UUUUU ZZH
R 162252Z JAN 09
FM USMISSION USUN NEW YORK
TO SECSTATE WASHDC 5645

UNCLAS USUN NEW YORK 000030 
 
SIPDIS 
 
FOR IO/MPR - G. ABRAHAMS 
 
E.O. 12958: N/A 
TAGS: AORC AMGT PREL UNGA UNGA UNGA
SUBJECT: UN SUCCEEDS IN LAUNCHING NEW ADMINISTRATION OF 
JUSTICE SYSTEM 
 
REF: 07 USUN 01223 
 
¶1. SUMMARY:  At the main session of the sixty-third UN 
General Assembly, the Fifth Committee adopted a resolution 
(A/RES/63/253) that completely overhauls the organization's 
internal justice system for resolving employment-related 
disputes. Building on a framework resolution from the 
previous General Assembly as well as on the work of the Sixth 
Committee prior to and at the start of the most recent UN 
General Assembly, the Committee approved a new administration 
of justice system that significantly improves both the 
informal and formal processes for dispute resolution. It is 
scheduled to be fully operational by July 1, 2009.  During 
the past year, the United States, with help on various issues 
from a other Member States, was successful in substantially 
revising the Secretary-General's proposals, which were 
initially supported by almost all Member States, including 
the EU, CANZ, and G-77. The USG from the outset voiced 
principled objections to the Secretary-General's proposals, 
maintaining that, if adopted, they would have created an 
unwieldy, inefficient, and costly system of justice.  END 
SUMMARY 
 
¶2. As reported in reftel, UN Resolution A/RES/62/228 
established the framework for a new system of administration 
of justice to replace the one that had been in effect and 
largely unchanged for fifty years.  However, the details of 
the new system remained to be negotiated in the Fifth and 
Sixth Committees.  These details included the statutes for 
the new two-tier formal system of UN Dispute Tribunal (UNDT) 
and UN Appeals Tribunal (UNAT) that address the critical 
issues of the scope of the new system and the legal standards 
for resolving claims as well as for reviewing decisions on 
appeal.  They also included transitional measures for phasing 
out the old system and implementing the new system and the 
precise role to be played by the new Office of Staff Legal 
Assistance. 
 
CLOSE COORDINATION BETWEEN SIXTH AND FIFTH COMMITTEES 
 
¶3. The new two-tier formal system will be governed by 
statutes that were adopted as Annexes to the resolution.  As 
they involve not only administrative elements but also 
complex matters of jurisprudence, the Sixth Committee 
initially considered draft statutes that would govern the 
operations of the UNDT and UNAT, meeting last April and July 
as an ad hoc working group. The Sixth Committee met again at 
the start of the Sixty-Third Session and completed its work 
on the statutes in October, and then sent them to the Fifth 
Committee for final consideration.  USUN and Department legal 
and non-legal staff worked together in successfully pursuing 
USG objectives in both committees. 
 
STATUTES FOR FORMAL SYSTEM REVISED TO BE CONSISTENT WITH U.S. 
POSITIONS 
 
¶4. The statutes differ significantly from the original drafts 
proffered by the Secretary-General.  As a result of the 
persistence and pragmatism of the USG, in both the Sixth and 
Fifth Committees, the statutes are consistent with U.S. 
objectives. 
 
¶5. Key provisions of the statutes for the new UN Dispute 
Tribunal (UNDT): 
 
- Number of judges (Annex I, Article 10, para 9): Although 
the SYG proposed and most Member States, the EU in 
particular, pressed for all cases before the UNDT to be heard 
by a panel of three judges, the statute reflects the U.S. 
position and calls for cases normally to be heard by a single 
judge. This both expedites the processing of cases and holds 
down the cost of proceedings. In a compromise fashioned by 
the USG, the statute does allow the President of the UNDT to 
request the UNAT President to authorize the referral of a 
case to a three-judge UNDT panel, when necessary by reason of 
the particular complexity or importance of the case. 
 
- Awarding of compensation (Annex I, Article 10, paras. 5, 6, 
and 7): The U.S. succeeded in preventing a change from the 
old system to a system proposed by the SYG, and supported 
initially by most Member States, that would have provided 
unlimited compensation as well as costs and interest. In 
keeping the language of the old system, compensation would 
normally be limited to the equivalent of two years' net base 
salary while allowing for higher compensation in exceptional 
cases. Under the consistent practice of the old system, such 
higher compensation would be limited to a third year. Some 
Member States wanted to include provisions, not in the old 
statute, for payment of exemplary or punitive damages, costs 
(including attorneys' fees), and interest. The Mission 
succeeded in keeping these out of the statute.  Mission was 
 
 
also successful in obtaining a provision requiring parties 
found to manifestly abuse UNDT proceedings to pay costs. 
 
- Scope (Annex I, Article 3, para. 1): The Mission 
successfully resisted a proposal by the SYG, initially 
supported by the EU, CANZ, G-77 and others, to expand scope 
beyond that provided under the old system, covering current 
or former staff members, or their representative. Thus, 
efforts to include non-staff, such as personal services 
contractors, were unsuccessful. The Sixth Committee's Ad Hoc 
Committee will address this issue in its April session and, 
per para. 8 of the resolution, the issue of scope will be 
reconsidered at the sixty-fifth UNGA. 
 
- Role of staff associations (Annex I, Article 2, para. 3): 
The United States successfully also resisted a proposal by 
the SYG, initially supported by the EU, CANZ, and G-77, to 
allow suits by staff associations bringing claims in their 
own right, as well as class action suits. The USG crafted a 
limited compromise whereby the UNDT can permit or deny the 
application by a staff association to file a 
friend-of-the-court brief. 
 
¶6. Key elements of the statutes for the new UN Appeals 
Tribunal (UNAT): 
 
- The USG successfully resisted a proposal by the SYG, 
initially supported by the EU, CANZ, and G-77, to allow the 
new UNAT generally to address new facts on appeal. Instead, 
the UNAT statute provides for stringent limitation on 
introduction of new evidence (Annex II, Article 2, para. 5). 
Appeals will normally be limited to questions of law. The USG 
crafted a limited compromise whereby the UNAT, in exceptional 
cases, may consider additional documentary evidence, but no 
new testimony. If the UNAT determines that a decision cannot 
be taken without oral testimony, it will remand the case to 
the UNDT. 
 
- Awarding of compensation (Annex II, Article 9, paras. 1, 2, 
3): The provisions are the same as for the UNDT. 
 
- Access by UN Joint Staff Pension Fund and Specialized 
Agencies (Annex II, Article 2, paras. 9, 10): The UNAT shall 
serve as the second-instance tribunal for cases heard 
initially by the Standing Committee acting on behalf of the 
UN Joint Staff Pension Board. The UNAT shall also be 
competent to hear cases brought against a specialized agency, 
provided the agency has concluded an agreement with the UNAT 
for that purpose and utilizes a neutral first instance 
process that includes written documentation of proceedings. 
A similar provision appears in the UNDT statute.  (Annex I, 
Article 2, para 5). 
 
USG FENDS OFF ATTEMPT TO MIX OLD AND NEW SYSTEMS FOR 
TRANSITION PURPOSES 
 
¶7. The Secretary-General proposed and the EU, CANZ, and G-77 
initially supported the transfer of cases pending in various 
stages in the old system immediately to the new system. The 
USG sought on a principled and practical basis to prevent a 
mixing of the two different systems. The U.S. proposed that 
all cases that had been taken up by the JAB/JDC and the 
Administrative Tribunal should be completed under the current 
system and not be transferred to the new system. The USG 
negotiated a compromise that will maintain the distinction 
between the two systems for up to a year. This compromise 
(Section IV of the resolution) calls for the following: 
 
- abolishing JAB's/JDC's as of July 1, 2009, with pending 
cases transferred to the UNDT as of that date; 
- providing an option for any cases ready for filing in the 
JAB/JAC after December 31, 2008, to be filed under the new 
system; 
- extending of the UN Administrative Tribunal through 
December 31, 2009; 
- authorizing honorariums for UNAT members as of January 1, 
2009; 
- requesting 2009 sessions of the UN Administrative Tribunal 
to be moved up and authorizes extension of UNAT sessions by 
up to four weeks; 
- transferring cases pending before the UN Administrative 
Tribunal as of December 31, 2009 to the UN Dispute Tribunal. 
 
¶8. The Mission hopes that this compromise will allow most 
cases currently pending before the JDC/JAB and the 
Administrative Tribunal to be processed before the end of 
2009, minimizing the overlap between the two systems and the 
backlog of cases from the old system in the new system. 
 
USG FENDS OFF ATTEMPT TO REQUIRE UN LEGAL REPRESENTATION FOR 
CLAIMANTS AND PROMOTES CONSIDERATION OF ALTERNATIVES 
 
 
 
¶9. Resolution 62/228 replaced the Panel of Counsel, which 
assists claimants with their claims, with the Office of Staff 
Legal Assistance (OSLA). Under the Panel of Counsel, staff 
traditionally were assisted by other staff members who 
volunteered to represent them in JAB, JDC, or UNAT 
proceedings. In the late 1990's, however, the Panel of 
Council received temporary funding from the peacekeeping 
support account that was utilized by the Panel to hire 
professional legal staff to represent staff and came to rely 
more on them than on volunteers. The Secretary-General 
proposed to expressly provide that the new OSLA would act as 
counsel of record for claimants, thereby formally creating a 
legal aid entity that has very large potential financial 
implications for the Organization. While agreeing to the 
transformation of the Panel of Counsel to the OSLA, the USG 
successfully resisted the creation of a specific mandate that 
the office represent claimants.  The USG insisted that the 
more ambiguous status quo be maintained while calling for 
incentives for staff to continue to volunteer and for 
proposals for an alternative UN staff funded legal 
representation regime.  Section I, paras. 9-14 and 16 of the 
new resolution calls on the Secretary to do the following: 
 
- provide incentives to encourage current and former staff to 
assist staff members in resolving disputes; 
- develop incentives to enable and encourage staff to 
participate in the work of the OSLA; 
- report at the sixty-fifth UNGA on proposals for 
staff-funded schemes to provide legal assistance and support 
to staff'. 
 
¶10. The resolution ensures that the mandate and function of 
the OSLA, including the possibilities for enhanced 
participation of volunteers and of a staff-funded scheme for 
representing claimants, will be reviewed at the sixty-fifth 
session. 
 
TIMELINE FOR IMPLEMENTATION AND REVIEW 
 
¶11. The new system of administration of justice is now a fait 
accompli. However, the Fifth Committee will be addressing the 
following additional actions or issues relating to the 
implementation of the new system: 
 
- Terms of reference for UNDT and UNAT registries to be 
provided by the Secretary-General (as soon as possible) 
- Election of UNDT and UNAT judges (probably no sooner than 
mid-February or March 2009) 
- Report by the Secretary-General for the UN entities covered 
by the integrated Office of the Ombudsman (2009) 
- Discussion of alternative dispute resolution options for 
non-staff (April 2009 session of Sixth Committee Ad Hoc 
Committee) 
- Concluding of cost-sharing arrangements, based on head 
count with the relevant funds and programs (June 30, 2009 
- Rules of procedure for UNDT and UNAT to be to be approved 
sixty-fourth UNGA) 
- Abolishment of UN Administrative Tribunal and transfer of 
residual cases to UNDT (December 31, 2009) 
- Clarification of the role of the Department of Management 
in the evaluation process (Sixty-fifth session) 
- Review of adopted and deferred elements of the new 
Administration of Justice  system, to include, inter alia, 
scope, mandate and functioning of the Office of Staff Legal 
Assistance, staff-funded scheme for legal assistance and 
support, filing of claims by staff associations, and 
UNDT/UNAT statutes (Sixty-fifth session) 
 
¶12.  COMMENT: The significance of this resolution cannot be 
overstated. By the end of 2009 all elements of the previous 
formal system will cease to exist and the new system will be 
fully staffed and operational. The expansion of the 
Ombudsman's office, the creation of the Office of Mediation, 
and requirement that all disputed actions be subject to 
administrative review should reduce the percentage of cases 
resolved via the formal level. This should then result in 
more expeditious processing of cases that reach the formal 
system. There will no doubt be some adjustments made based on 
experiences with the new system, but the efforts made by all 
interested parties has produced a new system of 
administration of justice that is a vast improvement over 
what previously existed. 
 
Khalilzad