Sixth Committee (Legal) — 71st session

Administration of justice at the United Nations (Agenda item 145)

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Documentation

Summary of work

Background (source: A/71/100/Add.1)

The General Assembly considered the item at its fifty-fifth to fifty-ninth and sixty-first to seventieth sessions (resolutions 55/258, 57/307, 59/283, 62/228, 63/253, 64/119, 64/233, 65/251, 66/237, 67/241, 68/254, 69/203 and 70/112, and decisions 56/458 C, 58/576, 61/503 A, 63/531, 64/527, 64/553 and 65/213).

At its sixty-second session, the General Assembly established: (a) a two-tier formal system of administration of justice, comprising a first instance United Nations Dispute Tribunal and an appellate instance United Nations Appeals Tribunal; (b) the Office of Administration of Justice, comprising the Office of the Executive Director, the Office of Staff Legal Assistance and the Registries for the United Nations Dispute Tribunal and the United Nations Appeals Tribunal; (c) a single integrated and decentralized Office of the Ombudsman for the United Nations Secretariat, funds and programmes with branches in several duty stations and a new mediation division; (d) the Internal Justice Council; and (e) the Management Evaluation Unit in the Office of the Under-Secretary-General for Management (resolution 62/228).

At its sixty-third session, the General Assembly adopted the statutes of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal and decided that those Tribunals would be operational as of 1 July 2009 and that all persons who had access to the Office of the Ombudsman under the previous system would also have access to the new informal system (resolution 63/253).

Consideration of the item in the Fifth Committee

At its seventieth session, the General Assembly recalled its decision that the interim independent assessment, established to examine the system of administration of justice in all its aspects, should include consideration of the relationship between the formal and informal systems and an analysis of whether the aims and objectives of the system set out in resolution 61/261 were being achieved in an efficient and cost-effective manner. The Assembly welcomed the establishment of the panel of experts to conduct the assessment, trusted that the recommendations of the panel and the related comments of the Secretary-General would be comprehensive and would cover all major aspects of the system of administration of justice; recalled that the objective of the assessment was the improvement of the current system; and reaffirmed its request to the Secretary-General to transmit the recommendations of the panel of experts, together with its final report and his comments thereon, for consideration by the Assembly at its seventy-first session. The Assembly decided to extend the three ad litem judge positions in the United Nations Dispute Tribunal for one year, from 1 January to 31 December 2016. It stressed that any decision regarding the possible conversion of ad litem positions to full-time positions and the eligibility criteria for the future permanent positions, including the eligibility of the current ad litem judges, should be taken after consideration of the recommendations of the panel of independent experts on that matter, as well as the related comments of the Secretary-General, during the Assembly’s seventy-first session (resolution 70/112, sect. I).

At the same session, with regard to the informal system, the General Assembly welcomed the recommendations to address systemic and cross-cutting issues contained in the report of the Secretary-General on the activities of the Office of the United Nations Ombudsman and Mediation Services (A/70/151) and requested the Secretary-General to report on progress made in the implementation of those recommendations in his next report. It commended efforts to resolve cases prior to litigation, including through enhanced conflict competence and cooperation between the formal and informal parts of the system of administration of justice, encouraged the Office to continue its outreach activities at all duty stations to promote informal dispute resolution and stressed the importance of improving performance management and communication between staff members to help to address the root causes of disputes. The Assembly recognized that access to the Office was a challenge for staff in the field, including for those in special political missions, encouraged the development of innovative measures to address those challenges and requested the Secretary-General to report thereon to the Assembly at the main part of its seventy-first session. It also encouraged the Office to continue to be involved in the progressive development and refinement of human resources policies and practices. The Assembly requested that information on the number and nature of cases from non-staff personnel continue to be clearly set out in future reports on the activities of the Office. It reiterated its request to the Secretary-General to ensure that the revised terms of reference and guidelines for the Office were promulgated, as a matter of priority, by the end of February 2016 at the latest (resolution 70/112, sect. II).

Also at the same session, with regard to the formal system, the General Assembly recognized the ongoing positive contribution of the Office of Staff Legal Assistance to the system of administration of justice, and its importance as a filter in the system, and encouraged the Office to continue to advise staff on the merits of their cases, especially when giving summary or preventive legal advice. It decided to extend the experimental period for the voluntary supplementing funding mechanism with respect to additional resources for the Office (by way of a payroll deduction not exceeding 0.05 per cent of a staff member’s monthly net base salary, in accordance with paragraph 33 of resolution 68/254) from 1 January to 31 December 2016; stressed the need to continue to explore means to raise awareness among staff of the importance of financial contributions to the Office; requested the Secretary-General to strengthen incentives for staff not to opt out of the voluntary supplemental funding mechanism, particularly in locations where the participation level was low, to continue to collect and examine data relating to staff contributions to the Office and to report thereon to the Assembly in his next report. The Assembly also requested the Secretary-General to continue to track the data on the number of cases received by the Management Evaluation Unit and the Dispute Tribunal in order to identify any emerging trends and to include his observations on those statistics in future reports, to include information on disputes involving non-staff personnel in the context of both management evaluation and informal mediation in his future reports and to provide information on existing measures to institutionalize good management practices that aimed to avoid or mitigate disputes involving the various categories of non-staff personnel. The Assembly noted with concern the increase in the number of pending cases before the Dispute Tribunal and the high cost to the Organization due to financial compensation paid to staff, and in that regard encouraged further efforts to handle cases in an effective and efficient manner, including through enhanced cooperation between the formal and informal parts of the system of administration of justice and proactive case management by the judges of the Tribunal. It requested the Secretary-General to ensure the accountability of managers whose decisions have been established to be grossly negligent, according to the applicable Staff Regulations and Rules of the United Nations, and which have led to litigation and subsequent financial loss, and to provide further information with regard to the effectiveness of the Management Evaluation Unit as a first step in the formal system of administration of justice and its review of administrative decisions taken by managers that could potentially have legal and financial implications for the Organization, and to report thereon to the Assembly at its seventy-first session. The Assembly reiterated its request to the Secretary-General to report on, at the main part of the seventy-first session, the implementation of the amendment to article 11, paragraph 3, of the statute of the Dispute Tribunal and to article 7, paragraph 5, of the statute of the Appeals Tribunal, including with respect to the administrative implications, any implications for the timely disposal of the cases, the ultimate disposition of appeals of orders, if any, and any costs saved by reason of stays pending such appeals. The Assembly approved the proposal of the Secretary-General to harmonize the privileges and immunities of the judges of the Dispute and Appeals Tribunals and decided to amend article 4 of the statute of the Dispute Tribunal and article 3 of the statute of the Appeals Tribunal; approved the proposal of the Secretary-General to prescribe that the filing of an appeal should suspend the execution of the judgment or order contested, and decided to amend article 8 of the rules of procedure of the Appeals Tribunal accordingly; and approved the proposal of the Secretary-General with respect to the mechanism for addressing complaints regarding alleged misconduct or incapacity of the judges of the Tribunals, and decided to adopt the mechanism with the amendment proposed by the Sixth Committee and annexed to resolution 70/112. It requested the Secretary-General to publish the statutes of the Dispute and Appeals Tribunal, as amended since their initial adoption, as soon as possible but no later than at its seventy-first session. The Assembly reiterated its request to the Secretary-General to submit, no later than at the main part of its seventy-first session, a single code of conduct for all legal representatives (resolution 70/112, sect. III).

Also at its seventieth session, the General Assembly stressed that the Internal Justice Council could help to ensure independence, professionalism and accountability in the system of administration of justice and requested the Secretary-General to entrust the Council with including the views of both the Dispute Tribunal and the Appeals Tribunal in its reports. In addition, the Assembly invited the Sixth Committee to consider the legal aspects of the report to be submitted by the Secretary-General, without prejudice to the role of the Fifth Committee as the Main Committee entrusted with responsibilities for administrative and budgetary matters (resolution 70/112, sect. IV).

Consideration of the item in the Sixth Committee

At the seventieth session, as set out in a letter from the Chair of the Sixth Committee (see A/C.5/70/9, annex), the Sixth Committee considered the legal aspects of the reports of the Secretary-General and of the Internal Justice Council on the administration of justice at the United Nations (A/70/187 and A/70/188, respectively), the report of the Secretary-General on the amendment to the rules of procedure of the United Nations Appeals Tribunal (A/70/189) and the report of the Secretary-General on the activities of the Office of the United Nations Ombudsman and Mediation Services (A/70/151), and it drew the attention of the Fifth Committee to a number of specific issues relating to the legal aspects of those reports.

Consideration at the seventy-first session

The Sixth Committee considered the item at its 16th and 22nd meetings on 14 and 26 October 2016 (A/C.6/71/SR.16 and 22).

Statements were made by the representatives of: the Dominican Republic (on behalf of the Community of Latin American and Caribbean States (CELAC)), the European Union, also on behalf of its member States (the candidate countries Turkey, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, and Albania, the country of the Stabilisation and Association and Association Process and potential candidate Bosnia and Herzegovina, and the European Free Trade Association country Iceland, as well as Ukraine, the Republic of Moldova, Armenia and Georgia, aligned themselves with this statement), New Zealand (also on behalf of Australia and Canada (CANZ)), Switzerland and the United States of America.

Delegations welcomed the reports of the Secretary-General, the Office of the United Nations Ombudsman and Mediation Services, and the Internal Justice Council (the “IJC”) and reiterated their satisfaction with the progress achieved by and the positive impact of the administration of justice system since 2009. Some delegations thanked the Secretary-General for responses provided in relation to the requests in General Assembly resolution 70/112 of 14 December 2015. Other delegations highlighted key principles that the administration of justice should be based on, including professionalism, independence, transparency, decentralization as well as the principles of legality and due process.  Delegations also took note, with appreciation, of the report of the Interim Independent Assessment Panel (the “IIAP”) on the system of administration of justice at the United Nations.

Delegations noted the stabilization in the number of cases before the United Nations Disputes Tribunal (the “UNDT”) and the progress made in the disposal of old cases. Nonetheless, it was noted that while the overall number of requests for management evaluation had decreased in 2015, the number of cases submitted from staff in the field had increased, along with the number of applications received by the UNDT. Furthermore, some delegations noted the increase in the number of appeals received by the Appeals Tribunal.

Several delegations commended the Management Evaluation Unit (the “MEU”), particularly for its role in identifying cases that could be settled, and emphasized that the informal resolution of conflict was a crucial element of the internal system of administration of justice. Delegations also called for better incentives to resort to informal conflict resolution, and in this regard, commended the activities of the Office of the United Nations Ombudsman and Mediation Services.

Some delegations emphasized the vital task of the Office of Staff Legal Assistance (the “OSLA”), including its regional offices, in informing staff members at all duty stations of their legal entitlements under the system of administration of justice, and in providing them with assistance in engaging in informal dispute methods or seeking judicial remedies.

Delegations took note of the proposal of a single code of conduct for all legal representatives, with some characterizing it is a living document to be improved or updated to take into account lessons learned.

As regards the legal protection of non-staff personnel, some delegations favoured a differentiated system that would provide an adequate, effective and appropriate remedy, while emphasizing that cost-efficient modalities in line with the broad preference for non-judicial mechanisms should be envisaged whenever possible. Some delegations remained concerned that 45 percent of the staff did not have access to the internal justice system, endorsed the recommendation of the IIAP that the protection of non-staff personnel required improvement and requested the Sixth Committee to identify areas in which the system needed to be amended to accommodate non-staff personnel in collaboration with the Fifth Committee. Some delegations, however, noted in agreement with the Secretary-General that access to the system on the administration of justice should not be expanded to non-staff personnel, while others suggested to use the Internal Justice Council’s proposal for a simplified and user-friendly dispute settlement procedure as a starting point and to invite the Secretary-General to present alternatives on how non-staff members could be given access to an effective remedy.

Several delegations emphasized the need to protect whistle-blowers who reported misconduct or cooperate with investigations. Some delegations considered the current remedies insufficient to protect individuals from evaluation. The Sixth Committee was also called upon to consider a specific mechanism in this regard, while the Secretary-General was invited to present a possible framework for improvement.

The work of the United Nations Dispute and Appeals Tribunals was also recognized, with some delegations emphasizing the need for a proper geographical and gender representation on these bodies. Some delegations also supported the Secretary-General’s recommendation to replace the ad litem judges with three full-time judges at the United Nations Dispute Tribunal and others welcomed the changes made granting the same privileges and immunities to judges of both Tribunals.

As regards the power of the Tribunals, interest was expressed in the IIAP’s recommendation that there was a need for the early resolution of receivability issues before the United Nations Dispute Tribunal and that the United Nations Appeals Tribunal should be empowered to address urgent motions in limine. While it was recognized that some of the issues raised by the IIAP fell within the jurisdiction of the Tribunals, delegations emphasized the importance of publicizing the workings of the system and requested an update on the enhancement of the jurisprudential search engine and views by the Secretariat on the rationalization of administrative issuances.

Delegations also emphasized the important role of the Sixth Committee in coordinating and cooperating closely with the Fifth Committee to ensure an appropriate division of labor and avoid overlaps or encroachment of mandates and called for continuing communication on matters relating to this item.

Action taken by the Sixth Committee

At the 22nd meeting, on 26 October 2016, the Committee received a report on the results of the informal consultations and authorized its Chair to send a letter to the President of the General Assembly with a request that it be brought to the attention of the Chair of the Fifth Committee and circulated as a document of the General Assembly. The letter was circulated as an annex to the document A/C.5/71/10.

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