Sixth Committee (Legal) — 68th session
Administration of justice at the United Nations (Agenda item 143)
Summary of work
Background (source: A/68/100/Add.1)
The General Assembly considered the item at its fifty-fifth to fifty-seventh sessions, at its fifty-ninth session and at its sixty-first to sixty-sixth sessions (resolutions 55/258, 57/307, 59/283, 62/228, 63/253, 64/119 and 64/233, 65/251 and 66/237 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 decided to establish: (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 and 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 decided to adopt the statutes of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal; also decided that those Tribunals would be operational as of 1 July 2009; and further decided 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).
The item has been dealt within both the Fifth Committee and Sixth Committee with the latter focusing on the legal aspects.
Consideration of the item in the Fifth Committee
At its sixty-seventh session, the General Assembly recalled section XI of its resolution 55/258 of 14 June 2001, its resolutions 57/307 of 15 April 2003, 59/266 of 23 December 2004, 59/283 of 13 April 2005, 61/261 of 4 April 2007, 62/228 of 22 December 2007, 63/253 of 24 December 2008, 64/233 of 22 December 2009, 65/251 of 24 December 2010 and 66/237 of 24 December 2011, as well as its decisions 63/531 of 11 December 2008 and 65/513 of 6 December 2010, and endorsed the conclusions and recommendations contained in the report of the Advisory Committee on Administrative and Budgetary Questions (A/67/547), subject to the provisions of the present resolution (resolution 67/241).
Also at its sixty-seventh session, with regard to the informal system, the General Assembly requested the Secretary-General to recommend to the Assembly at its sixty-eighth session additional measures to encourage recourse to informal resolution of disputes and to avoid unnecessary litigation, to propose measures to encourage informal dispute resolution, to take concrete measures to address the current organizational culture wherein there is a tendency to shift responsibility for the resolution of conflict upwards in the organizational hierarchy, to report on progress made on the implementation of 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, to report to it on the revised terms of reference for the Office of the United Nations Ombudsman and Mediation Services and to ensure that the terms of reference and guidelines for the Office are promulgated as soon as possible. The Assembly also welcomed the information provided informally by the Office of the United Nations Ombudsman and Mediation Service on the financial and administrative implications resulting from settlements reached through informal dispute resolution, and requested the Office to provide to the Assembly, at its sixty-eighth session, another informal briefing on such implications (resolution 67/241).
Also at the same session, the General Assembly decided, with regard to the formal system, to revert, at its sixty-eighth session, to the issue of the mandate and functioning of the Office of Staff Legal Assistance, that the overall level of resources for the Office of Staff Legal Assistance should be maintained at its current level until the Assembly takes a decision regarding a staff-funded scheme, and to remain seized of the matter of the proposed expedited arbitration procedures for consultants and individual contractors developed by the Secretary-General and contained in annex IV to his report on administration of justice at the United Nations at the sixty-seventh session (A/67/265 and Corr.1) (resolution 67/241).
Also at the same session, the General Assembly requested the Secretary-General, with regard to the formal system, and in consultation with the Internal Justice Council and other relevant bodies, to prepare a code of conduct for legal representatives who are external individuals and not staff members and to report thereon at its sixty-eighth session and, when submitting a single preferred proposal for a joint financing option for the Office of Staff Legal Assistance by the Organization and the staff for its consideration and approval by the Assembly at the its sixty-eighth session, to do so in consultation with all relevant stakeholders, including the Internal Justice Council and staff representatives. The Assembly also requested the Secretary-General: to continue to solicit responses to facilitate the submission of further information to the Assembly, for consideration at its sixty-eighth session, on the practice of tribunals in other international organizations and in Member States regarding awards for moral damages, emotional distress, procedural irregularities and violations of due process; to continue to include information on disputes involving non-staff personnel in the context of both management evaluation and informal mediation in his respective reports and to provide information also on existing measures to institutionalize good management practice that aim to avoid or mitigate disputes involving the different categories of non-staff personnel; and to make every effort to expedite the finalization of agreements on cost-sharing arrangements for the totality of the internal justice system, including on the expected reimbursement of approximately $4.5 million from the participating United Nations entities, and to report thereon at its sixty-eighth session. The Assembly further requested the Secretary-General: to submit to it at its sixty-eighth session proposals with reference to accountability of individuals where violations of the rules and procedures of the Organization have led to financial loss; to entrust the Internal Justice Council with including the views of both the Dispute Tribunal and the Appeals Tribunal in its annual reports; to provide the reports requested in paragraphs 13, 18, 19, 44, 48, 49, 54 and 55 of resolution 67/241 in a single comprehensive report on administration of justice; and to ensure the provision of functional courtrooms with adequate facilities as a matter of urgency (resolution 67/241).
Also at the same session, the General Assembly invited the Internal Justice Council to specify its recommendations on the stipulated qualifications for the Appeals Tribunal judges and to provide its views on appropriate options for effective measures against the filing of frivolous applications, and requested the Council to provide recommendations and to report on lessons learned drawn from the delays in selecting new members of the Council (resolution 67/241).
Consideration of the item in the Sixth Committee
At its sixty-seventh session, as set out in a letter from the Chair of the Sixth Committee to the Chair of the Fifth Committee (A/C.5/67/9), the Sixth Committee considered the legal aspects of the reports submitted by the Secretary-General (A/67/265 and Corr.1) and the Internal Justice Council (A/67/98), as well as the amendments to the rules of procedure of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, which were adopted by the Tribunals subject to the approval of the General Assembly (see A/67/349), and drew the attention of the Fifth Committee to a number of specific issues relating to the legal aspects of those reports.
Consideration at the sixty-eighth session
The Sixth Committee considered the item at its 27th and 28th meetings, on 6 and 8 November 2013, respectively (see A/C.6/68/SR.27 and 28).
Statements were made by the representatives of: The European Union (the candidate countries the former Yugoslav Republic of Macedonia, Montenegro, Iceland and Serbia, the countries of the stabilisation and association process and potential candidates Albania and Bosnia and Herzegovina, as well as Armenia and Georgia aligned themselves with the statement), New Zealand (also on behalf of Australia and Canada), Switzerland (also on behalf of Liechtenstein), the United States of America, Cuba (on behalf of the Community of Latin American and Caribbean States (CELAC)), Tonga and the Russian Federation.
Delegations welcomed the reports of the Secretary-General (A/68/346) and the Internal Justice Council (the “IJC”) (A/68/309), and the view was expressed that it was vital for the Tribunals to remain independent. Some delegations praised the marked improvement in the efficiency of the system, while noting that challenges remained. In this regard, the Dispute Tribunal’s decreased backlog of cases was welcomed, though concern was also expressed that a backlog remained.
A number of delegations expressed support for the informal dispute resolution mechanisms, and the development of incentives to further promote the settlement of disputes was encouraged. Some delegations commended the Management Evaluation Unit, particularly for its role in identifying cases that could be settled. Support was also expressed for efforts to explore mediation through the Office of the Ombudsman.
Some delegations expressed support for the work of the Office of Staff Legal Assistance (the “OSLA”). The funding shortfall with respect to the OSLA was noted, and OSLA was encouraged to settle where appropriate. Some delegations also expressed their interest in the proposal for staff funding of the OSLA, while continued funding of the OSLA by the organization was also supported. A number of delegations expressed support for the development of a code of conduct for all counsel appearing before the Tribunals.
Some delegations recalled the important function of the IJC. A willingness to consider the IJC’s proposals on the qualifications of Appeals Tribunal judges was indicated. Some delegations also noted that the issue of the privileges and immunities of judges, which had been considered by the IJC, required further attention. It was suggested in this regard that judges of both Tribunals should be granted privileges and immunities as per article 19 of the General Convention. Some delegations also took note of, and another supported, the proposal of the IJC regarding abuse of proceedings, though the view was also expressed that a lack of a definition of abuse of proceedings had not created difficulties to date.
Regarding the issue of ad litem judges, the point was made that the extension of ad litem judges should only be temporary. According to another view, the issue of ad litem judges was within the purview of the Fifth Committee. It was also stressed that the judges should not exercise power beyond that which is conferred under the Statutes of the Tribunals.
On the issue of moral damages, it was noted that the Appeals Tribunal approach was in line with that of courts around the world.
Several delegations welcomed, and another took note of, the proposed interim independent assessment. Attention was drawn to aspects of the assessment that would require legal expertise, and there was also a call for efforts to determine a method of conducting the assessment in an efficient, cost-effective manner.
Concern was expressed regarding the lack of procedures for non-staff personnel. Some delegations favoured an adequate solution for the representation of non-staff personnel.
Some delegations called for continuing communication with the Fifth Committee on matters relating to this agenda item.
At its 27th meeting on 6 November 2013, the Committee decided to hold informal consultations on this item under the chairmanship of Mr. Thomas Fitschen (Germany), who then gave an oral report to the Committee on the results of the informal consultations at the 28th meeting of the Committee on 8 November 2013.
Action taken by the Sixth Committee
At its 28th meeting, on 8 November 2013, the Sixth Committee decided that its Chairman would address a letter to the President of the General Assembly, drawing his attention to certain specific issues relating to the legal aspects of the reports submitted under the item as discussed in the Sixth Committee. The letter would contain 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 document A/C.5/68/11.