After fiercely objecting to the proposals of the UNDT and the UNAT to amend their rules of procedures to restore a more balanced approach to justice benefitting staff and helping curtail the Secretary-General’s maneuvering in court proceedings, which are many, the Secretary-General has now submitted his report and proposals on the “Review of the jurisdictional set-up of the United Nations Common System” A/78/154.
The report will be considered during the 78th upcoming session of the General Assembly, which is due to open today.
To recall the background, the General Assembly, in its resolution 77/257, invited the Secretary-General to complete the work on the outstanding legal and practical aspects of the review of the jurisdictional set-up of the United Nations Common System, including finalizing past proposals and assessing the viability of other options.
The Secretary General’s new report A/78/154 includes a finalized proposal for a joint chamber of the Administrative Tribunal of the International Labour Organization (ILOAT) and the United Nations Appeals Tribunal (UNAT).
It also includes an evaluation of other options that could help, according to the Secretary-General, to preserve the unity of the United Nations Common System in the context of two independent tribunal systems.
This proposal stems from conflicting tribunal judgments that the ILOAT and the UNAT previously issued following decisions taken by the International Civil Service Commission (ICSC) in 2017 concerning the classification of duty stations and their respective post adjustments.
In summary, the Secretary-General considers that establishing a joint chamber could be a suitable measure to help minimize the risk of divergence in the jurisprudence of the two tribunal systems, particularly on ICSC matters.
According to the Secretary-General, maintaining the status quo carries significant risks for the cohesion and consistency of the United Nations Common System on ICSC-related challenges, which in turn carries harmful repercussions for organizations and staff. The Secretary-General further cautions against the possibility of future similar scenarios concerning the Commission’s forthcoming assessment and review of the compensation system.
It is worth recalling that the UN Secretariat has a two-tiered judicial system (UNDT and UNAT), and the General Assembly elects its judges. In contrast, the ILOAT has one Tribunal, is not part of the United Nations administration of justice system, and the General Assembly does not elect its judges.
To understand the far-reaching encroachment attempts of the Secretary-General on the independence of the United Nations Appeals Tribunal and the ILO Appeals Tribunals, one needs only to read Annexes III and IV, which contain the comments of both Tribunals on the Secretary-General’s proposal and report in addition to the subtly hidden and buried WIPO comments.
With respect to ILOAT, the Tribunal referred to its 25 July 2022 and 12 April 2023 letters. It noted that it continues to consider that the Secretary-General’s proposal was “fundamentally unsound and should not be pursued”.
Furthermore, the ILOA Tribunal noted that the new proposals formulated in the report “would limit, in a most problematic way, its existing competence in reviewing matters arising from the United Nations common system.”
The ILOAT further noted that many fundamental concerns regarding the proposed creation of a joint chamber, as expressed in these previous letters, have not been adequately understood and addressed.
For transparency reasons, we request the Secretary-General to make these letters available to member states during the presentation of the report to the 78th GA session to guarantee that the views of the ILOAT are objectively and thoroughly conveyed to member states instead of being tailored by the Secretary-General and his legal counsels as they see fit in their report.
With regards to encouraging informal exchanges between the United Nations Appeals Tribunal and the International Labour Organization (ILO) Administrative Tribunal, the Tribunal noted with some concern that the Secretary-General’s report
“seems to suggest that the exchanges between the Tribunals would have to be “transparently communicated” and/or should be “facilitated and administered” by the United Nations and ILO.
Such administrative arrangements do not appear to us to be a means of allowing informal exchanges of the type contemplated by the General Assembly but rather an entirely inappropriate attempt to control or regulate these exchanges.
If so, they would plainly Not respect the two Tribunals’ full independence and, moreover, could undermine the conditions required for really productive contacts between them.
This Tribunal does not see any need for the involvement of anyone, beyond the Tribunals’ respective Registries, in the organization of such exchanges, apart from the provision of funding.”
That is a powerful statement indeed from the ILOAT. Not sure if the representatives of member states have the time to read these annexes buried at the deep end of the Secretary-General’s report.
With respect to the comments of the United Nations Appeals Tribunal, they were also relegated to the bottom end of this report and included under Annex III.
The UNAT referred to its earlier submissions of 12 April and 5 June 2023 in which it had noted that the fundamental structure under which each of the United Nations and International Labour Organization judicial bodies operated was considerably different.
On the scope of jurisdiction, the UNAT reiterated its earlier observations to the Secretary-General that Assembly resolutions bind the Appeals Tribunal, and as such, the Assembly resolutions, together with the statute of the Appeals Tribunal, limit the Appeals Tribunal’s scope of judicial review of certain cases related to human resources management and administrative and budgetary matters. Furthermore, the Appeals Tribunal is an appellate body, while UNDT is a tribunal of first instance. These significant structural and jurisdictional characteristics do not constrain ILOAT.
“The Appeals Tribunal has stated its concern that the proposed approaches, including the joint chamber, do not address these fundamental differences. The proposed amendments do not appear to acknowledge or address the principled arguments made against this proposal by UNAT, UNDT and ILOAT. “
On the scope of Independence of the Appeals Tribunal, the provision that preliminary rulings of the joint chamber will be binding on the United Nations Tribunals and ILOAT directly and pointedly impacts the independence of each of the tribunals.
“This is further underscored by the prohibition against judges meeting in person to discuss and decide such cases to economize resources.
This is contrary to the internationally accepted process for judicial decision-making and directly impacts the independence of judges to deliberate and exercise their jurisdiction. It ignores or at least underestimates the collegial judicial method, especially where judges are from different nations with different legal systems.
A joint chamber must be adequately resourced, including provision for judges to hold hearings in person and to deliberate in person.
These operational decisions must be made by the judges themselves, who are best placed to decide how cases are handled. Indeed, even more fundamentally, it is a matter of judicial independence that the judges be able to do so and not be directed by the Organization as to how they hear and decide cases.”
Now, we turn to a carefully placed hyperlink in the Secretary-General’s report on page 32, Annex VI, which no one will click or read because the Secretary-General does not want to highlight the degree of objection to his proposal.
This hyperlink leads us to the positions and views of individual stakeholders such as UNISERV and CCISUA, but one organization’s strong views stood out and we saw it fit to include an excerpt from their comments below.
Excerpt from WIPO views
The review was requested by the UN General Assembly in response to five judgments issued by the International Labour Organization Administrative Tribunal (ILOAT) with which it was clearly dissatisfied. This request was made at a time when the General Assembly did not yet know which way the United Nations Dispute Tribunal (UNDT), and ultimately the United Nations Appeals Tribunal (UNAT), would rule on the same matter that had been reviewed by the ILOAT in the above-mentioned judgments.
“In addition, in criticizing the ILOAT’s judgments in such a formal and public manner, and by going as far as to request a review of the entire jurisdictional set up of the UN common system, strong signals were being sent to the judges on the UN Tribunals, when the matter before them was still sub judice, not to follow the ILOAT’s reasoning, which some may consider to be an interference with the judicial independence of the UN judiciary.
WIPO strongly objects to the proposal to establish a joint chamber, which, in short, undermines the authority and independence of the tribunals, as well as the legitimacy of their decisions – bedrock principles of the rule of law.
In addition, the reconfiguration of the jurisdictional set up constitutes a disproportionate and ill-conceived response to the perceived challenge that the review is seeking to address.
The real issue, of course, is the dissatisfaction with the fact that an independent tribunal had indirectly contested the ICSC’s alleged decision-making authority on post adjustment matters, which, according to its Statute, lies with the UN General Assembly.
WIPO requests that its comments be reflected in the report to the UN General Assembly”
And so it goes. WIPO’s comments were not reflected in the Secretary-General’s report and were nowhere to be seen except through a vanishing hyperlink at the end of the report.
How many resources, both financial and human, were spent in the past two years on the Secretary-General’s proposal despite the early warning signs cautioning them against it from all stakeholders? Why do the Secretary-General and his ever-expanding legal team insist on meddling with the system of administration of justice?
