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UN Performance Problems UN Management Accountability Struggles Where is the Rule of Law? Inadequate UN Oversight Recent Developments
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This
subsection of the IO Watch archive is a lesser one, but is included
because it is a significant counterpoint to the other more substantive
sections on the rule of law in the UN. It outlines briefly the emerging
and increasingly extensive UN role in advising, supporting, and exhorting
its The
UN has long sought, with uncertain impact, to be the "moral authority" and
spokesperson for all mankind, through its stream of non-binding General
Assembly resolutions on all subjects, its many global special conferences,
its long succession of "years" declared to advance this or that cause, its
leaders' pronouncements, and, most recently, its new Global Compact
campaign. In the 21st
century, the UN has added a strong emphasis on "good governance",
corruption-fighting, responsive institutions, and the rule of law to
promote global development
and combat poverty.
"Commission on global governance
urges world conference to reform international relations",
International Documents Review, 13 February 1995, pp.
1-2, Dale, Reginald, "A new debate on
'global governance'", International Herald Tribune, 25 July
2000,
Crossette, Barbara, "Bad
governments help keep countries poor, UN asserts", International Herald
Tribune, April 28, 2000, and "Phoney democracies", The
Economist, June 24th, 2000, p. 17.
Further, Secretary-General Annan
urged in 2000 that weak states must be strengthened, anachronistic
hierarchies changed, and decision-making structures revised to support a
robust international legal order. All this should lead to greater
participation, accountability, and transparency to open up international
public processes -- including the UN -- to civil society, the private
sector, and other groups. "We the peoples: The role of the
United Nations in the twenty-first century: Report of the
Secretary-General ", UN document A/54/2000, 2000, paras.
41-46.
Of
particular interest, of course, is the increasingly widespread recognition
that corruption poisons economic, political, and social processes
worldwide, and the UN's growing role in this area. For several decades the United Nations has held
global congresses on combating crime and corruption, and Secretary-General
Butros Ghali told the 1995 global congress on combating crime and
corruption that the UN would
“continue
to play a major catalytic role in this field”
and work to “reinforce
…
national efforts.” An ECOSOC resolution asked him to
undertake joint international activities against mounting corruption
problems, and provided a draft international code of conduct for public
office holders. "Rising crime is impairing
development and well-being of humanity, states Secretary-General in
message to Ninth UN Crime Congress", UN document SG/SM/95/105 of 28
April 1995, and "Action against corruption", and Annex "Draft international
code of conduct for public office holders", Economic and Social Council
resolution 1995/14 of 24
July 1995.
Subsequently,
and until very recently, however, the UN has concentrated on technical
cooperation and advisory services in crime prevention and criminal
justice. In 1999, however, it devoted its 10th UN Crime Congress to broad
reflections on crime and justice in the 21st century.
"Vienna: 10th UN Crime Congress:
Making concerted efforts to combat organized crime", International
Herald Tribune, 14 April 2000.
In
recent years, global anti-corruption leadership largely passed from these
UN conferences to the World Bank, civil society groups like Transparency
International, and the Organisation for Economic Cooperation and
Development (OECD). "Stop the rot: A new treaty … is just the beginning of the fight against
corruption", and "A global war against bribery", Economist, 1999, pp. 19-23 and
25, Stuart C. Gilman, "An idea whose
time has come: The international experience … in developing anticorruption systems",
Public Integrity, Spring 2000, pp. 135-155,
"Anti-Corruption Resource Center"
of the World Bank Group, Transparency International, www.transparency.org/
However,
recently the modest UN anti-corruption efforts were jarred by some Member
States into more vigorous activity to exert its universality, through a
new global anti-corruption convention. In
November 2003, the General Assembly unanimously adopted a treaty designed
to strengthen international cooperation and make it harder to hide stolen
assets. The new U.N. Convention Against Corruption took less than two
years to negotiate, an exceptional pace for such UN
activities. Secretary-General
Annan called the new treaty "a remarkable achievement" that "sends a clear
message that the international community is determined to prevent and
control corruption." Speaking
to the General Assembly before its adoption of the Convention, he
said: "It warns the
corrupt that betrayal of the public trust will no longer be
tolerated. And it reaffirms
the importance of core values, such as honesty, respect for the rule of
law, accountability and transparency, in promoting development and making
the world a better place for all."
Jim Wurst,
UN Wire, November 3, 2003.
The
UN's top crime fighter, Antonio Maria Costa, also emphasized that "The
convention has teeth. It is
binding in many respects." Of
course, IO Watch must point out, once again, the enormous gap between this
forceful UN leadership rhetoric and the UN corruption problems discussed
throughout this archive, not least in Mr. Costa's own office in
Vienna. For these reasons,
the new UN Convention on Corruption is discussed further in the concluding
major section on Recent Developments
under Other Major Problems
. One can only hope that the Convention's "teeth" may someday beginn to
bite firmly in the UN Secretariat. Secretary-General
Annan has also often emphasized the critical importance of governance and
rule of law themes, especially since the UN's Millennium Summit. This included his firm admonition
that "Member states had better deliver on their promises" concerning this
"grand design to change the world."
In an appearance before the UNDP executive board in September 2000,
he stated that " … good governance comprise[s]
the rule of law, effective state institutions, transparency and
accountability in the management of human affairs, respect for human
rights and the participation of all citizens in the decisions that affect
their lives. … I hope that I have said enough
to make it clear why UNDP is
so central to the whole mission of the United Nations, and to me
personally. Through UNDP, the
UN is present all over the world and is seen to be dealing with the actual
problems faced by the great majority of the world's people." "Annan, aides lose no time in Summit follow-up," Earth Times News Service, September 12, 2000. IO Watch believes that
it is only right that the UN Secretariat itself start to "deliver on its
promises," especially on broad "rule of law" issues in three main
areas. The first area
is institutional development and good governance work. The UN, through the UNDP and the
Secretariat's Department of Economic and Social Affairs, now bills itself
as the largest multilateral provider of technical assistance for
governance and democracy.
Other UN and UN system agencies such as UNICEF and the ILO have
also worked in these areas. Secretary-General Annan told over 100 national
delegations at a Fifth Global Forum on Re-inventing Government in Mexico
City in November 2003 that: "The public sector must challenge
itself continuously to improve the way it does business." "Governments agree to bolster public sector," PA Times
(USA), December 2003, p. 7. UNDP has, for
instance, helped reformulate municipal law in dozens of countries to make
governments more accountable and transparent. It examined key factors of good
governance in its 2002 human development report. There was a considerable
gap in the report, however, in describing how the UN itself is responding
to these imperatives. One can only hope that the UNDP will soon turn its
growing expertise and analytical attention to the UN's own shortcomings in
this field. "Building more democratic international institutions", in Human
Development Report 2002: Deepening democracy in a fragmented
world,
UNDP, Oxford University, New York and Oxford, 2002, pp. 112-117.
The second area
is human rights. The first
fifty years of implementation of the Universal Declaration of Human Rights
of 1948 passed rather slowly.
But the UN has become very active in supportive and advisory human
rights activities worldwide in the past half-dozen years, as the
formidable old concepts of "national sovereignty" ("don't you dare meddle
in our domestic affairs, however dubiously or outrageously we handle
them") have diminished . . . somewhat. However, the UN has
its own serious problems to resolve, especially in its UN Commission on
Human Rights, which for the past few years has been engaged in a
continuing struggle to see who will dominate its work -- the Member States
committed to human rights expansion and application, or those committed to
continuing human rights restriction. (This important ongoing battle will
be described in more detail and on a continuing basis in this archive's
subsection of Human Rights
under UN Performance
Problems .) In addition, although
the UN now asserts that it has taken major steps to "mainstream" human
rights concerns and emphases throughout its programmes, this archive,
under the Staff Rights? subsection, has
testified to the fact that the Secretariat has gravely failed to address
the fundamental human rights of one abused minority right in front of it
-- the UN staff -- with obvious debilitating impact on its credibility in
human rights matters, and the health, morale, and integrity of the
international civil service "New human rights chief pledges 'Bridge-Building: Q & A: Mary Robinson," International Herald Tribune, September 24, 1997. The third area
of IO Watch attention will be devoted to the most closely-related UN
recent initiatives of all, those concerning UN efforts to advise and lead
the world in expanding the rule and institutions of law. Initially, IO Watch would note the
following UN pronouncements and activities: In his 2003 annual
report, Mr. Annan stated that he had made strengthening international law
a UN priority, especially by promoting Member States' participation in the
international legal order. He
noted, however, that this would not be an easy
process: "Last year … the World Summit on
Sustainable Development … resulted in the performance by 48 states of a
total of 83 treaty actions relating to 39 treaties in the area of economic
development and environmental protection. … Many States fail to sign or ratify
treaties, however, … because of a simple shortage of technical expertise
necessary for the performance of treaty actions. Some also lack the expertise to
enact the necessary laws to implement the treaties that they have signed
or ratified or to train the personnel required to apply those laws. In order to address those needs, I
… [have sought to offer appropriate technical assistance.]" "Report of the Secretary-General on the work of the Organization,"
UN document A/58/1, 2003, paras. 191-192.
The 2003 report of the
UNA/USA on issues before the General Assembly noted that international
laws comes from a wide variety of sources, including UN bodies, especially
legislative organs under the General Assembly, tribunals to adjudicate
civil claims between states, and tribunals to adjudicate criminal charges
against individuals. Among interests of newer interest to international
accountability issues in 2003 were: "Criminal charges against
individuals. … the most significant advances in
international law now involve not disputes between states, but rather
criminal charges against individuals … [emerging] from violations of
international human rights and humanitarian laws that are so serious as to
incur individual criminal sanctions.
Those violations include crimes against humanity, genocide, and
serious war crimes. … In addition, … international
criminal law also prohibits the crime of aggression. Unlike the other offenses,
however, the crime of aggression regulates not an individual's conduct
during armed conflict, but rather the decision to engage in armed
conflict. Also unlike the
other offenses, the crime of aggression remains undefined. The Security Council has
historically held the power to determine when aggression has occurred, and
the Council's permanent members have resisted sharing that authority."
Chapter 7: "Covering legal ground", by Neal Higgins, in A global agenda: Issues before
the 58th General Assembly of the United Nations: 2003-2004 edition,
Angela Drakulich, ed., An annual publication of the United Nations
Association of the United States of America, UNA/USA, New York, Oxford,
2003, pp. 217-253 [233-234]
.
Articles in 2001 and
2002 on UN advice and assistance to judicial processes in Cambodia
provided an interesting (initial) coda on the UN Secretariat's view of its
role in advising countries in judicial processes, despite its own sorry
internal system. The second quote, by the Secretariat's top legal
official, who was an active participant in the UN's so-called
"administration of justice" system, is of particular relevance to the UN
hypocrisy issue: "After months of haggling over
details, the National Assembly [of Cambodia] at last passed legislation
this week that will enable a special tribunal to shed light on the darkest
chapter of Cambodian history. …. It has taken two years for the
UN's legal experts and the government of Hun Sen to agree on a framework
for the new court. Some UN
lawyers and human rights organizations still claim that its complex
provisions fall short of international standards.
…. The legislation still has to [be
approved]. After that it will
be scrutinised by the UN too.
There could be sticking points. Mr. Hun Sen has frequently accused
the UN of trying to dictate the terms of co-operation, thus souring
relations with a UN legal team in New York that often seems out of touch
with Cambodian political and cultural sensitivities.
…. The Cambodian model -- assuming that it works and proves
it is able to carry out its task both cheaply and efficiently -- could influence the way the UN
handles future tribunals. A similar framework is already being talked
about for Sierra Leone." "Trials in Cambodia: Better late than never: A tribunal to
investigate Khmer Rouge crimes takes shape", The Economist, July
14, 2001, p. 58. "The International Criminal Court
will soon come into being … … so it may seem strange that in
February, after more than four years of talks, the United Nations
Secretary-General decided to withdraw from negotiations with the Cambodian
government on establishment of a court to try the leaders of the Khmer
Rouge regime. … [In] our discussions … the issue became
whether the UN could participate in a national court as envisaged by the
government … When … it appeared that the UN was
being asked to be part of a court that would fall short of necessary
international standards of independence, impartiality and objectivity, the
secretary-general decided to end UN
participation. He … strongly believes that
the UN should not be part of a court that would fail to provide
victims … with the credible justice they deserve. In addition, UN affiliation to
such a court could set a precedent for lowering international
standards. we made assiduous efforts to
develop a Cambodian court … that would meet international standards of
justice. … Under the [proposed] scenario,
the United Nations name would have been attached to a judicial
process over which it would have had little or no
control." Hans Corell, "No justice for victims of the Khmer Rouge: Why the UN backed off," International Herald Tribune, 19 June 2002. [emphasis added] [Note:
The author was until 2004, the UN Under-Secretary General for legal
affairs.]. |
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