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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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SECTION TABLE OF CONTENTS: -- Inept "Administration of Justice"
System -Outmoded internal justice processes
-- Related UN External Initiatives -- Piercing the Cloak of UN Impunity -Revision of the Code of Conduct
-External experts justice reform review
Prologue Since
its inception, the UN and international organisations have enjoyed
international immunity from all national legal systems, acknowledged by
its member States.
International immunity is based on diplomatic immunity, a concept
originating from Roman Law, which has since been well established in both
international law and practice. This international immunity means that
international organisations are immune from suit in national legal systems
as an ordinary feature of their working, due to functional necessity. This
feature is in keeping with international legal personality, which makes
international organisations subjects of international law capable of
enjoying international rights and obligations. ACGM Eyffinger (ed)
Compendium Volkenrechtsgeschiedenis (2nd edn Kluwer Den
Haag 1991) 59, and see Professor A Reinisch
International Organisations before National Courts
( Today, it is an
established concept in law that international organisations may possess
international legal personality.
As a major player on the world stage, with around 35,000 full time
employees, rising to approximately 70,000 employees including part time
workers, the international system of organisations enjoys both authority
and responsibility in its actions on the world stage. However, the actions of senior
officials of the UN enjoy the unique immunity which the UN was granted at
its inception; an invisible cloak which no legal system may touch unless
permission is given for the lifting of the immunity by the Head of the
International Organisation concerned. "Reparation for Injuries
Suffered in the Service of the United Nations", (Advisory Opinion) [1949] ICJ Rep
174, 179, A Reinisch,
International Organisations Before National Courts
( Like world
governments, companies and even NGOs, the acts performed by international
organisations are mixed in terms of outcome; some excellent, some bad,
some mediocre. What is
different in the case of the international organisations is the
international immunity it enjoys with respect to all of its senior staff
(who enjoy diplomatic-level immunity in all their professional acts).
International
immunity is classically divided into three categories; sovereign immunity
held by States, diplomatic immunity afforded to individuals as
representatives of States, and organisational immunities granted to
international organisations. The essence of immunities afforded to
representatives of foreign territories has always been to secure the
unhindered fulfilment of diplomatic functions, such as immunity from
criminal and civil litigation and a guarantee of safe passage. The evolution of
sovereign immunity is discussed in full from section 1.1 to 1.2 of the
Report Commissioned by the Centre for Accountability of International
Organisations and prepared by the Amsterdam International Law Clinic,
pages 11 to 13. See
also, D. B. Michaels,
International Privileges and Immunities, Martinus Nijhoff, Den
Haag, 1984, 11. However, since its
inception, problems have been discernable within the UN’s fragile internal
legal structure. Inherited
from the French civil code system immediately post WWII, it has been
subject to little revision since, one of its key features, the lack of
independence of the internal tribunals and quasi-judicial bodies, which
remain closely tied to the functioning of the international system of
organisations, has been subject to criticism in recent legal opinions
delivered by leading international jurists Geoffrey Robertson Q.C., Louise
Doswald-Beck and Dr Ian Seiderman [Note: available at http://www.ilo.org/public/english/staffun/info/iloat .] Overview The most important
mechanism of accountability for any organization or nation is reliance on
the rule of law and proper judicial processes. Unfortunately, the UN is
uniquely ill-equipped to respond to this urgent need. Unlike
the rest of the world, UN operations are "extra-territorial", i.e. not
bound by national or local laws, and with "diplomatic immunity" for its
staff under a set of conventions on privileges and immunities. (The UN has
also asserted that (as a non-nation-state) it is not even bound by
international conventions, most notably its own Universal Declaration of
Human Rights, and international labour laws on worker rights and
representation.) However,
the UN is itself a creature of international law, and can only very
awkwardly distance its own operations from those laws, particularly as,
during the last decade, its General Assembly resolutions and leadership
statements persistently and very publicly preach the need for human
rights, labor rights, and good government for all the rest of mankind.
Christopher C. Joyner, ed., The United Nations and international law, The American Society of International Law (ASIL) and Cambridge University, Cambridge and New York, 1997, Theodor Meron, The United
Nations Secretariat: The rules and the practice, Lexington Books, D.C.
Heath, Lexington, MA and Toronto, 1977, Yves Beidbeder, The internal
management of UN organizations: The long quest for reform, 1997,
Chapter 11, "The uneven legal protection of UN staff", p. 181,
"Administration of justice in the organizations
of the United Nations common system: Grievance, disciplinary and appeals
procedures", document ICSC/29/R.8 (and Corr. 1 and Adds. 1 and 2) of Chris de Cooker, International
administration: Law and management practice in international
organizations, UNITAR, Martinus Nijhoff, 1988, esp. sections III.1,
I.1, and V.
Within
this presently-closed and home-made legal system, the UN Secretary-General
(and his many duly-delegated and authorized legal advisors and
representatives) has autocratic power, with no independent judiciary and
only weak and erratic legislative oversight from the General Assembly. He
and his representatives have also been granted discretion in making
exceptions to the basic staff and financial rules and regulations approved
by the General Assembly.
"United Nations staff rules", ST/SGB/2002/1,
Because
the UN is a creature of international law, it is useful to give a brief
overview of the complex, uncertain, and evolving but frustrating nature of
that broad field before moving on to this archive's topic of the rule of
law in the UN. The following
dozen quotes give an impression of some of the many dimensions of
international law in practice and how the UN fits in (and see also the
bibliography of "Useful sources" at the end of this
subsection). "Some ordinary villages are
peaceful and well policed.
The global village is of another kind. It has feuds and vendettas which
often break into violence. All the inhabitants are armed. The part-time police force is
amateurish and weak. It is
run by a committee of villagers who rarely agree on what it should
do. Powerful neighbors
sometimes suppress violence by force. Peace will only come to such a
village when the rule of law is imposed."
Jonathan Glover, Humanity: A Moral History of the
Twentieth Century, Chapter
18, "The political containment of tribalism: Policing the global
village", Yale,
" …. International law -- so
reverently invoked, so rarely defined …. Does it exist? Some spheres of international
behavior (e.g., maritime matters, the rights of diplomats) are governed by
law-like regimes: there are enduring and widely-adhered-to conventions,
and institutions for arbitrating disputes. ….
The phrase 'international law'
often is virtually an oxymoron. Law without a sword to
enforce it is mere words, mere admonition or
aspiration. Law must be backed by
coercion legitimized by a political process. The 'international community' has
no such process. …. A true community exists only
when there is consensus about certain matters -- the meaning of freedom, the
nature of rights and duties, sources of legitimacy. …. Rhapsodizing about the U.N. as
the 'international community' incarnate obscures this
fact If 'international law' is defined
as what the 'international community' actually does, the problem
deepens. Regarding force,
history is clear; nations do what they think necessary and feasible.
…. Eager seizure of the label 'legal'
encourages the fallacy that international law is explicit and exhaustive
…. it puts policy at the mercy of a vague and volatile consensus of an
'international community' most members of which are unsuited to serve as
ethicists or judges." George
F. Will, "The perils of 'legality': If international law is really law,
who enacts, construes, adjudicates and enforces it?", Newsweek
(US), "There was always an air of
unreality about the UN Security Council debate on
Why would the Security Council
spend two months deciding to authorize the use of force if its decision
was not binding? How can the
council's decision bind … It is hard to avoid the
conclusion that the charter provisions governing use of force are simply
no longer regarded as binding international
law. … Since 1945, dozens of member
states have engaged in well over 100 inter-state conflicts that have
killed millions of people. This record of violation is
legally significant. … A treaty can lose its binding effect if a
sufficient number of parties engage in conduct that is at odds with the
constraints of the treaty. Of course, it remains politically
useful to act with the backing of the Security Council. But the charter was supposed to be
about more than politics. The urgent issue today is the
breakdown once again of international rules of force. Until that problem is addressed,
the Security Council's deliberations will continue to seem surreal."
Michael J. Glennon, "The rule of law is breaking down",
International Herald Tribune, "While all
… public organizations
try to control the "problems" they are jointly dealing with, there is a
set of actors (both individuals and organizations) who are bent on making
the problem worse. … [these actors]
constitute dark networks striving to achieve ends which create collective
action problems for governments all over the
world. … [Alongside military
and economic power in international relations] … are a variety of
dark networks. Some, like
arms trafficking and drugs are illegal and pursue power and wealth
… whereas some, like
Al Qaeda, wish to destroy the military, economic and cultural power of the
West. … Do [dark networks]
… adopt a similar
structure to cope with their need for secrecy? … is there a point
where dark networks come together? … what can we learn
from studying them that might help legitimate states to combat them?
… [Dark networks] are
a major policy problem, like piracy was in the 18th and 19th centuries.
… While we are in the
very early stages of network evaluation … there is no reason
to restrict our focus to only legal and covert networks when the need to
combat dark networks is so great." H. Brinton
Milward and Jörg Raab, "Dark networks as problems," PA Times (USA),
November 2002, p. 5. "The illegal trade in drugs, arms, intellectual property, people,
and money is booming. Like
the war on terrorism, the fight to control these illicit markets pits
governments against agile, stateless, and resourceful networks empowered
by globalization. Governments
will continue to lose these wars until they adopt new strategies to deal
with a larger, unprecedented struggle that now shapes the world as much as
confrontations with nation-states once did. Why governments can't win [these wars} They are not bound by geography They defy traditional notions of
sovereignty They pit governments against market
forces They pit bureaucracies against
networks Rethinking the problem Develop more flexible notions of
sovereignty Strengthen existing multilateral institutions [particularly
INTERPOL] Devise new mechanisms and strategies Move from repression to regulation." Moisés Naím, "The
five wars of globalization," Foreign Policy, January/February
2003, pp. 29-37. [Note: the
article identifies other areas traded illegally for huge profits,
including human organs, endangered species, stolen art, and toxic
waste. As with most other
Foreign Policy articles, it also contains an excellent guide for
further reading on these topics.]
"President George W. Bush's turn
to the United Nations for help in
The [General] Assembly is usually
mired in speechmaking. The
[Security[ Council is increasingly perceived as a relic of the cold
war. These are not just the
sentiments of neo-conservatives in The real task is to open a serious
debate on what a multilateral institution should be today, and what rules
and instruments it should have.
As the world's leaders arrive for the General Assembly this week,
they would do well to present some concrete ideas on what the United
Nations should be." "Restructuring the UN", International Herald Tribune,
"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 "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.
“ In an interview … Annan said the
invaders had needed permission from the United Nations Security
Council. From the point of
view of the UN charter, ‘it was illegal’, Annan said.
Since the Gulf crisis in
1990-1991, the Security Council had adopted a number of resolutions … the
last in November 2002 … warning Annan ,,, said that it had been
‘up to the Security Council to approve or determine what those
consequences should be.’ [A British spokeswoman said] ‘We
spelled out at the time our reasons for believing the conflict in
[Australian] Prime Minister John
Howard not only rejected Annan’s remarks but criticized the United Nations
as a ‘paralyzed’ body, incapable of acting on major crises, such as the
current one in
[Polish, Bulgarian, and Japanese spokespeople also disagreed or
expressed doubts.]” “ “The UN is not in good shape and
the world is in worse shape. … [UN critics know] … their chosen
target is vulnerable. As a
[ [A panel is looking at changed
threats and Security Council changes] … [major countries seek new
permanent Security Council seats] … Investigations of widespread
corruption in the UN-directed oil-for-food program in
[But then came] the startling
declaration from … [Secretary-General Annan] that the war in
… it may provide a basis for a
battery of lawsuits against the
I … believe that a strong case can
be made that [the war] was legal.
Good lawyers in good faith have disagreed.
… Complex issues, yes, but with a
brutally simple bottom line: unless the UN can [develop] a system that is more streamlined
and efficacious, and less open to legal dispute, it will not be adapted to
the realities of today’s world. …” Roger
Cohen, “As world leaders meet, UN is at a crossroads”, International
Herald Tribune,
“[UN Secretary-General Kofi Annan]
appealed to world leaders yesterday to rally behind the rule of
international law, warning that global standards were being shamelessly
disregarded and selectively applied. … ‘Today the rule of law is at risk
around the world,’ he told the UN General Assembly in
‘It lacks the teeth that turn a
body of law into an effective legal system. Many feel that it is not always
used fairly or effectively; those invoking it do not always practice what
they preach.’”
This year’s assembly comes as
leaders start to lock horns on the tortuous question of UN reform, a
debate upon which Mr. Annan has pinned his and his organisation’s
future. Mr. Annan warned that the system’s
legitimacy was at stake.
‘Just as within a country respect for the law depends on the sense
that all have a say in making and implementing it, so it is in our global
community. All must feel that
international law belongs to them, and protects their legitimate
interests.’
His speech reflected an
organisation facing a sense of crisis. … ” Mark
Turner, “Annan says global rule of law is at risk.” Financial Times
( "[The recent UN High-Level Panel
on Threats, Challenges, and Changes'[ … central conclusion is that,
without Security Council approval, no state should use force to defend
itself against a threat that is not imminent. … If the Council dallies, too bad:
the target state must ask again. The same applies when genocide
occurs. 'Genocide anywhere
…', the Panel declares, ' … should never be tolerated.' But [the panel asserts] … armed
force cannot be used to stop genocide … unless the Security Council
permits it. … The central problem is that the
'global order' posited by the panel is largely non-existent. Notions of justice vary from one
culture to another. … [The Panel] … makes no effort to assess the
effectiveness of the [UN] Charter's rules, whether the benefits of saving
them are worth the costs, whether they still command international
support, or whether alternatives such as strengthening regional
peacekeeping organizations might work better. A little empirical spadework,
coupled with a little more disinterestedness, would have gone a long way
in lighting the way toward a more peaceful and just world. That is the issue -- not how the
Security Council can get a bigger piece of the
action." Michael Glennon, "A stronger
Security Council is no solution", Financial Times
( [Note: Mr. Glennon, a professor of
international law, is the author of Limits of law, prerogatives of
power: Interventionism after Kosovo, "Throughout its history, the
[60-year-old International Court of Justice, the United Nations' judicial
organ] …has averaged only a few cases a year, and … [decided] in fewer
than 100 all told. By
contrast, the World Trade Organization [has heard several hundred cases]
in less than a decade, and the European Court of Justice … has heard
thousands of cases in its half-century existence. …
Why have countries abandoned the
court? The most plausible
answer is that they do not trust the judges to rule impartially, but
expect them to vote the interests of the states of which they are
citizens. Statistics bear out this
conjecture. When their home countries are
parties to litigation, judges vote in favor of them about 90 percent of
the time. … [Additionally, states tend to vote wealthy for wealthy, poor
for poor, democracies for democracies, and authoritarian for
authoritarian]. … Politics matter. Today, [hopes are high] for the
fledgling International Criminal Court … but its prosecutor and judges
have enormous [political discretion] to pick defendants … Successful international
organizations either adapt to great power politics or they wither on the
vine; it is a choice that the supporters of global justice will soon
face." Eric A. Posner, "The international
court in decline", International Herald Tribune,
[Note: Mr. Posner, a
law professor, is the author,
with Jack L. Goldsmith,
of The limits of
international law, to be
released,
2005.
Alongside
all these diverse facets, contentions, and complications of international
law, the UN itself stands exempt. A Convention on the
Privileges and Immunities of the United Nations states that the UN shall
make provision to settle contractual or other disputes of a private law
character to which it is a party.
An informal internal justice system was therefore established in
the Secretariat, but it has long been challenged by a fundamental question
raised in 1974 by a distinguished professor of international law, M. N.
Akehurst ( 'In the early days of the 20th
century, it may have been possible to regard legal relations between
international organizations and their staff as operating outside any
known legal system; such a view is no longer
tenable.'" Peter
Ozorio, [who was a member of a 1974 staff working group] "Legal
rights revisited," UN Special
(
Nevertheless, in the
21st century, the UN's home-made system continues relentlessly on and on,
despite several decades of determined but so far unsuccessful efforts by
the General Assembly and staff groups to reform it, intermingled with
reluctant admissions by the UN leadership of its many inadequacies. At
least, in 2000, Secretary-General Annan stated the fundamental fact
that: "The
jurisdictional immunity of the Organization legally obligates it to
have just and effective internal processes to deal with grievances
and appeals by staff, and with disciplinary cases … [as] an
indispensable aid to maintaining staff morale, as well as
enforcing accountability. ..." "Accountability and responsibility:
Report of the Secretary-General", A/55/270 of 3 August 2000,
Summary, para. 39.
[emphasis added]
Within
this presently-closed and home-made UN legal system, the Secretary-General
(along with his many duly-delegated and authorized legal advisors and
representatives) has autocratic power, with no independent judiciary and
only weak and erratic legislative oversight from the General Assembly. He
and his representatives have also been granted discretion in making
exceptions to the basic staff and financial rules and regulations approved
by the General Assembly.
"United Nations staff rules",
ST/SGB/2002/1, 1 January 2002, inter alia, "Scope and
purpose" and in particular Articles I-II, IV, and VIII-XI; Regulations
1.1, l.1(f), 1.2, 9.1, 10.2 and 12.1-12.4; and Rules 101.2 and 101.3,
109.1, 110.1-110.3, 111.2,
and Rule 112.2.
Most
UN staff (and certainly almost all At
best, staff who speak up can only attempt to defend themselves in
"internal justice" processes that can drag on for up to five years,
achieving no redress but only -- and by no means very often -- some modest
financial reimbursement for the damage done. The managers themselves have
impunity, and the taxpayers of the world pick up the tab for the elaborate
process and any "damage done" payments, sometimes in six-figure dollar
sums, made to the aggrieved staff.
The
UN internal justice system has been sharply criticized for decades for its
inability to protect staff rights. The General Assembly tried in the 1980s
to reform the internal justice system without success, but in 1993 the
General Assembly bluntly instructed the Secretary-General to develop a
"just, transparent, simple, impartial and efficient" system. He agreed
that the existing system was woefully outdated, overloaded, slow,
confused, and expensive, and proposed major reforms to professionalise and
accelerate the appeals process.
But once again the parties could not agree, and another required
review in 1999 has led to only minor cosmetic changes to "patch up" the
old, defective system. In
1987 the then top manager of the UN had expressed grave concern about this
flawed system: "… Lamenting that 'Something has
gone very wrong with our processes', [UN Under-Secretary-General for
Administration and Management Martti Ahtisaari] stressed that justice was
not only important in itself, but was also a basic aspect of good
staff-management relations.
Justice was a 'primary defense against the buildup of feelings of
arbitrariness and discrimination' which, he warned, could undermine staff
morale and 'finally destroy an international organization however high its
ideals and purposes.'" "Staff-management meeting to discuss justice administration reform
and performance reports", Secretariat News [
Yet
almost two decades later, the debilitating UN internal justice system
continues on, although it is roundly criticized by all. Far from solving its many past
operating problems, it has now developed serious new "gaps": "floater" staff, amateur
"investigations" of staff by managers in a quite lawless system, and
disappearing whistle-blowers, as discussed further in the many related
archive subsections under UN Management Accountability
Struggles and Inadequate UN
Oversight . Rule
of law issues in the UN are greatly complicated by a dissonance in
policy. The UN under
Secretary-General Annan has two conflicting positions on the matter. The
first two quotes which follow grandly urge the importance of the rule of
law everywhere, but the third shows a great annoyance within the UN
leadership about rules and regulations which obstruct and impede the UN's
supposedly dynamic managers: "Enhancing the rule of
law On In [an August 2004 report] … to
the Security Council I suggested a number of … precepts or ground rules …
[inter alia] to ensure that all courts created
or assisted by the United Nations are structured and organized in a way
that will ensure that the process of prosecution and trial is credible,
that it complies with established international standards regarding the
independence and impartiality of the judiciary, the effectiveness,
impartiality and fairness of prosecutors and the integrity of the judicial
process; … to recognize and respect the
rights of victims and ensure that relevant processes include specific
measures for their participation and protection
…" "Report of the Secretary-General on the work of the Organization",
UN document A/59/1,
“[UN Secretary-General Kofi Annan]
appealed to world leaders yesterday to rally behind the rule of
international law, warning that global standards were being shamelessly
disregarded and selectively applied. … ‘Today the rule of law is at risk
around the world,’ he told the UN General Assembly in
‘It lacks the teeth that turn a
body of law into an effective legal system. Many feel that it is not always
used fairly or effectively; those invoking it do not always practice what
they preach.’”
This year’s assembly comes as
leaders start to lock horns on the tortuous question of UN reform, a
debate upon which Mr. Annan has pinned his and his organisation’s
future. Mr. Annan warned that the system’s
legitimacy was at stake.
‘Just as within a country respect for the law depends on the sense
that all have a say in making and implementing it, so it is in our global
community. All must
feel that international law belongs to them, and protects their legitimate
interests.’
His speech reflected an
organisation facing a sense of crisis. … ” Mark
Turner, “Annan says global rule of law is at risk.” Financial Times
( "'We are too complicated and too slow. We are over-administered … and
have too many rules and too many regulations' [Mr. Annan] told
staff on 29 October. [He
called] for … simpler procedures and more authority for managers
… The Secretary-General
and his senior managers are addressing shortcomings that impede the
effective use of staff resources. Chief among them: Managers have limited
responsibility over their human and financial resources. This leads directly to the erosion
of accountability at all levels of the
Organization; Complicated rules and procedures
have served to discourage the recruitment, advancement, and mobility of
staff, affecting the UN's capacity to move the right person to the right
place at the right time. This
is essential in a global organization which is increasingly expected to
act quickly to address complex crises and changing
priorities; "Staff
become focus of United Nations modernization: New management culture key
to revitalization," United Nations Focus Series, No. 4, November
1998, pp. 2-3.
No
government, and no public or private organization can be respected and
credible unless it provides, and is widely recognized as providing,
independent and effective judicial processes (and free access to outside
processes) to ensure that it honours its principles, codes of ethics and
conduct, and human and labour rights, through transparency, due process,
full and fair hearings, redress accorded to its citizens or staff, and
sanctions for those responsible for abuse, mismanagement, or misconduct.
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