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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 UNs 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 Jφrg 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." Moisιs Naνm, "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 Annans 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 todays 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 years 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 organisations
future. Mr. Annan warned that the systems
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 years 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 organisations
future. Mr. Annan warned that the systems
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.
The
existing UN internal justice system system, however, is extremely
nontransparent and ambiguous, and deliberately so. Analyzing this system
is much like the blind men feeling the elephant to try to discern what it
is. IO Watch has a certain advantage, since its participants have spent
considerable time inside the feeble system that has become so entrenched.
The
troubled and murky system, however, still has considerable potential for
justice. A body of
poorly-handled cases and highly questionable and embarrassing judgments
has built up, particularly during the last few years. Very significant
"pay-off" sums have sometimes been made to abused staff to smooth over the
actions of incompetent and bad managers. The role of the existing system in
preserving managerial
impunity and evading the rule of law is becoming ever more evident, not
least to the General Assembly.
Examining
these outputs and impacts of the UN internal justice system provides a
factual body of knowledge of its highly improper administrative practices
and judgments. Hopefully,
these building blocks may someday serve to finally establish a legitimate
justice system that provides UN staff the same fundamental legal rights as
people in the rest of the world. The
tired old UN administrative justice system appears seriously out of
place. But instead of more
tinkering to establish the small ombudsman's office and some vague
"streamlining" and training, a fresh and searching analysis of the entire
situation seems urgently needed.
The following subsections, and other parts of this archive, explore
five critical questions. (a)
Are new accountability, investigation, and anti-harassment processes now
being installed in such a jumbled, misleading, and disorderly way that
they threaten to overwhelm the already slow, rigid, and archaic UN
"internal justice" system? (b)
Is the UN internal justice system truly "comprehensive", or are there very
serious and improper quasi-judicial activities going on behind the
scenes? (c) Especially in light of the
Secretariat's failure to implement the 1993 management accountability
system, is it a mere "perception" (as stated but not rebutted by Secretary-General Annan himself in
August 2000) that the internal justice system shields managers from
accountability and sanctions
-- or a reality? (d)
The UN increasingly seeks to lead global efforts toward universal values
and good governance, including active advice and support to, the "real
world" of human rights, judicial reform, and international tribunals. How can it maintain its
credibility in this role if its very own internal justice system is so
clearly unjust? (e)
Are significant reforms available, or being made in other international
organizations, which could serve as models to finally reform this severely
defective UN process?
These
questions are explored throughout this archive, but IO Watch finds that
the answer that they provide to the title of this section, Where is the Rule of
Law? , is "not within the
UN." The UN is eager to
promote the rule of law and advise everyone and anyone else, and it is
revising -- or says it is -- its rules and internal justice system. On
a day-to-day basis, however, IO Watch believes that the UN is falling
further and further behind the conscientious application that ensures the
rule of law,
particularly because of the Secretariat's autocratic decision-making
styles, the right to declare exceptions, the lack of due process provided
to staff, a discriminatory and often very amateurish criminal justice
process, a profound lack of democratic and operational accountability, and
diplomatic immunity that has in too many cases morphed into a pervasive
atmosphere of management impunity. The first subsection
below outlines UN Staff Rights? , a
half-century saga of troubling issues and deficiencies. The second subsection assesses the
Inept "Administration of Justice"
System , and the many unfinished
struggles to reform it. The
third subsection examines the considerable amount of Behind the
Scenes
"justice" in the UN Secretariat, and the fourth further explores Major Ongoing Flaws
in the UN's legal processes and internal justice system. The fifth and sixth
subsections discuss briefly expanding and Related UN External
Initiatives
in advising others on the human rights, judicial, and good governance
processes, and the faint but noticeable recent progress in, and enormous
challenges of, Piercing the Cloak of UN
Impunity .
The seventh subsection
discusses perhaps the most serious area of inadequate human rights and
legal protection in UN operations, Refugee Sexual
Abuses . The final subsection
notes some feasible and much-needed actions that can be taken to revise
the UN's Code of Conduct, have external experts conduct a judicial reform
review (as was done at the World Bank almost a decade ago), and the
important step -- also proposed a decade ago by eminent UN observers -- to establish a UN human rights
ombudsman.
Although this archive
seeks wherever possible to rely on quote excerpts, especially in the UN Performance
Problems section, this and the other
sections combine excerpt quotes with brief IO Watch commentary and
summaries, in order to piece together a chronological "story line." This connective
material is required primarily because the UN's lack of serious attention
to rule-of-law, management accountability, transparency, and corruption
issues means that relevant "needles" must be dug out of the UN information
"haystack" and then linked together.
This situation of course underscores a long-standing UN aversion to
proper internal justice, performance, accountability, oversight,
transparency, and reporting processes as discussed throughout this
archive. The archive material
presented below, as elsewhere, is only an initial compilation. IO Watch
will be adding many more quotations in the future. In this section, in particular, IO
Watch would very much like to add documented contributions written or
suggested by present and former UN staff members, and others
interested. (For an explanation of
the nature, rationale, and parameters of the quoted excerpts found
throughout this archive, please see the subsection on archive Rationale, Development, and
Parameters
.) The following abbreviations of
major UN organizations and entities appear throughout this archive: ACABQ
Advisory Committee on Administrative and Budgetary Questions
ACC
Advisory Committee on Coordination (heads of UN system
agencies,
recently retitled "Chief Executives Board for Coordination")
Board of Auditors of the United
Nations CPC
Committee for Programme & Coordination
DAM
Department of Administration and Management (recently retitled the
Department of Management, DM) DPI
Department of Public Information DPKO
Department of Peace-keeping Operations ECOSOC
Economic and Social Council Fifth Committee
(Administrative and Budgetary) of the General Assembly
ICSC
International Civil Service Commission
JIU
Joint Inspection Unit
OIOS
Office of Internal Oversight Services
OHRM
Office of Human Resources Management UNCTAD
United Nations Conference on Trade and Development
UNHCR
Office of the United Nations High Commissioner for
Refugees
UNEP
United Nations Environment Programme
UNFPA
United Nations Population Fund
UNICEF
United Nations Children's Fund
UNDP
United Nations Development Programme UNRWA
United Nations Relief and Works Agency for
WFP
World Food Programme Useful sources
(Note:
informally assembled by IO Watch, roughly ranked from "most useful" on
down, and subject to change as new sources are added. Because there have been so many failed attempts to address or,
more often, to avoid reform of
the UN internal justice system, that bibliographic information is
shown separately at the end of the subsection following on Inept "Administration of Justice"
System .) de Cooker, Chris,
ed., International administration: law and management practice in
international organisations, UNITAR, Martinus Nijhoff,
Joyner, Christopher C., ed., The United Nations and
international law, The American Society of International Law (ASIL)
and Cambridge University,
Cambridge and New York, 1997. Schachter, Oscar, and Joyner, Christopher, eds., The United Nations legal order, 2 vols., American Society of International Law, Cambridge, University, Cambridge (UK) and Melbourne, 1995, esp. vol. 2, Ch. 23, Jordan, Robert S., "Law of the international service," pp. 1059-1090.
Amerasinghe, C. F., The law of the international civil service (as applied by International Administrative Tribunals), 2 vols., 2d ed., Clarendon, Oxford (UK), 1994. Amerasinghe, C. F., Principles of the institutional law of
international organizations,
Beigbeder, Yves,
The internal management of UN organizations: The long quest for
reform, Chapter 11, "The uneven legal protection of UN staff", Ch. 12 "The staff unions' dilemma:
Confrontation or partnership, St. Martins Press,
Glennon, Michael, Limits of law,
prerogatives of power: Interventionism after Kosovo,
Goldsmith, Jack L.,
and Posner, Eric A., The
limits of international law, to be released,
2005. Beigbeder, Yves, Management problems in United Nations
organizations: Reform or decline?, Frances Pinter,
Meron, Theodor,
The United Nations Secretariat: The rules and the practice,
Lexington Books, D.C. Heath, Lexington, MA and Toronto,
1977. White, Nigel D.,
The United Nations system: Toward international justice, Lynne
Rienner, Boulder, CO ( Coicaud,
Jean-Marc, and Heiskanen, Veijo, eds., The legitimacy of international
organizations, United Nations University, Tokyo, New York, Paris,
2001. Amerasinghe,
Professor C. F., "The 'Code of Conduct'", UN Staff Report
( "Chapter 4: Advancing human rights and society," and Chapter 7: "Covering legal ground", 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. 111-162, 220 - 258. Mark A. Drumbl, Chapter VI, "Law and justice," A global agenda:
Issues before the 57th General Assembly of the United Nations: 2002-2003
edition, Diana Ayton-Shenker, ed., An annual publication of the United
Nations Association of the United States of America (UNA/USA), Rowman
& Littlefield, Lanham, MD, Boulder CO, New York, Oxford, 2002, pp.
215-273. Reinisch, August, "Securing the accountability of international organizations", Global Governance 7(2001), 131-149. Reinisch,
August, International
organizations before national courts, Cambridge Studies in
International and Comparative Law, Cambridge University Press, 2000. Judicial group on strengthening judicial integrity, Record
of First Meeting, Global Programme Against Corruption, Working Paper,
United Nations, Center for International Crime Prevention, Vienna, April
2000. Byung Chul Koh, The
United Nations Administrative Tribunal, "Human rights in
the administration of justice," General Assembly resolution 58/183 of
"Comprehensive
report on the activities of the [UNAT]: Report of the [UNAT]", UN document
58/680 of Joint Inspection
Unit, "Report of the [JIU] on reform of the administration of justice in
the United Nations System: Options for higher recourse instances", UN
document A/57/441 of "Report on the standards of conduct in the international civil service 1954", International Civil Service Advisory Board, COORD/CIVIL SERVICE/5, October 1954 [and included as Annex V of the following document.] "Status, basic rights and duties of
United Nations staff members",
Secretary-General's Bulletin ST/SGB/1998/19 of "Subject: Standards of conduct",
information circular to UN staff,
ST/IC/82/13 of
"Standing up for
our rights: FICSA Statement,"
UN Staff Report ( "Consultations: a
phantom? Staff initiatives
missing in discussions of reform",
UN Staff Report ( "Proposed United
Nations Code of Conduct: Report of the Secretary-General", UN documents
A/52/488 of
"Revisions to
article I of the Staff Regulations and chapter I of the 100 series of the
Staff Rules of the United Nations", General Assembly resolution A/52/252
of "Administration
of justice in the Secretariat: Report of the Secretary-General," UN
document A/56/800 of Joint Inspection
Unit, "Administration of justice in the United Nations," UN document
A/55/57, 2000. Rubin, Alfred P., "National courts and international law", The Fletcher Forum of World Affairs, vol. 26:2, Summer/Fall 2002, pp. 255-259.
Van Wart, Montgomery, "Codes of ethics as living documents", Public Integrity, Fall, 2003, pp.341-346.
Moe, Ronald
C., and Gilmour, Robert S., "Rediscovering principles of public
administration: The neglected foundation of public law", Public
Administration Review, March/April 1995, Vol. 55, No. 2, pp.
135-142. Barnett, Michael N., and Finnemore, Martha, "The politics, power, and pathologies of international organizations", International Organization, vol. 53, no. 4, Autumn 1999, pp. 699-732. Kabir, A. H. Monjurul, "Blanket immunity for the World Bank?",
Star Magazine,
Gibney, Mark, "On the need for an International Civil Court", Fletcher Forum of World Affairs, Vol. 26, No. 2, Summer/Fall 2002, pp. 47-58 James, Barry, "Whistleblower upheld in UN Bosnia police case:
Firing of former officer unfair, court rules", International Herald
Tribune,
Mochalu, Kingsley Chiedu, "Images and reality of war crimes
justice: External perceptions of the International Criminal Tribunal for
Stiles, Hawkins, Darren, "Universal jurisdiction for human rights: From
legal principle to limited reality", Global Governance 9(2003),
347-365.
Tochilovsky, Vladimir, "Globalizing criminal justice: Challenges
for the International Criminal Court", Global Governance 9(2003),
347-365. Simons, Marlise, "For global court, a cautious leader",
International Herald Tribune, Benedetti, Fanny, and Washburn, John L., "Drafting the
International Criminal Court Treaty: Two years to
Tolbert, David, "The International Criminal Tribunal for the Former Yugoslavia: Unforseen successes and foreseeable shortcomings", The Fletcher Forum of World Affairs, vol. 26:2, Summer/Fall 2002, pp. 7-19.
United Nations, Global report on crime and justice, Ed. G.
Newman,
Franceschet, Antonio, "Justice and international organization: Two models of global governance", Global Governance, 8(2002), 19-34. Fredrickson, H. George, "Public administration, governance and the
concept of universal jurisdiction", PA Times
( Minow, Martha,
Between vengeance and forgiveness: Facing history after genocide and
mass violence, Foreword by Judge Richard J. Goldstone, Beacon,
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