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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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The preceding subsections have traced long-standing flaws and failures in
UN internal legal and administrative processes. Yet all the flaws cited have only
been exacerbated by the UN policy changes and events of the last ten
years: the failure to firmly establish and apply management accountability
and sanctions, "managerial freedom" expansions, and many new conduct
patterns and rules which only further confuse the existing situation of UN
staff rights and legal procedures. Exactly
50 years ago, the International Civil Service Advisory Board (ICSAB, which
preceded the ICSC) published a report on the standards of conduct in the
international civil service, which is not only very well written but has
been highly regarded over all the years, particularly for its sections on
"Basic considerations," especially integrity, and "Conduct within a
Secretariat." For instance,
in 1982, incoming Secretary-General Javier Péréz de
Cuellar, in his first meeting with the UN staff, commended the ICSAB
standards and had them reissued and distributed to all UN staff, "so that
they use it as a guide in their daily life" and can "conduct themselves at
all times in a manner befitting their status as international civil
servants." "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", ST/SGB/1998/19 of 10 December 1998, and "Subject: Standards of conduct",
information circular to UN staff,
ST/IC/82/13 of 26
February 1982.
In 1986 the ACC noted that many
organizations had over the years given a copy of the ICSAB report to every
new staff member. The ACC further observed that major changes had occurred
in the 32 years since 1954, chiefly the vast increase in field programmes
and progress in staff representation and activities. They decided that the report
should be reissued because of its value to staff, and
that: "What has not changed
is the need for the highest standards of efficiency, competence and
integrity in the international civl service; without those qualities, the
organizations could no longer fulfil … their established
purposes. The pressures which
threaten the independence and impartiality of international civil servants
are, however, greater today then ever; it is, then, all the more
important that staff members, for their part, conduct themselves
in a way which will enhance the impact of their service and will
give no foothold to attempts to influence them improperly for the
performance of their duties. … The executive heads
trust that this report will provide them with … knowledge that the
standards they are expected to uphold are the same as have been set for
staff members since the inception of the United Nations system or
organizations." "Preface" added by the ACC in 1986, as included in "Status, basic rights and duties of United
Nations staff members", ST/SGB/1998/19 of 10 December 1998, p. 35, Annex
V. [emphasis added.]
In
1986 the "Group of 18" external experts also emphasized the importance of clear rules,
stating firmly that: "
efficient management of the staff should rest on clear,
coherent and transparent rules and regulations. This will enable the Organization
to secure and retain the services of staff meeting the highest
standards. Clear and coherent
rules and regulations are not in themselves, however, sufficient
… The officials responsible
for the management of the staff, that is, not only the office responsible
for human resources management, but also every manager who is in charge of
a unit … must implement these
rules and regulations. It is important, indeed
fundamental, to develop an institutional spirit in the Organization and to
strengthen it as an entity.
In this respect, staff members at every level have an indispensable
role to play. Special
responsibility for creating a healthy climate rests with the senior
managers.
Recommendation 42 The personnel
management of the Organization must be based upon clear, coherent and
transparent rules. Present
inconsistencies and ambiguities should be eliminated. The current staff rules and
regulations should be revised to take into account the resolutions
and decisions on personnel policy
already adopted by the General Assembly … measures to
implement [them] should be clearly set out in a personnel manual
which should be widely available and kept up to date. …" Report of the
Group of High-Level Intergovernmental Experts to Review the Efficiency of
the Administrative and Financial Functioning of the United
Nations,
A/41/49, 1986, paras. 45, 47, 48 and Recommendation
42. [emphasis
added.]
Progress
in implementing this resolution was quite slow. Meanwhile, the JIU 1993
report on accountability and oversight observed in a subsection on
"Personal accountability" that: " … the existing code of
conduct, although a quite sensible and useful one, was issued in 1954.
… it has never been
updated. OHRM has recently
issued guidance on such matters as equal treatment of men and women,
sexual harassment, and assistance in substance abuse cases. The Inspectors believe, however,
that after 40 years it is long past time to issue comprehensive,
up-to-date guidance on staff conduct which incorporates not only these
topics but such other recent concerns as: -- discrimination
based on age or race; -- privacy issues in
the computer systems era; and -- financial disclosure and conflict
of interest matters." Joint Inspection Unit,
"Accountability and oversight in the United Nations Secretariat", UN
document A/48/420,
1993 , para. 137.
Two
years later, a JIU report on management reform progress found that little
had happened on updating the rules, as the Group of 18 had recommended
almost a decade earlier. The JIU noted that the Secretary-General's 1994
report on reform had emphasized (a) that staff responsibilities must be
clearly defined, and (b) that the legislative norms to which all staff are
accountable must be clear, unambiguous, coherent, comprehensible, duly
promulgated and available to both the supervisors and those
supervised. Joint Inspection Unit,
"Management in the United Nations: Work in progress", JIU/REP/95/8,
A/50/507,1995.
The 1994 Secretary-General's report was
"Establishment of a transparent and effective
system of accountability and responsibility: Report of the
Secretary-General", UN document A/C.5/49/1 of 5 August 1994, paras. 12 and 109.
The
1995 JIU report noted that the Secretariat had listed a dozen areas for
revision, but were quite vague about the status, completion dates, and
preparation responsibilities. The JIU cited the particular importance of
re-establishing key manuals and handbooks with very clear guidance, since
the Administration was stressing the urgent need to delegate authority
throughout the Organization. Joint Inspection Unit,
Chapter II.B., "Progress required," in "Management in the United Nations:
Work in progress", UN document A/50/507,1995, paras. 59-66.
In October 1997
some much-needed progress began to be made. The OIOS observed
that:
"Another area to be
tackled is the huge mass of rules and regulations that has
piled up over the decades and which now confuse rather than guide
administrative activities, most particularly in the fields of
financial and human resource management. Efforts to weed them out are under
way, but the results have yet to be seen. On the other hand, the work of
OIOS recently brought into the open significant lacunae in the legal
instruments of the United Nations. … We have presented
our … [related] findings
to the authors of the draft Code of Conduct, which has meanwhile been
approved by the Secretary-General and would remedy this gap in the UN
rules. Furthermore, OIOS has noted that
the staff regulations and
rules and the administrative issuances are not as clear as they should
be. Indeed, they have too
often protected staff members from being held accountable for their
actions and have done too little to protect the interests of the United
Nations. Efforts made
by our colleagues, notably in the Office of Legal Affairs, to streamline
and strengthen the rules have the full support of OIOS
…" "Report of the Secretary-General on
the activities of the OIOS", UN document A/52/426, 1997,
"Preface".
[emphasis added.]
Unfortunately,
other major participants in revising the Code of Conduct -- the staff
representatives and the General Assembly -- were not so successful. In a concurrent New York staff
journal issue entitled "Standing up for our rights." One staff representative stated
that: "International civil
servants could not sit idly by when confronted with a Code of Conduct
which concentrated mainly on their obligations. The UN system was not an
aristocracy in which obligations took precedence over basic rights. International civil servants laid
claim to five fundamental labour rights: the right to bargain collectively
on working conditions; the right to petition and address governing bodies;
the right to strike; the right to due process and independent legal review
of workers' complaints; and
the right of staff representation to initiate class actions. The UN must now practice what it
preached to the rest of the world."
"Standing up for our rights:
FICSA Statement," UN Staff
Report (New York), December 1997, p. 3.
Another
article observed that with the UN reform process in full swing since
mid-1997, questions arose as to whether there were any real consultations,
since Secretary-General Annan had promised to "minimize disruption and
alleviate any anxiety felt by the staff". Yet a random survey of staff
representatives, despite noting consultation mechanisms on some reform
actions in some departments, found overall that there was little such
explicit consultation going on. "We were given information, that's all"
said one, "There's been no consultation." "Consultations: a
phantom? Staff initiatives
missing in discussions of reform",
UN Staff Report (New York), December 1997, p. 4. UNOG
staff had requested an expert legal opinion on the code of conduct. It
disclosed inter alia that:
"The title of 'Code
of Conduct' is inappropriate for what is essentially an amended version of
the existing Staff Regulations and Staff Rules. … … The right to amend
is not questioned but there are limitations to the right. The most important is that
amendments must not interfere with 'acquired rights' (acquired rights are,
in other words, fundamental conditions of employment. … Moreover, amendments
of non fundamental terms must not be arbitrarily carried out; they must
not amount to an abuse of discretion; among other things, they must be
made in good faith and not be prompted by improper motives; amendments
must be made in a reasonable manner … [including] after
proper and due consultation with the staff. … there are grounds
for questioning the validity of the amendments. …
(a) Lack of
consultation in good faith and in an appropriate fashion … There was no genuine
and open-minded consultation …
(b) Improper motive
-- There is evidence … [of] a
punitive intent …
(c)
Inconsistence of amendments with fundamental terms of employment
(acquired rights) or jus cogens (fundamental and unchangeable principles
of international administrative law) or a higher law (Charter or
Convention, etc.): … [examples
provided]." Professor C. F. Amerasinghe,
"The 'Code of Conduct'",
UN Staff Report (New York), December 1997, pp.
12-13.
[emphasis added.] [Note: Professor Amerasinghe is the author of The law of the international civil service (as applied by International Administrative Tribunals), 2 vols., 2d ed., Clarendon, Oxford (UK), 1994., and Principles of the law of international organizations, Cambridge, Cambridge (UK), 1996.]
A
staff group reviewed the above opinion, which had also been sent to the
Secretary-General, and recommended that staff representatives insist on
further consultations in good faith.
Other groups shared the concerns and objections on the draft and
agreed to continue working together on the matter. "CCISUA update: Code of
Conduct",
UN Staff Report (New York), December
1997, p. 11.
The
General Assembly was also somewhat uneasy. Nevertheless, having considered
the Secretary-General's report (already submitted in the midst of the
above events, in late 1997, and having considered (apparently some) staff
comments, it adopted the revised text of Article I of the Staff
Regulations and Chapter I of the 100 series of the staff rules in
September 1998, to become effective on 1 January 1999. It added several specific changes,
not apparently involving the matters above, and observed the
following: "Noting with concern
the limited time it had at its disposal to consider this matter;
… 4. Emphasizes that
the implementation of new staff regulation 1.2 (b) should take into
account the definition of integrity provided in the [1954 ICSAB report]
and in accordance with … the comments of the
ICSC; 6. Further emphasizes
that managers …are bound
by the duties set out … and that their
higher-level functions and responsibilities entail increased
accountability for proper performance of all their duties … 7. Requests the
Secretary-General to emphasize in the commentary … [that the above
higher level of managerial responsibilities entails a commensurate
increase in [their] accountability; 8. … requests the
Secretary-General to issue to every staff member [with the new rules], the
explanatory commentary, [this resolution] and the 1954 report of [the
ICSAB on "Standards of conduct in the international civil service
." "Proposed United Nations Code
of Conduct: Report of the Secretary-General", UN documents A/52/488 of
17 October 1997 and Add. 1 of 28 July 1998, "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 29
September 1998. An
early 1999 article observed that staff efforts to influence the Code had
failed, and put it in a larger context of hypocrisy. " … last June, the
Palais des Nations [in Geneva] hosted the International Labor Conference,
as thousands of delegates from ILO's tripartite constituencies gathered to
review the implementation of state-of-the-art labor norms and standards
and to foster the rights of workers worldwide. On the other hand, the U.N. is
trying to implement a 'Code of Conduct' which, according to [Professor
Amarasinghe's analysis cited above, is seriously
flawed.] The 'paradox'
… for UN staff
representatives after submission of the Code of Conduct is not a new
phenomenon. … While
staff representatives in other Common System organizations 'negotiate'
with their management counterparts, here at the UN we continue to be
'consulted' only … on the
most important issues … once a year in the
SMCC (Staff-Management Consultative Committee). … [Worse still] staff
representatives receive the proposals submitted by management at the last
minute, too late to 'grasp' the full
…implications, After the meeting, they are
politely told 'thank you very much … see you next
year'.
With the President of FICSA [a system-wide staff group], we
believe that the time has come to demand that our employers comply with a
'Code of Labor Ethics' in all common-system organizations, and
particularly at the United Nations." Xavier Campos, "Down with
those walls", UN Special (Geneva), February 1999, p.
17.
[emphasis added.]
The
General Assembly further noted many unfinished tasks within the Code of
Conduct effort. It called on
the Secretary-General to expedite a report by 1999 on regulations and
rules governing the status, rights and duties of the Secretary-General and
other non-Secretariat officials. It also called for preparation of additional rules for staff groups
such as finance and procurement officers, and staff of separately-funded
organs; to prepare amended rules for [other UN employment groups]; and
noted that it awaited the results of the separate review of the 1954
standards by the ICSC. "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 29
September 1998.
The
Secretary-General's Bulletin containing the "Code of Conduct" was
published and took effect on 1 January 1999. However, it noted that the
extensive commentary it contained is not part of the rules, is not a
legal "norm" or imperative, and does not have the status of a
rule. It is interesting to note that almost all the recent
guidance about managerial accountability and responsibility, which the
Assembly had insisted be emphasized in the Code, is part of this
commentary, that is, it is also not part of the rules but mostly
"advisory" material to "use" in interpreting and applying them. Similarly, the 1954 ICSAB
standards are included, but only as an annex often cited, but not part of
the set of rules that bind staff -- and managers. "Status, basic rights and duties of United
Nations staff members", ST/SGB/1998/19 of 10 December 1998
. Reflecting
on this document in 2000, the Secretary-General stated confidently that
the Secretariat had updated the basic rights,
duties, and status of UN staff members in
order: "
… to
ensure that those provisions would be clearly and unambiguously stated,
and would take into account current situations and needs."
"Accountability and responsibility: Report of
the Secretary-General", A/55/270 of 3 August 2000, para. 8, and
However, even
after all this turmoil and apparently definitive action, Mr. Annan
admitted in another concurrent 2000 report that "task tools" still needed
to be developed to "assist" managers in applying the new rules, and that
work was only ready to begin on the simplification of the
substantive aspects of the rules themselves. In 2002 he
reported again that work had still not begun on simplifying substantive
aspects of the Staff Rules and Regulations, in part due to UN
system-wide discussions.
"Human resources management reform:
Report of the Secretary-General", A/55/253 of 1 August 2000, paras.
26-32, and "Human resources management
reform: Report of the Secretary-General," UN document A/57/293 of 8
August 2002, paras.
20-25.
IO
Watch believes that this situation was very troubling. The Secretariat
continued to make drastic changes to free its managers, but it was still
figuring out, "on the fly", the mechanisms and processes that those
managers needed to apply the rules that were adopted in 1998. Yet the Secretary-General stated, four years later in 2002,
that simplifying the substance of those rules still remained to be done,
sometime. Over
the last ten years, in various ways, at various times, and with various
degrees of specificity, the Administration has in fact introduced much new
or revised guidance on conditions of service and/or standards for all UN
staff. It has dealt inter
alia with accountability; carefully-documented management decisions;
investigations of waste, mismanagement, abuse of authority, fraud, and
whistle-blower protection; harassment; transparency; performance
appraisal; core values; organizational competencies; integrity and
probity; post classification; redeployment programmes; staff relations
with government representatives; and personal
conduct. This
guidance is being introduced in a seemingly never-ending stream from
multiple, competing, and sometimes conflicting Secretariat channels as the
pace of overall management reform races ahead. It includes General
Assembly resolutions and follow-up guidance; public statements of
principle and intent by UN senior officials; new Staff Regulations and
Rules and added commentary thereon; Secretary-General's Bulletins; and
administrative bulletins and various instructions and detailed
implementing guidance.
Meanwhile,
the UN staff rights and duties were reshaped in midstream, as it were, in
1998, with a new overall tone that shifted drastically from an earlier
balanced code of conduct to a new version which seems brusquely focused on
staff obligations and responsibilities, and might be more at home on the
bulletin board at some minimum-security prison or at a drug-abuse recovery
center.
As
a UN staff member observed in comments on the recent, grand, UN integrity
survey of June 2004, of course, "The UN has a 'phone
book' of rules and regulations which are totally useless as they are never
practiced." "Report criticizes the way
UN fights corruption", International Herald Tribune, June 16,
2004. This
is absolutely true for the vast majority of staff who keep their heads
down and go about their work.
However, should they ever misbehave, or have trouble with an
administrative decision or especially with their manager or another senior
official, that set of rules will be used by Administration officials very
talented in these matters to undermine and shut down any appeals. This is more and more possible
since the 1998 compendium of staff rules is falling further and further
behind all the whirlwind "free the managers" changes still going on. Even
worse, those 1998 rules appeared to contain some very glaring omissions.
As this archive discusses in the subsection on Disappearing
Whistle-blowers and in
detail in the section on more recent developments, Suppressed
whistle-blowers , the explicit
processes which the General Assembly called on the Secretary-General in
1994 to employ to ensure that UN staff whistle-blowers are protected
were nowhere to be found in
the 1999 revised staff rules and the new Code of Conduct, although an
obligation of staff to respond fully to requests for information from all
UN-authorized but amateur "investigators" was (and still is)
included. "Staff Regulation 1.2 (r),"
in "Status, basic rights and duties of United Nations staff members,"
ST/SGB/2002/13 of 1 November 2002, page
24.
Also,
the Secretary-General has given the amateurish and procedurally-unbound
Joint Disciplinary Committees increased responsibility to deal with very
sensitive and serious disciplinary cases, but the whole crucial issue of
due process in the JDC's and the entire UN administration of justice
system remains very vague. As
Professor Amerasinghe noted in his 1997 analysis of the draft Code of
Conduct cited above: "(vi) In the Staff
Regulations and Rules dealing with investigations, etc., the
requirements of due process -- such as the right of defense
-- which are fundamental, are not clearly
indicated." Professor C. F. Amerasinghe,
"The 'Code of Conduct'",
UN Staff Report (New York), December 1997, p.
13.
One
must wonder if the critical step of simplifying and clarifying
substantive aspects of the UN staff regulations and rules will ever
be achieved or even started. Has the UN Secretariat thrown out the
precious "baby" (proper UN accountability, transparency, oversight
functions, firm rules, and above all due process) with the "bathwater" of
the accumulated old rules? Of
course, as this entire section on Where is the Rule of Law?
discusses, UN managers have -- seemingly forever -- simply ignored the
rules, streamlined or not, when it suits them, under the autocratic right
granted to the UN Secretary-General, and delegated to dozens of his staff,
to apply exceptions to UN Rules, and -- equally damaging -- to push any
appellants into the internal justice system where UN rules concerning
staff have been ignored or violated, often flagrantly. That provision,
buried deep at the back of the lengthy rules volume, under "General
provisions", states: "Exceptions to the
Staff Rules may be made by the Secretary-General, provided that such
exception is not inconsistent with any staff regulation or other decision
of the General Assembly and provided further that it is agreed to by the
staff member directly affected and is, in the opinion of the
Secretary-General, not prejudicial to the interests of any other staff
member or group of staff members." "Rule 112.2 (b),
in "United Nations
Staff Rules: Staff Regulations and Rules 100.1 to 112.8",
Secretary-General's Bulletin, ST/SGB/2002/1.
In
any event, in 1998 the Secretariat made an apparently selective revision
of the staff regulations and rules and added some "soft" commentary on
important new human resource management responsibilities and issues. But
the Secretary-General admitted in 2000 that "task tools" for managers to
implement them were still needed, and in 2000 and again in 2002 that the
critical work of simplifying the substantive aspects had still not begun.
Thus, the "clear, coherent and transparent rules and regulations"
which the "Group of 18 experts" called for in 1986 to ensure efficient
management in the UN Secretariat still do not exist, almost 20 years
later.
A
classic legal work states that eight criteria need to be met for the rule
of law to exist. In very
simplified form, they are as follows: (1) there must be rules, (2)
created in a public forum and widely disseminated, which are (3) stable,
(4) consistent, (5) clear, and (6) impartially enforced, and (7) will not
punish people retroactively for actions legal when they were committed or
(8) attach blame unless a person acts intentionally or negligently. Lon L. Fuller, The morality of law,
1974 (Harvard Law School) as
summarized in Mike France, "Impeachment: Does the rule of law really
rule?", in International Business Week, February 8, 1999, page
62. In
fact, the multiple policy and procedural changes of UN management reforms raise serious
doubts that the so-called "Code of Conduct" restating the relevant staff
rules -- can still be valid in 2004.
IO Watch concludes therefore that the criteria for the
rule of law to exist within the UN are still not being
met. IO
Watch will return to this extremely important issue in the concluding
subsection on Hope for the Future?
, as Revision of the code of
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