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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 rule of law
The rule of law,
was described by the Right Honourable Sir Ninian Stephen at the annual St
James Lecture in “The rule of law is, if anything, more concerned with and
committed to individual liberty than to democratic governance. It forms a
reliable constitutional barrier between power and people”.
Lord
Denning expressed a similar thought when, speaking in the context of
democracy, he declared that "the executive government must never be allowed more power than
is absolutely necessary. It must always be made subject to the law."
IO Watch seeks
to develop the capacity of the United Nations and all international
organizations to embrace the rule of law, through ensuring that both the
Tribunal system and the quasi-judicial bodies within the international
system of organisations conduct adequate review of administrative
decisions taken within the UN common system, in full compliance with
international norms. One side-effect
of any bureaucracy is the potential for misuse or abuse of power in the
workplace, leading to workplace harassment, psychological “mobbing” or
bullying
One of the behaviours which appears to be prevalent within the United
Nations, and which exemplifies internal labour issues which are not
resolved or addressed through the UN common
system, is the unfortunate behaviour of “mobbing” or “bullying”, defined
by the World Health Organisation’s Occupational and Environmental Health
Programme Booklet No. 4, p. 12 as: “Repeated,
unreasonable behaviour directed towards an employee, or group of
employees, that creates a risk to health and safety.”
Sadly, in a
survey prepared at the request of the World Health Organisation Staff
Association, the rate of “mobbing” or “bullying” experienced by staff in
these organisations was measured at around twice the national average for
public institutions throughout Europe. This unfortunate situation
reflects an undercurrent of unresolved tensions which one would expect in
an organisation not beholden to the rule of law, without a sure method for
dispute resolution and without a sure process for the resolution of
differences between staff, where important administrative decisions are as
often as not executed without proper reference to due process and where
short-term contracts are the key and prevalent characteristic of
conditions of staff employment, creating an understandable underlying
level of tension, distress and performance anxiety in the
workplace. Currently,
up to 60% of staff employed within select international organisations are
on short term contracts. This
situation, whilst it may hold out some short-term economic benefit, is in
violation of ordinary due process in most mature employment systems. The
deliberate structuring of long term-employment under guise of eleven month
contracts interrupted by one month “contract breaks”, is one example of a
common practice in international organisations, such as the World Health
Organisation. Employees in international organisations are often placed on
a series of short term contracts (lasting for periods as short as one
week). This position renders
them susceptible to power imbalances, more vulnerable to mobbing as well
as to other forms of intimidation, including sexual
harassment. [Note: the
empirical case study, by Professor Dieter Zapf of the
What is the rule of law?
What, then, do we mean by the rule of law, and how does the UN common
legal system require changing to conform to the standards set out in
international treaty law, as embodied in the practice of law in many of
the UN’s member states and espoused by leading jurists throughout the
world?
As part of an ongoing effort to provide better legal protection to both
staff working for international organisations and to third parties
effected by their acts, an organisation quite separate from “IO Watch”,
which acts as a monitoring centre and reference point for relevant
documents, the Centre for Accountability of International Organisations
has been formed (see www.caio-ch.org). The Centre is comprised of leading
jurists, academics and senior judges, in order to monitor and report on
international organisations.
The Board focuses on legal protection for both the staff of
international organisations, and on the special difficulties faced by
third party victims of acts of international organisations, given the
complete immunity from suit enjoyed by all international organisations on
behalf of third parties. This
“cloak” of immunity allows international organisations to hide behind a
veil in much the same way some corporate entities do, in creating shell
companies, or complex corporate structures which avoids liability, raising
some interesting parallels by way of comparison. The consistent
criticism raised by both the Board of CAIO, and other leading jurists such
as Justice Geoffrey Robertson Q.C. of the UN’s Sierra Leone War Crimes
Tribunal, is the need for a just, efficient dispute resolution process,
with provision made, where necessary, for the adducing of oral evidence in
a public court system, staffed by appropriately qualified legal officers
and completely independent from the UN’s central bureaucracy. The current system is unwieldy;
claims take a minimum of three years to be processed, with final judgments
often offering little by way of redress - typical awards are between CHF
5,000 and CHF 20,000 even where complainants are found to have been
significantly wronged. This provides the UN administration with little or
no motivation for changing behaviour such as mobbing, bullying or sexual
harassment, as no punitive element is involved. Perpetrators of harassment,
including of sexual harassment, are able to enjoy impunity within the
existing legal system due to the absence of an effective remedy for
victims. Key features of a fair legal system in
compliance International
jurists Geoffrey Robertson Q.C., Louise Doswald-Beck and Dr Ian Seiderman
have pointed out some of the flaws within the UN’s internal legal
system. Geoffrey Robertson
Q.C. described two fundamental ways in which the ILOAT fails to confirm to
the requirements for a judicial body: ·
The internal UN systems
suffer from a lack of proper appointment procedures for the judges, who
are effectively “contract judges”, being appointed for periods of three
years, with no prohibition on re-appointment. It would be appropriate for judges
to be appointed for one term only, perhaps of five or seven years, and by
an independent appointments commission. Clear rules should also be in
force relating to appropriate judicial qualification, namely, that the
judges be lawyers of distinction in the employment field, with some
experience in human rights, and in administrative
law. ·
One of the fundamental
defects, as agreed by senior judges and jurists from many different
systems, is that the internal legal system should permit oral hearings, as
indicated in the ILOAT statute, Article V of which
provides: “The
Tribunal shall decide in each case whether the oral proceedings before it
or any part of them shall be in public or in camera”, plainly and properly
assuming that there will be oral proceedings, which are particularly
necessary in cases where issues of fact are disputed. This is generally the case in
employment law issues involving bullying, mobbing, harassment,
discrimination or other (often hotly-disputed) disputes
involving
questions of fact, to which the law must be applied." Why are
public hearings important? The need for
public hearings has been stressed by a number of courts, but the
requirement that a first instance hearing provide complainants with an
opportunity to be heard (provide a testimony to the court) and to have an
opportunity to cross-examine witnesses from the other side, in conformity
with the concept of the equality of arms, describes a basic standard set
out in most human rights treaties. A number of
texts have been prepared both within the United Nations and within the
Council of Europe which set out the basic requirements for a fair
trial. For example,
Article 6 of the European Court of Human Rights – the Right to a Fair
Trial: Article 6, the right to a fair
trial: 1.
In the determination of his
civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
It is also useful to
overview some of the texts prepared within the United Nations, including
the Basic Principles on the Role of Lawyers,
(1990), adopted by the eighth
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held in Havana (Cuba) from 27 August to 7 September
1990: Endorsed
by the UN General Assembly in its resolution 45/166 of Access to
lawyers and legal services 1.
All persons are entitled to
call upon the assistance of a lawyer of their choice to protect and
establish their rights and to defend them in all stages of criminal
proceedings. 2.
Governments shall ensure
that efficient procedures and responsive mechanisms for effective and
equal access to lawyers are provided for all persons within the Territory
and subject to the jurisdiction, without distinction of any kind, such as
discrimination based on race, colour, ethnic origin, sex, language,
religion, political or other opinion, national or social origin, property,
birth, economic or other status. One
of the problems for victims of harassment and mobbing within the
international system of organisations is the lack of effective remedy for
such problems. International
organisations need to take allegations of harassment seriously; part of
that responsibility is to ensure access to legal representation, but it is
also critical that international organisations implement fair procedures
within their first-tier quasi-judicial bodies, including the right to a
fair trial in accordance with due process. Currently, many first-tier
quasi-judicial boards do not meet simple tests of conflict of interest,
some try to exclude lawyers from attending and others refuse oral
hearings, preventing the adducing of evidence, many refuse document
discovery. All of these
factors prevent complainants from enjoying the right to equality of arms,
with review to an independent appellate court. Implementation of a legal
system which operates independently will help resolve problems and make
the UN not only a fairer workplace for all, but a more efficient
organisation to better serve the needs of its Member
States. The
right to a fair hearing Due process
includes a transparent and clear document discovery process, transparency
within the judicial appointments process, appropriate procedures regarding
conflict of interest within quasi-judicial boards, lawyers not being
excluded from attending hearings and a clear decision-making process,
using agreed standards as described in international law.
As
stated by Secretary-General of the International Commission of Jurists,
Louise Doswald-Beck, in her legal opinion made public in October 2002: the
right to a fair and public hearing is one which is set out in
international treaty law, which has emphasized: that "justice must not
only be done but must be seen to be done" and that the human rights
treaties "guarantee not rights that are theoretical or illusory but rights
that are practical and effective." [Note: Please refer to www.ilo.org/public/english/staffun/info/iloat.] Artico v
Italy, European
Court of Human Rights, case no. 6694/74). The concept of a
fair and public hearing incorporates the right to a fair trial as it is
described in treaty law, including features such as an independent and
impartial tribunal, which satisfies the guarantees of objective
impartiality and the right to equality of arms, including the ability to
contest all argument and evidence adduced by the other party.
Affirmed as a
fundamental duty of the courts in the case of Jansen-Gielen v the
Damages and awards A system which
provides some method of uniform quantification of damages for injuries
sustained, together with a system for measuring the plaintiff’s damage due
to the employer’s acts, where that damage is applicable, is an essential
feature of a functional legal system for injured or sacked workers and
bullied victims. A system of
financial compensation for victims of sexual harassment, together with a
system for protecting both victim (who is often treated much as
whistleblowers are generally treated, that is, very poorly) and harasser
(who is entitled to a fair trial in relation to the offence) is also
required.
However, in
instances where sexual harassment is found to have occurred, the
perpetrator ought to be reprimanded, as a minimum, in the event of a
transgression being found to have taken place. The current system lacks two
essentials in dealing with the problem of sexual harassment. First, there should be a process
by which evidence may be adduced to determine the facts of the case. Sexual harassment cases, by
nature, inevitably involve cases of “he said, she said”. It is important that oral
proceedings take place, particularly in first instance hearings, in order
to hear the evidence, put the allegations to proof and make findings based
on the credibility and reliability of the witnesses in order to lead to
determinations of fact which are systematically reliable. Both are sorely lacking in the
UN’s sexual harassment grievance resolution procedures. For more detail
describing the problems with the grievance procedures within the UN,
please see the report prepared by a New York law firm Chadbourne &
Parke, at the UN Panel of Counsel website http://www.un.org/staff/panelofcounsel/shrep.htm,
which criticises the lack of clarity of current procedures, the absence of
protection for victims and the lack of solutions for victims through
compensation or formal redress.
To this list could be added the absence of formal procedures for
dispute resolution and the more concerning absence of any means of
preventing reoccurrence or of ensuring that such practices are not
tolerated on the workplace. For example, a policy providing for dismissal
of the harasser needs to be supported by a mechanism to ensure that a
perpetrator of sexual harassment is not immediately re-hired by another UN
agency, which happened in the case of Claxton v. Gomez as described
by Houshang Ameri in “Fraud, Waste and Abuse”. Sexual Harassment in the
United Nations System, (1984) University
Press of [Note: the
law firm study is Chadbourne & Parke LLP, which describes the UN’s
sexual harassment policies It
is available at www.un.org/staff/panelofcounsel/shrep.htm] Houshang
Ameri, Fraud, waste and
abuse: Aspects of U.N. management and personnel policies, University
Press of America, Lanham, MD (USA), June 2003.
This should be seen as a natural step forward from a legal system which,
not having been revised since post WWI, needs review and upgrading. The UN
common internal legal system ought to be a working model for the
administration of justice, rather than one which is rightly subject to
significant criticism by leading international jurists. The UN, as the source and
repository of conventions, international treaties and international law,
ought, in accordance with its significant international role and duties,
be able to present a working model for best practice in the administration
of justice in its internal legal system. The
International Commission of Jurists, a Geneva-based NGO which focuses on
the rule of law, has produced a handbook for trial monitoring which
describes minimum standards for fair trial monitoring, reflecting a
practical means of measuring the international human rights mechanisms
which form a bulwark as a final option for bringing either a communication
or complaint against a state party, before either the Human Rights
Committee, the European Court of Human Rights, the Inter-American
Commission of Human Rights or the African Commission on Human and People’s
Rights. According to
these international standards, the core minimum features of a fair trial
should include the right to equality before the law, the right to appeal,
the right to a public hearing and the right to a fair trial incorporating
the principles of equality of arms, access to all relevant information
(including receiving all documents prior
to the trial) and confidence in a legal system which is fair, independent
and impartial at all levels, both in practice, and in
appearance. The right to a fair
hearing incorporates the opportunity for an oral hearing where evidence is
publicly adduced, with opportunity to review evidence on both sides in the
context of equality of arms: both sides should enjoy equal opportunity to
contest the argument and evidence called by the other, and to cross
examine one another’s witnesses.
It seems strange, and rather sad, that the primary legal body
within an organisation which purports to be a working model and
inspiration for best practice in labour law, with a focus on standards of
international law, the International Labour Organisation, does not measure
up to these standards, providing neither public hearings, the right to
appeal, or to equality before the law in the sense in which it is measured
by international law standards, by leading jurists, and jurists bodies,
including the International Commission of Jurists. For a full
overview of the work of the International Commission of Jurists,
see www.icj.org . At his address
at the launch of the Sierra Leone War Crimes Tribunal, Justice Robertson
Q.C. said: “The
success of a Court is not measured by its rate of convictions, but by
whether, at the end of the day, it can be said to have dealt fairly with
every accused brought before it in a process that remains utterly
independent from outside influence, whether from Governments or business
or the media. It
is in that sense that my hope
and belief is that this Court will succeed in the delivery of
international criminal justice. To this goal we aspire, for the sake of
the future peace of this region and this world.” As the proponent
of international legal standards to many legal systems throughout the
world, it behoves the United Nations to embrace the rule of law, as
fundamental not only to a free and democratic society, but to the
advancement of all human rights.
Whilst the civil legal system and legal codes of the law of the
international civil service do not deal with issues which touch the depths
of sorrow and tragedy seen the horrors of the Rwanda genocide, cases often
involve individuals whose lives are ruined through mobbing or unfair
dismissal from the UN, under circumstances which are highly questionable
in terms of due process, and often without anything other than token
redress ever being granted.
It is important that the international organisations comply fully with
that set of principles known as the rule of law, both in its dealings with
its own staff and with third parties, rather than take advantage of an
immunity which exempts the UN from ordinary rule of law principles. To lead by directive alone, yet
not to lead by example, is a leadership flawed in moral authority and
lacking in strength. |
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