EMPOWERING THE STAFF FOR HUMAN RIGHTS-BASED CONFLICT RESOLUTION:

THE COORDINATING COUNCIL LAUNCHES THE INFORMACTION PROJECT

“Simply put: given the inadequacies of our
present ‹justice system›, the fact that there
are not even more abuses shows that,
after all, United Nations staff are pretty
‹decent people›. That’s the ‹good news›.
The ‹bad news› is, however, that once
someone in a position to do so has decided
to be abusive there is practically no legal or
material guarantee or effective protection
against the impunity afforded by the present
system… Unfortunately, the reaction by the
(outgoing) UN management team to the
recommendations contained in the report of
the Panel of independent experts is
profoundly disappointing, as it merely seeks
to maintain the status quo. Unless the
new UN management team decides to cut
itself loose from the past to give up their
‹unfair advantage› in the realm of dispute
resolution inside the United Nations, and
clearly and explicitly advocates for a truly
independent, impartial and efficient justice
system (as recommended by the Panel
experts) the prospects for real change
will continue to be bleak.”.

XAVIER CAMPOS, UNOG

The Need to Reform the UN Internal Justice System
Over the last half of the 20th-Century, the world has witnessed an impressive and sustained effort by international organizations to integrate Human Rights, democratic and good governance standards in the main stream of their activities worldwide. Regrettably, all the global initiatives designed to promote human rights, democratic justice and good governance have systematically ignored the “ugly reality at home”, namely, the inadequate human rights observance, access to justice and good governance record of the UN system organizations.
International civil servants have been expected to “actively sell” the new emphasis on human rights, justice and democratic governance approaches to “extra-muros” audiences, while being deprived of the enjoyment of the rights and standards that the UN are proclaiming and enforcing all over the world. The Redesign Panel on the United Nations system of administration of justice (doc. A/61/205) has found that “the United Nations internal justice system is neither professional nor independent and it fails to meet many basic standards of due process established in international human rights instruments” and has asked that an entirely new system be put in place that safeguards the rights of staff members and ensures the effective accountability of managers and staff members. The fundamental human rights, justice and democratic governance guarantees and facilities the UN attempts to promote worldwide are not “too good” for the very international civil servants that are the backbone of global developmental and human rights protection efforts. When it comes to promoting justice and equity, international organizations must take the lead and show that they are capable of “doing to themselves (to their own staff members and employees) what they say they want to do for everybody else”. Showing by example and taking the lead is the best (the only) sure way to maintain (or to regain) credibility. Simply put: given the inadequacy of our present “justice system”, the fact that there are not even more abuses shows that, after all, United Nations staff are “decent people”. That’s the “good news”. The “bad news” is, however, that once someone in a position to do so has decided to be abusive there is practically no legal or material guarantee or effective protection against the impunity afforded by the present system.
At the last CCISUA (Coordinating Committee of UN Staff Unions and Associations) special session held in Geneva, all UN Staff Union and Associations members of CCISUA and participating in SMCC (Staff-Management Consultative Committee) unanimously decided to endorse the analysis and the recommendations contained in the Panel Report. While the two-tiered approach, based on formal adjudicating and informal problemsolving mechanism, proposed by the Panel could have been expanded or streamlined in certain areas, all CCISUA members agreed that their utmost priority, and that of the United Nations, must be now to implement the Panel recommendations without any further delay and in good faith. Any de facto attempt to maintain the present system, or to allow the internal justice bodies (both at JAB and JDC, as well as UNAT level) to continue operating on a “business as usual” basis will ipso facto entail the responsibility of UN management and that of Member States (culpa in eligendo and culpa in vigilando) for the continuation of the violation of fundamental due process rules, and the ensuing injustice and frustration generated by such actions and omissions. Unfortunately, the first reaction by the (outgoing) UN management team to the recommendations contained in the report of the Panel of independent experts is profoundly disappointing, as it merely seeks to maintain the status quo. Unless the new UN management team decides to cut itself loose from the past to give up their “unfair advantage” in the realm of dispute resolution inside the United Nations and clearly advocates for a truly independent, impartial and efficient justice system (as recommended by the Panel experts) the prospects for real change will continue to be bleak. Taking into account the recent European Court of Human Rights jurisprudence with regard to the exercise of jurisdiction by the Court over disputes concerning International Organizations (cases “Waite and Kennedy” and “Beer”), every day that goes by without replacing the present “dysfunctional” system makes more likely that the United Nations and the Member States will end up as defendants before the European Court of Human Rights and become the subjects of an embarrassing public international condemnation. It must be recalled that according to Art.55 of the UN Charter, Member States are obliged to promote the universal and effective observance of Human Rights and Fundamental Freedoms. Given the magnitude of our internal justice problem, all further envisaged measures in the context of the UN reform should be put on hold until the new justice system is up and running. In that connection, whatever the future contractual regime or the conditions of service for international civil servants might be, they all hinge on ensuring effective access to independent, impartial and efficient courts of law for all UN workers and employees as a sine qua non employment condition and as a fundamental human right of staff.

Incorporating Human Rights Norms into the UN Staff Rules
Universal human rights, justice and decency standards have been made explicit and justiciable all over the world to great extent thanks to the United Nations. Universal human rights and fundamental liberties norms are already applicable to UN staff because they have become part of international customary law. It is imperative that the UN internal rules be upgraded to incorporate universally recognized (and UN proclaimed) independence, impartiality, competence and due process standards and guarantees in form of Human Rights and fundamental liberties norms to provide for swift, equitable and effective access to justice for all and to ensure a common culture of accountability, as a strong incentive for early conflict resolution and as an essential deterrent against impunity. Therefore, if we want the United Nations to be taken seriously (as we do), let us then be serious about making universal norms also explicitly part of UN “internal law”. Adding a simple “general clause” to the UN Staff Rules will suffice. It should simply state that:
“All international instruments containing universal human rights standards promulgated by or through the United Nations system as ius cogens and erga omnes norms shall apply mutatis mutandis as part and parcel of the internal United Nations Staff Rules and Regulations”.

Human rights and fundamental liberties norms need not be re-invented by the United Nations. They only need to be incorporated and implemented. They must be viewed as Fundamental Norms of the Organization and should henceforth be used as “constitutional” guarantees (“norms of norms”) and guiding principles for all adjudication and interpretation purposes related to present or future UN Staff Rules and Regulations and the Standards of Conduct.

Ensuring the Enforceability of Individual and Collective Labor Rights
It is a sad paradox that fundamental individual and collective labor and union rights such as those identified in the Secretary General’s “Global Compact Initiative” are still being denied to United Nations workers. When it comes to defending individual and collective labor rights, experience all over the world has shown that mediation and informal conflict resolution approaches work and thrive only as long as they are backed up by swift, efficient and impartial formal adjudication as a “last resort” option. Informal mechanisms can “do better” than formal ones, provided the latter exist, but ombudsmen and mediation cannot replace courts of law and class action. Although the Panel Report does not specifically mention the rights of staff or union representatives in the context of the new justice system, it is imperative that they too are provided with the necessary means to defend their specific rights. Individual and collective labor rights of staff must be made fully justiciable inside the United Nations by guaranteeing direct and effective access of staff and union representatives to the Dispute Judge on an urgent procedure basis, and by allowing them to request cease-and-desist injunctions to stop anti-union retaliation and harassment, and seek immediate relief and ad hoc protection measures and the enforcement, by the powers of the court, of legally binding agreements or bona fidae negotiated settlements. At the same time, in the future system, all persons involved in the adjudication and conflict resolution functions, both formally and informally, including both UN Appeal Tribunal (second level) and Dispute Judges (first level) adjudicators, as well as mediators and ombudsmen must be made fully accountable before independent, impartial and competent courts of law for their actions and omissions with regard to the enforcement of fundamental rights of staff, such as individual and collective labor rights.

Empowering the Staff for Conflict Resolution through the “InformACTION Project”
Introducing fair and effective adjudication and making the primacy of human rights and fundamental liberties explicit in the hierarchy or norms of the Organization is fine. But it is not enough. Human Rights and Fundamental liberties must be explained and implemented ex officio by UN Management to all staff, through mandatory induction and training programs. We must make all staff members, and a fortiori those involved in conflict prevention and resolution aware of the meaning and the relevance of those fundamental norms and realize all their importance as “shared dignity, integrity and decency” standards. Therefore, in anticipation of the reform of our internal justice in the way recommended in the Panel Report, the UNOG Coordinating Council has decided to launch a Pilot Project to promote awareness of relevant universal standards and to empower staff members to prevent and solve conflict by way of state-of-the-art and Human Rights-based negotiation, mediation and arbitration approaches, that we suggest be replicated in all other United Nations duty stations. The overall objective is to introduce a perspective of justice, equity, integrity and accountability in the internal machinery of international organizations, such as the United Nations, and to enlighten and to empower staff. As a first step in that effort, the InformACTION Project aims at providing the training and counseling underpinning for a series of activities encompassing Conflict Prevention, Mediation and Alternative Dispute Resolution and Fair and Fast Arbitration (as a first level conflict resolution instance prior to formal adjudication). Here are some of the specific activities and aspects envisaged by the InformACTION Project:
Human Rights Standards and International HR Jurisprudence
European Labor Law (Principles and Jurisprudence)
Administrative Law (Comparative and International Principles)
General Principles of Civil and Criminal Procedural Law and Due Process
UN Staff Rules and UNAT and ILOAT jurisprudence
Negotiation, Conflict Resolution and ADR Principles and Approaches
Mobbing and Harassment (Prevention and Intervention)

The InformACTION Project will be implemented over a period of six months and will be accessible to all staff. The training component of the Project is structured in form of a series of general lunch-time presentations and specialized workshops. As a result of the Pilot InformACTION training, a core of mediators/arbitrators will be established to provide optional FAST TRACK conflict resolution alternatives to the existing internal justice bodies. Later on, these could be definitely replaced by the new “Culture of Peace” mechanisms.