UN Special
 
                    ONU

RULE OF LAW AND DEMOCRATIC DIALOGUE FOR THE “PEOPLE” OF THE UNITED NATIONS

XAVIER CAMPOS*

One could think of all those staff members who work in different duty stations, at headquarters or in the field, as being the “people” of the United Nations. The truth is that, like all other peoples on earth, the employees and workers of the United Nations are also entitled to enjoy fundamental rights and guarantees, such as:

  • The right to have their dignity and their integrity respected
  • The right to seek redress for their grievances before impartial, independent and effective courts
  • The right to negotiate their conditions of employment

The fundamental human rights, justice and democratic governance guarantees and institutions that the UN so earnestly strives to promote worldwide should also be applied to their own people, the international civil servants that are the backbone of global developmental and human rights protection efforts. The Redesign Panel on the United Nations system of administration of justice 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” (doc. A/61/205). As we know, the UN GA has decided that a new justice system operated by professional judges must be in place by 1 January 2009. This landmark decision has been confirmed by the supreme legislative body of the Organization just a few weeks ago (res. A./C.5/62/L.13 of 19 december 2007). The most important issue to be decided at the next stage will be the deployment of the structure, the powers and the rules that will govern the new system of justice. It is of paramount importance that the future recommendations of the SG to the GA with regard to that subject matter be democratically negotiated with staff prior to their submission, with regard to fundamental matters such as:

  • The power of judges to order “specific performance”. That means, for instance, that staff members irregularly or illegaly dismissed will have to be reinstated and not only offered monetary compensation, and that illegal recruitments and promotions shall be deemed null and void.
  • The accountability of the future judges, as well as all those involved in the formal or informal administration of justice.
  • The availability of “mixed jurisdiction” in the UN internal justice system (to deal with administrative, labour, civil and criminal or quasi-criminal responsibility), ensuring the proper balance and interplay between “forum non conveniens” and conflict rules and avoiding any denial of justice for aggrieved staff members.
  • The responsibility and liability for torts perpetrated against the personal integrity and the dignity of staff members, such as harassment, mobbing, discrimination, psychological torture and duress, as well as fraud, defamation, misappropriation and mismanagement and interference in staff representation affairs, just to name a few.
  • The enforceability of agreements, resolutions and awards obtained as a result of individual and collective grievance procedures.
  • Of course, the underlying norms for all those claims should be the UN promulgated standards on Human Rights and Fundamental Liberties, such as those contained in Universal Declaration of Human Rights and the International Covenants, as well as the 1999 ILO Declaration about Fundamental Rights at Work. They should be immediately introduced into the UN staff rules to function as “constitutional principles” that should guide future adjudication by the UN judges.

As it is the case in any jurisdiction governed by rule of law, the impartial and professional adjudicating bodies soon to be established will be able to provide judicial review of measures, policies and practices and shall interpret the “law” of the United Nations (The Charter and the staff rules and regulations) taking fully into account Human Rights standards and general principles of law. This will have a dramatic effect in the life of the Organization. But this is only half of the job that needs do be done.

To advance in our collective effort, in our common quest for accountability, justice and equity in order to “put the United Nations on the side of the law”, we must now proceed to incorporate the “other pillar”: the establishment of democratic and fully representative mechanisms for social dialogue inside the United Nations. The “people” of the United Nations are also entitled to fundamental labor rights and standards, particularly in connection with the resolution of work-related conflicts, so that these too become fully justiciable inside the Organization. To do so, we need to be bold, creative and fair. But we already have a few hints to guide us in that process:

  • The above-mentioned UNGA decisions on the new justice system have confirmed that our employers want us to leave behind our legacy of lack of accountability and ensuing impunity, despair and frustration.
  • The very valuable precedent by way of the Joint Negotiating Committee established at NY Headquarters (doc. ST/SGB/2007/9).

Let me first identify the legal sources and principles that have inspired the proposal for a Staff-Management Negotiating Committee submitted on behalf of the UNOG Coordinating Council:

  • The principle of building upon (as opposed to ignoring, undercutting or rewriting) universally recognized rights of employees, workers and civil servants, as incorporated in Human Rights norms and in fundamental international labor rights and standards in the area of freedom of association and collective bargaining, such as he 1949 ILO Convention no. 98 about the right to organize and collective bargaining, the 1978 ILO Convention no. 151 about labor relations (public service) and the 1981 ILO Collective Bargaining Convention no.154, and the corresponding Collective Agreements Recommendations no. 91, 113 and 163 on the same subject.
  • The principle of attribution of culpa in contrahendo (established by von Jhering, a beacon of German jurisprudence, over a hundred years ago), that is presently recognized in all legal systems premised on the existence of pre-contractual tort liability and an equitable duty to act and negotiate in good faith.
  • The principle of the sanctity of binding agreements, or pacta sunt servanda, and the inescapable obligation for parties having agreed in good faith to implement in full and in all fairness the contents of their binding agreements.

Specifically, the proposal submitted by the UNOG Coordinating Council foresees:

  • A true negotiating body between a priori asymmetric parties that requires that equality of arms is upheld and guaranteed at all times through the impartial facilitation provided by an independent Moderator, operating at arms-length from both parties, capable, if required, to suggest ways to overcome impasse as well as to identify patterns of unconstructive or evasive behavior.
  • A truly negotiating agenda, focused solely on relevant issues within the area of responsibility of the Secretary General. In this connection, the SG can consider either negotiating himself or delegating his negotiating power to representatives capable of lending final support on his behalf to any negotiated outcome.
  • The submission of proposals for negotiated agreements well in advance the SMNC, with full respect of negotiating fairness and within established deadlines.
  • The obligation for both parties to negotiate in good faith and to be made fully accountable for their negotiating behavior.
  • The possibility that, due to unforeseen circumstances, items can be discussed without observing the established deadlines.

However, agreements reached on that basis shall be considered ad referendum until constituencies confirm their final acceptance by way of special referenda.

  • The right for all participants in the negotiations to enlist legal and technical support by specialists and advisors (at their expense, if so required).
  • The reaching of binding agreements that shall be fully enforceable and shall not be revisited unless force majeure circumstances so require.
  • In case of breach, or in the event of bad faith conduct that may give rise to precontractual or contractual liability, the right of the aggrieved party to request enforcement and compensatory measures before UN jurisdictional bodies or similar adjudicating instances, including by way of mutually agreed binding arbitration.

To state the obvious: In democratic societies under the rule of law, conflict resolution by independent adjudicating third parties must be balanced out with credible and effective problem solving alternatives based on inter partes negotiation in good faith, in order to avoid excessive judicialization. However, now or in the future, it is clear that “no deal is always better than a bad deal”, particularly when access to court offers itself as a feasible alternative. It is high time to move from “Collective Begging” to “Collective Bargaining”. Member States are watching us. As employers, and as parties to the ILO, they know that they have the obligation to ensure the observance of Fundamental Principles at Work. Unless we immediately make progress towards effective and credible staff management negotiating mechanisms, they should commission an independent Panel on Social Dialogue Reform at the United Nations base on state-of-the art principles and practices, so that the “people” of the United Nations can enjoy the protection of Rule of Law and Democratic Dialogue INSIDE of the Organisation.

*Based on a statement read before the Working Group on the Institutionalization of Staff-Management Dialogue, held at UN Headquarters in NY, from 28 through 31 January 2008.

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