Jurisdictional Setup of the UN
On 14 Dec 2021, FICSA was invited to join a meeting called by the Working Group of the United Nations Legal Advisers Networks on the Review of the Jurisdictional Setup of the UN Common System.
During the meeting it appeared clear that it was not a way to consult with stakeholders but only a session dedicated to informing the Federations of the work undertaken by the Legal Advisers, who have had 11 prior meetings, and finalized a series of Proposals on the way forward. In addition, it was confirmed that staff would have an opportunity to comment on their proposals in Feb 2022.
The staff federations raised concerns about the lack of consultation and inclusivity in the review, and how the Working Group was formulated.
The staff federations will be briefed on the final report produced by the Working Group of the United Nations Legal Advisers Networks on the Review of the Jurisdictional Setup of the UN Common System on 18 February 2022.
In January 2021, the Report on the initial review of the jurisdictional setup of the UN common system has been issued as document A/75/690
In March 2021, the UNGA’s Advisory Committee on Administrative and Budgetary Questions submitted a report on their analysis of the initial report - https://undocs.org/en/A/75/797
In April 2021, the UNGA responded to the initial review’s report incorporating the views of the Advisory Committee - https://undocs.org/A/res/75/245B
In summary, the UNGA request further report with detailed proposals by September 2022:
option D (Measures involving changes to the adjudication of cases involving ICSC matters)
The option of establishing a joint chamber composed of ILOAT and United Nations Appeals Tribunal judges, which would be exclusively responsible for reviewing ICSC matters (A/75/690, para. 126). According to the report, the joint chamber could potentially: (a) issue interpretative rulings, which would review the legality of ICSC decisions and recommendations before they are adopted; (b) issue preliminary rulings to provide authoritative guidance in the adjudication of a contentious case; (c) fully adjudicate any case involving the legality of an ICSC decision or recommendation; or (d) issue appellate rulings which would review divergent judgments of ILOAT and the United Nations Appeals Tribunal on the implementation of ICSC decisions and recommendations (ibid., para. 128).
measures under option B (unrelated to the structure or jurisdiction of the Tribunals)
Measures directly involving ICSC (ibid., paras. 97–104) and the encouragement of increased exchanges between the two tribunal systems (ibid., para. 105). Ongoing review on the consultative process and working arrangements of the ICSC since 2018.
And the establishment of a process to facilitate the prompt review of judgments and the issuance of guidance from ICSC, which could include, inter alia, revising its recommendations and decisions in a manner that is applicable to all organizations of the common system (ibid. paras. 101–104).
To facilitate drafting the proposals, a WG called the Working Group of the United Nations Legal Advisers Networks on the Review of the Jurisdictional Setup of the UN Common System (A/RES/75/245B) is created.
Staff Representatives are requested to take note of the report, and flag any issues or points of concern to FICSA, and at the same time to their own Organization's legal focal point for the review.
All background documents related to the jurisdictional review are available in the Members Area of the FICSA Website (to navigate there, go to Members Area -> Document Library -> FICSA Database -> Review of Jurisdiction: https://ficsa.org/members-area/documentlibrary/documents.html?group=271 ).
On December 27, 2019, at the 52nd plenary meeting of its 74th session, the United Nations General Assembly adopted Resolutions 74/255A and 74/255B under the agenda item “United Nations Common System.” In Resolution 74/255, paragraph 8, the General Assembly “notes with concern that the organizations of the United Nations common system face the challenge of having two independent administrative tribunals with concurrent jurisdiction among the organizations of the common system […].”
The Secretary-General, in his capacity as Chair of the United Nations System Chief Executives Board for Coordination (CEB), is to conduct a review of the jurisdictional setup of the common system. The review will include a survey of the jurisprudence of both tribunals on ICSC decisions as well as options for promoting consistency in the implementation of ICSC decisions in the context of two independent Tribunal systems. Designated Focal Points would be responsible for coordinating the inputs of organizations or specialized agencies.
In late August, the Presidents of FICSA and the two sister federations requested a meeting with the UN Under-Secretary-General to obtain further information about the review as well as clarification about how staff interests would be protected. FICSA and its sister federations requested full transparency in the review process and assurances that staff voices would be included at every possible step.
On 1 October 2020, in its Communication 64/20, FICSA provided all of its members an overview of the review process, as well as relevant timelines and source documents;
On 9 October 2020, in its Communication 68/20, FICSA announced to its members for their information and comments the availability of the First Draft Review of the jurisdictional setup of the UN common system in the Member’s Area of the FICSA website (https://ficsa.org/members-area.html). The availability of the first draft for comment by all members ensured meaningful consultation of all staff members. FICSA received comments on the first draft until 26 October 2020.
On 29 October 2020, FICSA’s comments on the First Draft Review were sent to the UN Principle Legal Officer. Notably, in its reply to specific proposals, FICSA rejects the establishment of a single administrative tribunal, the establishment of a single appellate mechanism for the UN common system, and recourse to the International Court of Justice. FICSA deems these proposals as not being narrowly tailored to reach the review’s objective of promoting “consistency in the implementation of ICSC decisions and recommendations in the context of the two independent Tribunal systems.” FICSA further reserves comments on the establishment of a Joint ILOAT-UNAT Chamber as the proposal is too general for FICSA to understand the implications forstaff members. FICSA furthermore reserves the right to put forward other options for consideration in the coming weeks and in the second draft.
On the second round of comments just before the end of the year holiday in 2020, FICSA reiterated its position there was no evidence presented that would merit the introduction of reforms to the two justice systems and therefore repeated the recommendation that the status quo be safeguarded. In addition, FICSA noted concern about perceived “forum shopping” by organizations and suggested that a possible next step could be for the issue to be examined under the auspices of the Chief Executives Board (CEB) which should include all stakeholders, including the staff federations.