Monday, January 5, 2009

The UN Ethics Office and administrative law

To get things rolling in 2009, a quick link to an interesting article in the Wall Street Journal on recent UN efforts to curb internal misconduct and corruption, including allegations of retaliation against legitimate whistleblowers. The article is generally negative in tone (a subsequent letter to the editor provides a brief corrective). It discusses, amongst other things, the relatively recent establishment of a New-York based UN Ethics Office, led by Robert Benson:

Canadian attorney Robert Benson says that when he arrived at the U.N. in May 2007 he assumed that his New York-based Ethics Office had jurisdiction over the entire organization. But he soon learned it only oversaw the U.N. Secretariat - the U.N.'s main administrative body. Assorted agencies and funds opted to set up their own ethics bureaus.

"I wasn't a student of the United Nations," said Mr. Benson in an interview. "Would it be better to have one office? Absolutely."

The UN says it has no immediate plans to consolidate the various ethics bureaus, but it is finalizing one set of ethical standards to be followed by all its agencies...

The UN... set up Mr. Benson's office to foster "a culture of ethics, transparency and accountability."

The link between administrative law and professional ethics is made absolutely clear in the final sentence. One key question that arises here, however, is the extent to which the unified "ethical standards" that the Ethics Office is elaborating are to have legal force. While it is unlikely that they will themselves be formally binding (as the use of "standards" terminology suggests), it does seem likely that they will be intended to aid interpretation of terms such as "misconduct" in the course of legal proceedings (before, for example, the new UN Disputes and/or Appeals Tribunals). As with so many international standards, then, it would be entirely misleading to assume that because they are formally non-binding they are thus deprived of all legal force or significance.

The Ethics Office thus seems to be one of those hybrid bodies that are increasingly common within global administration: not only is it to function as an administrative body in its own right (through, e.g., the development of standards and other administrative activities) but also as an accountability mechanism, through its general oversight role over the actions of UN officials, and of those of the disparate Ethics Committees. The Terms of Reference of the Ethics Office make this dual function clear:

3.1 The main responsibilities of the Ethics Office are as follows:

  1. Administering the Organization’s financial disclosure programme;
  2. Undertaking the responsibilities assigned to it under the Organization’s policy for the protection of staff against retaliation for reporting misconduct and for cooperating with duly authorized audits or investigations;
  3. Providing confidential advice and guidance to staff on ethical issues (e.g., conflict of interest), including administering an ethics helpline;
  4. Developing standards, training and education on ethics issues, in coordination with the Office of Human Resources Management and other offices as appropriate, including ensuring annual ethics training for all staff;
  5. Such other functions as the Secretary-General considers appropriate for the Office.
It will be interesting to watch the development of the Ethics Office (by following, for example, the updates on the excellent Center for UN Reform Education website), and perhaps in particular the content of its unified ethical standards, the extent to which these contain administrative-law type considerations relating to transparency and accountability, and whether and how these standards are relied upon in proceedings before the UNDT and UNAT in the coming months and years. And it is not impossible that such standards could even begin to permeate those organizations outwith the UN system, in particular if they were to be picked up and relied upon by the ILOAT. In the meantime, the Ethics Office's "Whistleblower Protection Policy", in effect since January 2006 can be found here; the financial disclosure statement referred to above is here; and here is the Secretary General's report on the first 6 months of the Office's activities.

** Update ** Pursuant to a comment below by Carlos Ivan Fuentes, pointing out the extent to which the recent changes in the UN system follow the recommendations of the “Report of the Redesign Panel on the United Nations system of administration of justice”, here is a link to the Report itself, and here, courtesy again of the Center for UN Reform Education website, is a summary.


C.I. Fuentes said...

It is interesting how all of the recommendations of the 2006 Redesign Panel have been taken into account. But I'm starting to wonder if the solution is gonna be as complicated as the problem. I understand the value of unifying the Ombudsmen, Ethics Offices and getting rid of the JAB and JCD... but then you have the new disputes tribunal and its appeals tribunal,
OIOS, the Counsel Office, the Internal Justice Council, etc... Is this really more coherent?

Euan MacDonald said...

Thanks for the comment, Carlos - I'll put a link up to the Redesign Panel's report on the post itself, it's an interesting document. Do you know of any official document that outlines the changes that have been taken since, or that are in the pipeline?

The question of coherence, I suppose, is not really reducible to how many offices there are, but rather how they operate together. On that, I suppose we'll just have to wait and see - although an enhanced internal judicial system may go some way to ensuring it.

Certainly, the more administrative bodies there are, the harder it becomes to ensure smooth operation. On the other had, it may well be that the fragmented and complex nature of the UN system is not well suited to heavily centralised control (I may be wrong, but I don't even think that they have unified the Ethics Offices, just created one with a more general oversight role over them).

But your right - it does seem to be an increasingly labyrinthine "system" (for want of a better word).

Amaury A. Reyes said...

Regarding the UN Dispute body and its appeals body, my observation is is limited to a due administrative process issue. These bodies are so far regulated (correct me if im wrong) under the General Assembly resolution 62/228 of 22 December 2007 on administration of justice at the United Nations, but i do not find any other document related to its procedural rules (Fair Administrative Trial, jurisdictions, matter subject to jurisdiction, injoctions, etc,) to be applied in case that will be brough to those bodies in the near future, taking into account the day that these body will commence its functions according the aforementioned resolution.

Is any plan to issue these procedural rules or any rules of procedure and evidence anytime further? or even so these bodies were due to start its function on January 1st '09, this will be on hold until these rules are available?.

P.S.: I will send you paper Mr. Macdonald by the end of the weekend.

C.I. Fuentes said...

The GA just adopted their statutes on Dec. 18. The Resolution is not available online yet (or I least I haven't been able tyo find it). Also, the dates got moved: the UNDT will start working on July 1st. and the new UNAT on January 1st, 2010. I guess that their rules of procedure will come sometime soon.

Euan MacDonald said...

Many thanks, Carlos!

Amaury A. Reyes said...

Thank you very much for the information.,

UNAT said...

I have seen the recent draft of the UNDT and the appeal resulting therefrom.I think its a much better system than previously.Just in passing I took some time to look at the disputes tribunal of the World Bank and I am shocked of how such a system could have been conceived and justified to dispense justice!

UNAT said...

I think that the new system provided and appeal therefrom is adequate.The appeal body can also consider jurisdictional errors made by the tribunal of the first instance.Only time will tell of any other hiccups that may arise.But its definately better than what existed previously.

In passing I am appalled by the Tribunal of the World bank-I would have thought that such a large organization would have jad a better system.There is nothing like the UN system existing to resolve employment issues.

Anonymous said...

in the name of god

this letter includes a suggestion to the united nations to call a day in each year as ethics day.
this day can follows each one of the below principles or combination of them.

1)during this day,anybody at least for a day leaves watching porn files & pictures.
that's better to clean them from the all memory contained them.

2)visit the family or call them.

3)visit the nature.

i ask everyone

if you are not involved to this topic,please forward this text to who are involved it.