By Kingsley Chiedu Moghalu and - -
GENEVA, Nov 2 2007 (IPS)

For the first time in its six decades of existence, the United Nations\’ internal system of administrative justice has been significantly reformed, writes Kingsley Chiedu Moghalu, a member of the Redesign Panel on the United Nations System of Administration of Justice. The author writes that in the new system, independent judges with legal training and real judicial powers will review and issue decisions that are binding even on the Secretary-General, who was previously considered essentially above UN administrative law. Justice – including alternative methods of dispute resolution such as mediation — will be accessible not just for UN staff in New York, Geneva, and Vienna, but also personnel in far-flung field outposts. There is still some distance to travel before the new system formally comes into effect in early 2009. But perhaps the innovative reforms will ultimately help create the culture of accountability in the UN that is so necessary if the organisation is to attract stronger political support. In addition, without this kind of reform, it might be impossible to achieve others – including restructuring the Security Council in a manner that reflects the realities of the 21st century rather than those of 1945.

Then in 2006, the reform process moved to address an equally fundamental question, that of accountability inside the United Nations Secretariat, after the General Assembly asked then Secretary-General Kofi Annan to appoint an independent panel of senior experts to redesign the organisation’s internal accountability system. It was called the Redesign Panel on the System of Administration of Justice in the United Nations

In December 2005, the Secretary-General selected me to serve on this body. The other members were a retired Australian supreme court judge, a Canadian appeals court judge, an Egyptian professor of international law and former judge of the International Court of Justice (the World Court), and a former foreign minister of Peru.

The panel, the work of which was seen as a fundamental component of management reform in the UN, would work for six months in New York and submit its recommendations to the General Assembly. It was to address the question: what kind of organisation or workplace is the United Nations? Those who know the UN well know that this question is as central to the reform process as any other.

Beyond its high ideals, the United Nations is an organisation run by mortals. Most UN officials are well-motivated and act with the objectivity and sense of responsibility you would expect of diplomats and international civil servants. Some senior managers, however, suffer from delusions of unlimited power over their underlings, which sometimes leads to administrative decisions that violate due process. Attempts to seek redress internally can take years, by which time the manager in question is often long gone. There are episodes of discrimination. Conflicts and tensions frequently develop among UN officials even as they mediate the world’s wars and render humanitarian and development assistance around the world . A few staffers have committed acts for which, in some countries, jail time would be a real prospect. You will find analogous situations in every large organisation, public or private.

Safeguards and mechanisms to insure accountability are essential to prevent or address abuse and resolve conflicts. In an organisation of 55,000 staff members from nearly 200 countries and as many cultures, the need for an effective system of accountability and dispute resolution takes on a unique urgency. And when it comes to accountability, the real question the Redesign Panel had to address was: can United Nations staffers find justice in an international organisation that has immunity in international law and so cannot be sued in the courts of any country? And can both senior managers and staffers be held accountable for administrative and financial abuse or other misconduct?

Like most multilateral organisations, the United Nations has an internal system of administrative justice, put in place in the 1940s shortly after it was established, when the body had but a few hundred staff members. Today, for a vastly larger organisation, this system is deeply dysfunctional. The Panel found it slow, inefficient, and ineffective. The UN Secretariat is essentially unaccountable.

In addition to this deficit of justice and accountability, the UN suffers from another flaw: its failure, in the words of Secretary-General Ban Ki-Moon, to “practice what it preaches”. If the United Nations promotes human rights around the world — as it should — why should the scales of justice be out of kilter inside the organisation?

The next question addressed by the panel was how far it could go in recommending reforms to the existing accountability framework. By the time we had completed interviews with staff members, diplomats of various regional groups at the UN, senior managers and staff unions, it became clear that the system was so broken, and the stakes so high, that the whole accountability framework and its mechanisms needed to be redesigned and re-engineered.

In mid-2006 the Redesign Panel recommended to the General Assembly a fundamental and comprehensive overhaul of the internal justice system. Surprising many observers and sceptics, the Assembly recently approved the recommendations for a new accountability framework – an outcome that Under-Secretary-General for Management Alicia Barcena described as “a landmark decision that will have a profound effect on the inner workings of the United Nations for many years to come”.

This is the first time in its six decades of existence that the UN’s recourse system has been significantly reformed. That this was accomplished in the charged atmosphere of competing national interests that has surrounded the reform question is remarkable. Previous attempts to establish an effective and independent accountability system in the United Nations administration failed.

Moreover, the “balance of power” that an independent internal accountability framework in the UN creates should be of more than a passing interest to the governments of developing countries, some of which see UN reform as yet another round in the power struggle over who will control the world body – the rich countries that provide most of the UN’s budget and want to shape the UN in their own image (and frequently in their national interests), or the multitudes of poorer countries that make up two-thirds of the organisation and want to retain influence in how it is managed.

In this new system, independent judges with legal training and real judicial powers will review and issue decisions that are binding even on the Secretary-General, who was previously considered essentially above UN administrative law and could only be served with non-binding recommendations. Justice – including alternative methods of dispute resolution such as mediation — will be accessible not just for UN staff in New York, Geneva, and Vienna, but also personnel in far-flung field outposts from Afghanistan to Sudan who are the real face of the United Nations in the 21st century.

There is still some distance to travel before the new system formally comes into effect in early 2009. But perhaps the innovative reforms recommended by the Redesign Panel will ultimately help create the culture of accountability in the United Nations that is so necessary if the organisation is to attract stronger political support. In addition, without this kind of reform, it might be impossible to achieve others – including restructuring the Security Council in a manner that reflects the realities of the 21st century rather than those of 1945. (END/COPYRIGHT IPS)

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By Kingsley Chiedu Moghalu and - -
GENEVA, Jan 31 2004 (IPS)

The international crisis generated by the US invasion of Iraq captures the tension in world politics between the \’\’international community\’\’ as represented in the UN, and the role of power and its attendant interests, writes Kingsley Moghalu, an international lawyer and head of resource mobilisation and global partnerships at the Global Fund to Fight AIDS, Tuberculosis and Malaria in Geneva, Switzerland. In this analysis, the author argues that the problem with a unipolar world is that international law –a significant component in the maintenance of order in world politics– can become a major casualty. In such a world, international law can be violated with little direct consequence to the hegemonic power. Far from consolidating order, such use of power, even in the name of freedom, human rights, and liberal democracy, will rather increase disorder. A certain degree of anarchy will always exist in an international society based on sovereign states and mobile non-state actors that pursue frequently divergent interests. We must manage that anarchy by addressing the fundamental issues that exacerbate it. The way forward is not the balance of power of bye-gone years but a balance of approach in which the world\’s hegemon has not only special circumstances but special responsibilities of global leadership.

The international crisis generated by the US invasion of Iraq captures the tension in world politics between the ”international community” as represented in the UN, and the role of power and its attendant interests. That event will have profound consequences for international relations and especially for the future direction of international law, the role of the United Nations, and the future of United States foreign policy.

With the implosion of the Soviet Union and the Cold War long over, the world is left with an American power that is not only dominant but has practically no effective balance in sight. China remains a major global power, though for now an inward-looking one. Europe is partly allied to the hegemonic power, partly opposed to it.

The problem with a unipolar world is that international law –a significant component in the maintenance of order in world politics– can become a major casualty. In such a world, international law can be violated with little direct consequence to the hegemonic power. Far from consolidating order, such use of power, even in the name of freedom, human rights, and liberal democracy, will rather increase disorder.

The disappointment that many outside the United States felt at the American invasion of Iraq stems mainly from a faith in international law that misunderstands its fundamental nature. Theorists have spent lakes of ink on whether international law, lacking as it does the centralised, coercive power or structure of law in the municipal sphere — a government with power to legislate, police and prisons to enforce — is indeed law. It is, but for different reasons.

States obey and respect international law first, because, as Austrian legal philosopher Hans Kelsen argued, members of the international society of states can enforce it on their own in certain circumstances; second, they believe it is in their national interest to do so; and third, because of the influence of international or domestic public opinion — the interstate equivalent of peer pressure. No state, however powerful, wants to be viewed as a habitual law breaker. Which is why, whatever its real motives, the United States has justified its action in Iraq as an exercise of its right to pre-emptive self-defence. It also argues that it acted to enforce international law, represented in the UN Security Council resolutions it believed Saddam had serially violated.

Pre-emptive self-defence is a controversial notion but one that actually has some support in the works of influential international lawyers of centuries past and in customary international law. Hugo Grotius, the Dutch jurist that is considered the father of international law, argued in his book ”On the Law of War and Peace”(1625) that it was legitimate ”to kill him who is preparing to kill”. There is a certain analogy between this statement and US President George Bush’s assertion that ”the violent restraint of violent men” is sometimes necessary.

The future will answer the question of whether or not Saddam had weapons of mass destruction. But, when in 1837 Britain attacked an American ship, the Caroline, in American waters and argued pre-emptive self-defence, American secretary of state Daniel Webster argued that the doctrine was applicable only where ”the necessity for self-defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation”.

This brings us back to the UN Charter and the future of the organisation in world politics. That the UN has been wounded by the Iraq crisis cannot be doubted. But hasty obituaries of the organisation in the heat of the crisis were decidedly premature. For one, it is a far more elastic and adaptive organisation than the high-minded League of Nations. For another, the United States, despite its power, frequently needs the legitimacy conferred by the United Nations. Although it acted ultimately on its own with a ”coalition of the willing”, the US sought that legitimacy in the form of an authorising UN resolution — without success.

In a recent article in Foreign Affairs (”Why the US Needs the UN”) UN Under-Secretary-General Shashi Tharoor noted that all states act both unilaterally and multilaterally at different times. The United States’ desire for the United Nations to return to Iraq is proof that these two realities can co-exist comfortably. That is the real nature of the international society. The US may be the world’s hegemon, but the loci of power and legitimacy are not always the same.

There are those who lament a unipolar world, but we need to remember that balance-of-power systems, despite their advantages, have historically not guaranteed international order.

Then there are those who believe that the global distribution of power is the problem, not the solution, that the dominance of the United States is a better guarantee of global stability, because America’s use of power is far more responsible than the tendencies of its adversaries, and because the energies that go into maintaining a multipolar balance detract from real progress.

A certain degree of anarchy will always exist in an international society that is based on sovereign states and mobile non-state actors that pursue frequently divergent interests. We must manage that anarchy by addressing the fundamental issues that exacerbate it. The way forward is not the balance of power of bye-gone years. Rather, it lies in a balance of approach in which the world’s hegemon, by virtue of its unique power, has not only special circumstances but special responsibilities of global leadership. In so doing, we will ensure not a utopian world of serene peace, but peace in the sense of absence of the conflict that attends the world of disorder in which we live now. (END/COPYRIGHT IPS)

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