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UNAT ruling: a reminder of the UN Legal Counsel’s undertaking to the Italian intern, but the case is still unsettled
24 October 2012In a letter to the UN Administration dated 23 October, Dr. di Giacomo, the Italian former UN intern, has announced that he will go on a day-long hunger strike to express his despair over the excessive delays in resolving his case.
“With all due respect, I don’t understand why it has taken so long to go through all the internal dispute procedures of the Organisation. The dispute started in 2006 and now, in 2012, I am still waiting to settle a problem that could have been resolved in 2008, or two years after the end of my internship,” he wrote.
“From my side, I have contacted practically all the authorities concerned and I have been waiting now for over four years. The delays and the uncertainty of not knowing what kind of «appropriate mode of settlement» I will be effectively offered have had dire consequences on my personal, family and professional life. This limbo situation has jeopardized everything I have worked hard and passionately for, putting me in a position that is no longer sustainable. I began my career as an intern at the Embassy of France in Brunei Darussalam, and continued my training at the Permanent Mission of Italy to the UN, the New York Liaison Office of the World Health Organization, the Delegation of the European Union to the UN and at the UN Department of Economic and Social Affairs. If I mention these posts, it is only to show that, as a trainee diplomat and young good governance expert, a solution to this matter is not a luxury for me, but a basic means to live a life of purpose, empowering me to remain in my profession and to enjoy its moral and material fruits. Simply to underline the immediate need I have for concrete action to settle my case, I have decided that I shall personally begin a 24-hour fast on Saturday 27 October,” he added.
Last month the United Nations Appeals Tribunal released its ruling on this case (UNAT/2012/249). Although the court dismissed the appeal exclusively on the basis of its lack of jurisdiction because Dr. di Giacomo has never been a UN staff member, the court did not forget to mention a point which constitutes the crux of this matter – namely, that since 18 June 2008 the United Nations Under-Secretary General for Legal Affairs and Legal Counsel has promised to find an appropriate solution to this matter. This is expressed in a letter to the Permanent Representative of Italy to the United Nations because, as then acknowledged by the Legal Counsel, “Under Article VIII, Section 29 (b) of the General Convention «[t]he United Nations shall make provisions for appropriate modes of settlement of […] disputes involving any official of the United Nations who by reason of his official capacity enjoys immunity, if immunity has not been waived by the Secretary-General”.
Last year, during case proceedings before the United Nations Dispute Tribunal, Judge Ebrahim-Carstens underlined the UN’s commitment to Dr. di Giacomo, by saying:
“The Tribunal notes that by letter of 18 June 2008, sent by the Under-Secretary-General for Legal Affairs to the Permanent Representative of the Applicant’s country to the United Nations, the Organization appears to have made an undertaking to provide the Applicant with an «appropriate mode of settlement» of his dispute. However, due to the existing jurisdictional limitations, the Tribunal is not competent to consider this application, which stands to be dismissed without consideration of its merits.” (para. 41. di Giacomo UNDT-2011-168)
Furthermore, in view of the importance of the human rights implications of the question involved, Judge Ebrahim-Carstens went on, considering that:
“Where rights and obligations attach, there must be an effective mechanism for resolution of disputes and for reparation of breached rights through appropriate remedies (see Gabaldon 2011-UNAT-120 and Bertucci 2011-UNAT-121, referring to "the right to an effective remedy"). The Tribunal notes, in this regard, the Universal Declaration of Human Rights, which refers to "the right to an effective remedy" and states that "[ e ]veryone is entitled in full equality to a fair and public hearing by an independent and impartial Tribunal, in the determination of his rights and obligations ... " (see arts. 8 and 10), as well as the International Covenant on Civil and Political Rights (1966), which refers to access to "an effective remedy" (art.2.3(a)), encourages the development of "the possibilities of judicial remedy" (art. 2.3(b)), and provides that "[i]n the determination ... of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law" (art. 14.1). The General Assembly, in para. 9 of resolution 64/233 (Administration of justice at the United Nations), dated 22 December 2009, requested the Secretary-General, with respect to remedies available to different categories of non-staff personnel, to analyse and compare the advantages and disadvantages of several options, including granting non-staff personnel access to the Dispute Tribunal and the Appeals Tribunal. On 16 September 2010, the Secretary-General provided a report to the General Assembly on the Administration of justice at the United Nations, discussing recourse mechanisms for non-staff personnel (see AJ65/3 73, Report of the Secretary-General entitled "Administration of justice at the United Nations", paras. 165-191).
The Tribunal notes, however, that AJ65/373 focuses, in large part, on consultants and individual contractors,' and not interns. Although Annex IV to AJ65/373, entitled "Contracts and rules governing relationships between the United Nations and the various categories of non-staff personnel", contains examples of contractual clauses regulating settlement of disputes, the examples provided are for consultancy and individual contractor agreements, and not internship agreements. The standard conditions regulating internships, set out in the Annex to ST/AII2000/9, do not include any dispute resolution provisions, and it is unclear to the Tribunal whether the current legal framework in the Organization contains an effective dispute resolution mechanism for interns. No doubt, proper attention should be given to this issue.” (para. 46. 47. 48. di Giacomo UNDT-2011-168)
These concerns have also attracted the interest of officials of the Italian Ministry of Foreign Affairs and been backed by the Director of the UN Ethics Office, who advised Dr. di Giacomo that “OLA [The United Nations Office of Legal Affairs] would be the appropriate entity to whom you should address this matter to explore alternatives for a solution. The Ethics Office does not have the authority to agree to, or participate in, arbitration or any other type of settlement.”
The promise made to Dr. di Giacomo, and the wording of the legal provisions contained in the letter by the Legal Counsel, make it incomprehensible that the Organization has not taken clear steps to settle this dispute.
From the point of view of international law, this case is different from other disputes involving both staff and non-staff UN personnel, because, as long as the Organization doesn’t provide a solution to Dr. di Giacomo, the UN would be in breach of its international obligations under the General Convention.
The right to obtain redress at the United Nations depends upon the internal rules of the Organization, but these rules cannot be confused with the duty of the Organization to comply with the international obligations under the treaties to which the Organization is party.
In this area, the General Convention has laid the foundation for the establishment of a regime “for appropriate modes of settlement of disputes” involving the United Nations. However, the case of Dr. di Giacomo is a glaring example of how continued delays to address and resolve instances of non-compliance with the requirements of the General Convention directly undermine the credibility of the General Convention to provide for effective access to justice and redress mechanisms, which is a human right in itself guaranteed by the European Convention on Human Rights.
“This case is frustrating as long as the issue of the binding effect of Art. VIII, Section 29 (b) of the Convention on the Privileges and Immunities of the United Nations is not addressed”, Jean-Louis de Baillenx, researcher in international law at the University Paris-2 (Panthéon-Assas), told UNJustice, commenting on the issue of the compatibility between the Organization’s immunity and the delays in providing for an effective mode of settling this dispute.
A few months ago, in July, Eric Bramwell, a UN official, repeatedly contacted Dr. di Giacomo and reassured him that there the will on the part of the Administration to resolve this situation. Even if nothing has materialized as yet, this is a welcome development, as it is a clear indication that the Organization is considering ways to carry out the 2008 UN Legal Counsel’s commitment.
While an exact time-frame has not as yet been determined, UNJustice will continue to advocate a quick and fair settlement of this matter and one that avoids methods of protest on legitimate expectations that may place a human life at risk.