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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 2012
In 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.
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