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[p18]
In the matter of the Application for Review of Judgement No. 333 of the
United Nations Administrative Tribunal,
The Court,
composed as above,
gives the following Advisory Opinion
1. The questions upon which the advisory opinion of the Court has been asked
were laid before the Court by a letter dated 28 August 1984, filed in the
Registry on 10 September 1984, from the Secretary-General of the United
Nations. By that letter the Secretary-General informed the Court that the
Committee on Applications for Review of Administrative Tribunal Judgements
had, pursuant to Article 11 of the Statute of the United Nations
Administrative Tribunal, decided on 23 August 1984 that there was a
substantial basis for the application made to that Committee for review of
Administrative Tribunal Judgement No. 333, and had accordingly decided to
request an advisory opinion of the Court. The decision of the Committee,
which was set out in extenso in the Secretary-General's letter, and
certified copies of which in English and French were enclosed with that
letter, read as follows:
"The Committee on Applications for Review of Administrative Tribunal
Judgements at the 4th meeting of its twenty-fourth session on 23 August 1984
decided that there was a substantial basis, within the meaning of article
11 of the statute of the Administrative Tribunal, for the application for
review of Administrative Tribunal Judgement No. 333 delivered at Geneva on 8
June 1984.
Accordingly the Committee on Applications for Review of Administrative
Tribunal Judgements requests an advisory opinion of the International Court
of Justice on the following questions:
'(1) In its Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the United
Nations Administrative Tribunal fail to exercise jurisdiction vested in it
by not responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judgement
No. 333, err on questions of law relating to provisions of the Charter of
the United Nations ?'"
2. In accordance with Article 66, paragraph 1, of the Statute of the Court
notice of the request for an advisory opinion was given by a letter from the
Deputy-Registrar dated 28 September 1984 to all States entitled to appear
before the Court; a copy of the Secretary-General's letter setting out the
decision of the Committee was transmitted to those States.
3. Pursuant to Article 65, paragraph 2, of the Statute and to Article 104 of
the Rules of Court, the Secretary-General of the United Nations transmitted
to the Court a dossier of documents likely to throw light upon the question;
these documents reached the Registry in English on 20 December 1984 and in
French on 3 January 1985. On 6 March 1987, on the instructions of the Court
the Registrar requested the Secretary-General to supply certain background
information to supplement the dossier; the information was supplied on 27
April 1987. [p 20]
4. The President of the Court decided on 13 September 1984 that the United
Nations and its member States were to be considered as likely to be able to
furnish information on the question. Accordingly by a letter of 28
September 1984, the Deputy-Registrar notified the Organization and its
member States, pursuant to Article 66, paragraph 2, of the Statute of the
Court, that the Court would be prepared to receive written statements from
them within a time-limit fixed at 14 December 1984 by an Order of the
President dated 13 September 1984.
5. At the request of the Secretary-General of the United Nations, the
President of the Court, by Order of 30 November 1984, extended that
time-limit to 28 February 1985.
6. Within the time-limit as so extended, written statements were received
from the Governments of Canada, Italy, the Union of Soviet Socialist
Republics and the United States of America, and from the Secretary-General
of the United Nations; in addition, the Secretary-General transmitted to the
Court, pursuant to Article 11, paragraph 2, of the Statute of the
Administrative Tribunal, a statement setting forth the views of Mr.
Vladimir Victorovich Yakimetz, the former staff member to whom the Judgement
of the Administrative Tribunal relates.
7. By a letter from the Registrar, dated 5 March 1985, copies of these
statements were communicated to the United Nations and to the States which
had presented such statements, in accordance with Article 66, paragraph 4,
of the Statute.
8. By the same letter of 5 March 1985, Canada, Italy, the Union of Soviet
Socialist Republics and the United States of America, as well as the United
Nations, were informed that the President of the Court, pursuant to Article
66, paragraph 4, of its Statute, had decided to permit any State or
organization having presented or transmitted a written statement to submit
comments in writing on the statement made or transmitted by any other, and
had fixed 31 May 1985 as the time-limit for the submission of such comments.
The time-limit was subsequently extended to 1 July 1985; within the
time-limit as so extended, comments were received in the Registry from the
Secretary-General, who also transmitted the comments of Mr. Yakimetz, and
from the United States of America.
9. On 8 July 1985, copies of these comments were communicated to the United
Nations and to the States which had presented written statements, and by a
letter from the Registrar, dated 3 November 1986, they were informed that
the Court did not intend to hold any public sitting for the purpose of
hearing oral statements in the case.
**
10. The Judgement of the United Nations Administrative Tribunal (Judgement
No. 333) which was the subject of the application to the Committee on
Applications for Review of Administrative Tribunal Judgements resulting in
the present request for advisory opinion was given on 8 June 1984 in case
No. 322, Yakimetz v. the Secretary-General of the United Nations. The facts
of that case, as found by the Tribunal, and as set out in the documents
submitted to the Tribunal, may, for the purposes of the present opinion, be
summarized as follows. On 20 July 1977, in a letter [p 21] addressed to the
Assistant Secretary-General for Personnel Services, the Deputy Permanent
Representative to the United Nations of the Union of Soviet Socialist
Republics recommended Mr. Vladimir Victorovich Yaki-metz (hereinafter called
"the Applicant"), a national of the USSR who had been employed by the United
Nations in 1969-1974, for a post of reviser (P-4) in the Russian Translation
Service of the United Nations. On 23 November 1977 the Applicant was offered
"a five-year fixed-term appointment, on secondment from the USSR Government,
at step IV of the First Officer (P-4) level, as Reviser in the Russian
Service". The letter of appointment, which took effect on 27 December 1977,
was issued on behalf of the Secretary-General on 28 December 1977 and
accepted by the Applicant on 24 January 1978; it did not mention secondment,
and under "Special Conditions" specified "None". On 5 October 1981 the
Applicant was transferred as Programme Officer to the Programme Plan-ning
Section, Programme Planning and Co-ordination Office, Department of
International Economic and Social Affairs. On 6 December 1982 the Applicant
was recommended for promotion to P-5. The Applicant's appointment was then
extended for one year, expiring on 26 December 1983; the letter of
appointment, dated 8 December 1982, included a "special condition" that he
was "on secondment from the Government of the Union of Soviet Socialist
Republics", which he accepted without comment.
11. On 8 February 1983 the Assistant Secretary-General for Programme
Planning and Co-ordination informed the Applicant that it was his intention
to request an extension of his contract after the current contract expired
on 26 December 1983, since he believed that "it would be in the interests of
the Office to have your services continue" and asked him whether he would be
in a position to accept such an extension. The Administrative Tribunal found
that "evidence was available" that about this time
"the USSR authorities were contemplating replacing the Applicant by another
person whom they had already selected and whom they wished to be trained
further by the Applicant"
and that
"It was suggested to him that he should leave for Moscow early in 1983 for
this purpose, but his application for leave was refused by the United
Nations." (Judgement, para. XI.)
On 9 February 1983 the Applicant applied for asylum in the United States of
America. On 10 February 1983 he informed the Permanent Representative of
the USSR to the United Nations that he was resigning from his position with
the Ministry of Foreign Affairs of the USSR and from all [p 22] other
official positions he held in the Soviet Government, and that he had made an
application to the Government of the United States of America requesting
asylum. By a letter of the same date the Applicant notified the
Secretary-General, under Staff Rule 104.4 (c), of his intention to acquire
permanent resident status in the United States of America, and informed him
that he had applied for asylum and resigned "from all official positions I
hold in the Government of the Soviet Union"; in that letter he assured the
Secretary-General of his "wish and intention to continue to perform all my
obligations under my employment contract". On 28 February 1983 the Director
of the Division of Personnel Administration informed the Applicant that the
Secretary-General had decided to place him on special leave with full pay,
effective 1 March 1983 and until further notice, in accordance with Staff
Rule 105.2 (a), and that any other decision pertaining to his case would be
taken by the Secretary-General at a later stage. On 1 March 1983, in a
letter to the Director of the Division of Personnel Administration, the
Applicant asked to be advised of the precise reasons as to "why the leave
had been granted", and asked for clarification on a number of points. On 11
March 1983, following a communication from the Executive Assistant to the
Secretary-General addressed to the Director of the Division of Personnel
Administration, the latter informed the Applicant that the
Secretary-General had also "determined that, at this juncture and pending
further review, it is in the best interest of the Organization that [the
Applicant] do not enter the premises of the United Nations", with immediate
effect and until further notice. In that letter the Director also dealt with
the questions put by the Applicant on 1 March 1983.
12. On 17 March 1983 the Applicant wrote to the Secretary-General asking for
a review under Staff Rule 111.3 (a) of the decision to place him on special
leave, and reiterating his request for a written explanation as to why it
was considered in the best interest of the Organization that he did not
enter the premises of the United Nations; he added, however, that on the
advice of his counsel and under protest, he would of course comply with the
Secretary-General's decision. On 29 June 1983 the Applicant was promoted to
P-5 with effect from 1 April 1983.
13. On 25 October 1983 the Applicant addressed a memorandum to the Assistant
Secretary-General for Programme Planning and Co-ordination, recalling that
his fixed-term contract with the United Nations was due to expire on 26
December 1983, and expressing the hope that it would be found possible on
the basis of his performance to recommend a further extension of his
contract with the United Nations, "or even better a career appointment". On
8 November 1983 the Assistant Secretary-General replied, praising the
Applicant's performance and concluding:
[p 23]
"From my perspective as head of this Office, I find no difficulty in
recommending a further extension to your contract and intend to do so at an
appropriate time."
On 23 November 1983 the Deputy Chief of Staff Services informed the
Applicant, "upon instruction by the Office of the Secretary-General", that
it was not the intention of the Organization to extend his fixed-term
appointment beyond its expiration date, i.e., 26 December 1983. On 29
November 1983 the Applicant protested against the decision in a letter to
the Assistant Secretary-General for Personnel Services, in which he referred
to his "acquired rights under the General Assembly resolution 37/126, IV,
paragraph 5"; that text, quoted in the letter, provides that the General
Assembly
"Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment."
On 2 December 1983 the Assistant Secretary-General for Programme Planning
and Co-ordination, in a letter addressed to the Assistant Secretary-General
for Personnel Services, stated, inter alia, that he found it "extraordinary
that such a decision should be taken without consulting the head of the
Office concerned". On 13 December 1983 the Applicant requested the
Secretary-General to review the decision not to extend his appointment
beyond its expiration date; he again expressly invoked his rights under
General Assembly resolution 37/126, IV, paragraph 5.
14. In a reply dated 21 December 1983, the Assistant Secretary-General for
Personnel Services stated:
"The Secretary-General has given careful consideration to the issues raised
in your request for administrative review dated 13 December 1983 ... as
well as in your earlier letter dated 29 November 1983, in connection with
the communication, dated 23 November 1983, that 'it is not the intention of
the Organization to extend your fixed-term appointment beyond its expiration
date, i.e., 26 December 1983'.
In your letters, after referring to your service record and the evaluations
of your supervisors, you state that under such conditions 'most staff
members would have an expectancy that their candidacy for a career
appointment would be "given every reasonable consideration", as General
Assembly resolution 37/126 IV requires'.
Your situation, however, is not similar to that of 'most staff members'
with comparable service records, because your present contract [24] was
concluded on the basis of a secondment from your national civil service. At
the time your present appointment was made your Government agreed to
release you for service under a one-year contract, the Organization agreed
so to limit the duration of your United Nations service, and you yourself
were aware of that arrangement which, therefore, cannot give you any
expectancy of renewal without the involvement of all the parties originally
concerned.
Furthermore, you are serving under a fixed-term appointment, which, as
expressly provided in staff rule 104.12(b)and reiterated in your letter of
appointment, 'does not carry any expectancy of renewal or of conversion to
any other type of appointment'.
In view of the foregoing, the reasons advanced by you in your memorandum of
13 December do not require the Secretary-General to alter the decision
communicated to you by letter of 23 November 1983. That decision is
maintained and, therefore, the Secretary-General is not in a position to
agree to your request 'that the Administrative decision be withdrawn and
[your] name forwarded to the appropriate Appointment and Promotion body for
reasonable consideration' for career appointment.
Should you wish to pursue your appeal, the Secretary-General is prepared to
agree to the direct submission of your case to the Administrative
Tribunal."
On 6 January 1984 the Applicant filed the application to the United Nations
Administrative Tribunal in respect of which Judgement No. 333 was given.
15. A development which occurred after the filing of the Application to the
United Nations Administrative Tribunal, and which was not referred to by
the Tribunal in its Judgement (though it was mentioned in the pleadings
before the Tribunal) was a further application by the Applicant for
employment by the United Nations. On 9 January 1984, according to the
Applicant's statement of views transmitted to the Court by the
Secretary-General, he forwarded a new P-ll Personal History Form to the
Division of Recruitment, Office of Personnel Services, "applying for a job
at the United Nations". Under Item 4 (National-ity(ies) at birth), he wrote
"USSR". Under Item 5 (Present nationali-ty(ies)), he wrote "USA, pending".
Under Item 16 (Have you taken up legal permanent residence status in any
country other than that of your nationality? If answer is "yes", which
country?), he wrote "Yes. USA". Under Item 17 (Have you taken any legal
steps towards changing your present nationality? If answer is "yes", explain
fully:), he wrote "I have applied for US citizenship. The bill No. S.1989 is
now before US Senate." The Applicant stated that he received no acknowledge
[p 25] ment of this application, and this has not been contradicted by the
Respondent.
16. The Applicant made this further application for United Nations
employment after Mr. J. Sills, a spokesman for the Secretary-General,
replying to a question at a press conference on 4 January 1984, had said
that
"If Mr. Yakimetz chose to apply for a position with the United Nations he
would be given every consideration along with other applicants for any
position, including his old position."
The New York Times of the same day carried an article on the non-renewal of
the Applicant's contract; in the article the Executive Assistant to the
Secretary-General, Mr. Emilio de Olivares, was quoted as follows:
"'We didn't extend it because we can't', Emilio de Olivares, a senior aide
to Mr. Perez de Cuellar, said of the Yakimetz contract.
Mr. Olivares said that by Soviet law, Mr. Yakimetz remains a Soviet citizen
. . . Moreover, like all Soviet employees of the Secretariat, he was
officially 'seconded' from his home Government. . .
To have the contract extended, Mr. Olivares said, Soviet consent was
essential. But, he said, 'the Soviets refused'."
Mr. Patricio Ruedas, Under-Secretary-General for Administration and
Management, wrote a letter to the New York Times, published on 25 January
1984, commenting on the above newspaper report. He mentioned other eminent
officials who had been seconded and United States legislation permitting
secondment, and concluded:
"The United Nations endeavors to obtain qualified staff from every one of
its member States. Direct employment as well as loans from governments have
been used, and continue to be used, as normal recruitment procedures. The
main difference between the two is that a person who is on loan returns to
his government unless that government agrees otherwise — a principle
applicable in all cases, and not only those involving the USSR."
17. The Applicant's principal contentions before the Tribunal were summed up
by the Tribunal as follows:
"1. No legal impediment existed at the time of the contested decision, or
exists now, to the continuation of the Applicant's service with the United
Nations: [p 26]
(a) the Applicant was not in any legally cognizable sense on secondment;
(b) after 10 February 1983, the Respondent had neither the obligation nor
the right to solicit or receive instructions as to the Applicant from any
authority extraneous to the Organization;
(c) no legal constraint existed, after 26 December 1983, on the Applicant's
further appointment to the United Nations;
2. The Applicant had a legally and morally justifiable expectancy of
continued United Nations employment, and a right to reasonable consideration
for a career appointment.
3. The Applicant was denied the reasonable consideration for further
employment to which he had a right."
18. The Tribunal then similarly summarized the principal contentions of the
Respondent as follows:
"1. The Applicant has no entitlement, including any legally cognizable
expectancy, as regards continued employment on expiry of his fixed-term
contract:
(a) the fixed-term contract excludes any expectancy;
(b) no circumstances outside the scope of the contract gave rise to legally
cognizable expectations:
(i) the circumstances relating to secondment could not have created an
expectancy. The separation from government service during period of United
Nations appointment did not result in new terms of contract with United
Nations;
(ii) the commendations by supervisors did not commit the Secretary-General
to extend the appointment. The pre-conditions to consideration of
reappointment by the Appointment and Promotion Board were not fulfilled;
(iii) General Assembly resolution 37/126, IV, paragraph 5, did not effect a
change in procedure on appointment.
2. The Secretary-General's decision against re-appointment was within his
sole authority under the Charter and Staff Regulations:
(a) in reaching his decision, the Secretary-General took into account all
the circumstances in the case;
(b) in taking his decision in the case, the Secretary-General acted in the
interest of the Organization."[p 27]
19. The Tribunal then stated that the legal issues involved in the case were
the following:
"(a) whether the Applicant's work with the United Nations in different
periods created a legal expectancy for further service with the United
Nations;
(b) whether, and if so to what extent, paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982 which reads
'Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment'
has been carried out;
(c) the consequences of the application of United Nations rules and
regulations in relation to the United States law on resident status and
citizenship."
20. The Judgement of the Administrative Tribunal will be examined in detail
later in the present Opinion (paragraphs 33 ff., below), the following brief
summary being sufficient for the present. On the first issue identified by
the Tribunal, it found, contrary to the contention of the Applicant, that
during his period of service with the United Nations the Applicant was under
secondment (Judgement, paras. III and XIII) and that there was no "evidence
of circumstances sufficient to establish that he had a legal expectancy of
any type of further appointment following the end of his fixed-term
appointment" (para. VI). The Tribunal rejected the argument of the Applicant
that the Secretary-General, by his actions in relation to the Applicant
after 10 February 1983 when he resigned from the service of the USSR
Government, created a new, although tacit, agreement in which the Soviet
Government was not in any way involved (para. VIII). As to the question
whether the terms of General Assembly resolution 37/126 had been carried
out, the Tribunal found that the Secretary-General was bound by it, but that
the resolution was silent on who should give "every reasonable
consideration" and by what procedure. The Tribunal considered the letter
addressed to the Applicant on 21 December 1983 (quoted in paragraph 14
above), and drew from it "the plain and simple inference... that the
Respondent had given the required (i.e., 'every reasonable') consideration
for a career appointment for the Applicant" (para. XVI). It found that the
procedure of offering a probationary appointment to a candidate was at the
time applicable, that the Secretary-General had the sole authority to decide
what constituted "reasonable consideration" and whether the Applicant could
be given such an appointment. The Tribunal concluded: [p 28]
"He apparently decided, in the background of secondment of the Applicant
during the period of one year from 27 December 1982 to 26 December 1983,
that the Applicant could not be given a probationary appointment. He thus
exercised his discretion properly, but he should have stated explicitly
before 26 December 1983 that he had given 'every reasonable consideration'
to the Applicant's career appointment." (Para. XVIII.)
The Tribunal went on to reject the suggestion that the Secretary-General had
sought instructions from any member State or had in any manner let the
wishes of a member State prevail over the interests of the United Nations,
contrary to Article 100, paragraph 1, of the Charter. The Tribunal's
treatment of the third legal issue it identified (para, (c) quoted in
paragraph 19 above) will be examined later in this Opinion (paragraphs 83
and 84).
21. The Tribunal, while thus rejecting the application made to it, expressed
"its dissatisfaction with the failure of the Respondent to record
sufficiently early and in specific terms the fact that he had given the
question of the Applicant's career appointment 'every reasonable
consideration' as enjoined by the General Assembly resolution" (para. XX),
but considered that this had not caused any discernible injury to the
Applicant. To the Judgement was appended a statement by the President of
the Tribunal, Mr. Endre Ustor, recording his disagreement with this
statement of disapproval and stating his view that the doctrine of the
Tribunal on secondment "precludes not only the extension of a seconded
fixed-term appointment but also its conversion to any other type of
appointment without the consent of the Government concerned". Also
appended was a dissenting opinion by a Vice-President of the Tribunal, Mr.
Arnold Kean, expressing the view that
"the Repondent's decision was flawed by fundamental mistakes of fact or law
and requires to be set aside, and that the Tribunal should accept the
Applicant's plea that he was illegally denied his right to reasonable
consideration for a career appointment".
This conclusion was based on, inter alia, the view that the writer of the
letter of 21 December 1983 mistakenly believed that, if the Applicant had no
expectancy of renewal of his fixed-term appointment, there was no
possibility of his receiving a career appointment in pursuance of Gen-eral
Assembly resolution 37/126 (para. 7 of Mr. Kean's opinion).
**[p 29]
22. On 21 June 1984, the Applicant presented an application for review of
the Judgement to the Committee on Applications for Review of Administrative
Tribunal Judgements, in which he requested the Committee to request an
advisory opinion of the Court on all four of the grounds set out in Article
11 of the Tribunal's Statute (that the Tribunal has exceeded its
jurisdiction or competence, that it has failed to exercise jurisdiction
vested in it, that it has erred on a question of law relating to the
provisions of the Charter of the United Nations, or that it has committed a
fundamental error in procedure which has occasioned a failure of justice).
On 10 August 1984, the Secretary-General presented his comments on that
Application. At a public meeting held on 28 August 1984 the Committee
announced its decisions: it decided that there was not a substantial basis
for the application on two of the grounds advanced (that the Tribunal had
exceeded its jurisdiction, or that the Tribunal had committed a fundamental
error in procedure which had occasioned a failure of justice); in respect of
the other two grounds, it held that there was a substantial basis for the
application and decided to submit two questions to the Court for advisory
opinion. It then announced the text of those questions, as reproduced in
paragraph 1 above. The results of and the participation in the votes taken
during the private deliberations of the Committee were then formally
announced, and five members of the Committee made statements for the record
(A/AC.86/XXIV/PV.5).
**
23. The competence of the Court to give an advisory opinion at the request
of the Committee on Applications for Review of Administrative Tribunal
Judgements (hereinafter called "the Committee") derives immediately from
Article 11, paragraphs 1 and 2, of the Statute of the United Nations
Administrative Tribunal, which provides as follows:
"1. If a Member State, the Secretary-General or the person in respect of
whom a judgement has been rendered by the Tribunal (including any one who
has succeeded to that person's rights on his death) objects to the judgement
on the ground that the Tribunal has exceeded its jurisdiction or competence
or that the Tribunal has failed to exercise jurisdiction vested in it, or
has erred on a question of law relating to the provisions of the Charter of
the United Nations, or has committed a fundamental error in procedure which
has occasioned a failure of justice, such Member State, the
Secretary-General or the person concerned may, within thirty days from the
date of the judgement, make a written application to the Committee
established by paragraph 4 of this article asking the Committee to request
an advisory opinion of the International Court of Justice on the matter.
2. Within thirty days from the receipt of an application under paragraph 1
of this article, the Committee shall decide whether or not there is a
substantial basis for the application. If the Committee [p 30]decides that
such a basis exists, it shall request an advisory opinion of the Court, and
the Secretary-General shall arrange to transmit to the Court the views of
the person referred to in paragraph 1."
The fundamental text in this respect is however Article 96 of the United
Nations Charter:
"1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their
activities."
Similarly, Article 65, paragraph 1, of the Statute of the Court provides
that
"The Court may give an advisory opinion on any legal question at the request
of whatever body may be authorized by or in accordance with the Charter of
the United Nations to make such a request."
24. In two previous advisory opinions (Application for Review of Judgement
No. 158 of the United Nations Administrative Tribunal, I.C.J. Reports 1973,
p. 166; Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, I.C.J. Reports 1982, p. 325), the Court has
examined the question of its competence under these provisions. In one of
these cases the request for opinion originated, as in the present case, from
an application by a staff member; in the other the request originated from
an application to the Committee by a member State. In the first of those
cases, the Court concluded that
"the Committee on Applications for Review of Administrative Tribunal
Judgements is an organ of the United Nations, duly constituted under
Articles 7 and 22 of the Charter, and duly authorized under Article 96,
paragraph 2, of the Charter to request advisory opinions of the Court for
the purpose of Article 11 of the Statute of the United Nations
Administrative Tribunal. It follows that the Court is competent under
Article 65 of its Statute to entertain a request for an advisory opinion
from the Committee made within the scope of Article 11 of the Statute of the
Administrative Tribunal." (Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 175,
para. 23.)
That conclusion presupposes that in any specific case the conditions laid
down by the Charter, the Statute, and the Statute of the Administrative
Tribunal are complied with, and in particular that a question on which the
opinion of the Court is requested is a "legal question" and one "arising [p
31] within the scope of [the] activities" of the requesting organ. The
question whether a judicial body failed to exercise jurisdiction is clearly
a legal question, as is also the question whether it erred on a question of
law. Furthermore, the questions put to the Court by the Committee in the
present case
"clearly arise out of the performance of [its] primary function of screening
the applications presented to it. They are therefore questions which, in
the view of the Court, arise within the scope of the Committee's own
activities; for they arise not out of the judgements of the Administrative
Tribunal but out of objections to those judgements raised before the
Committee itself." (Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 174, para.
21.)
*
25. It is of course well established that
"Article 65, paragraph 1, of the Statute, which establishes the power of the
Court to give an advisory opinion, is permissive and, under it, that power
is of a discretionary character." (I.C.J. Reports 1975, p. 21, para. 23.)
It is equally well established that the reply of the Court to a request for
opinion represents its participation in the activities of the United Nations
and, in principle, should not be refused. When considering the proper
exercise of its discretion in this respect, it is however essential for the
Court to focus its attention on the question or questions to which it is
asked to reply, rather than on such related or ancillary questions as may
have arisen in connection with the problem put to the Court. In the present
case the Government of the United States has advanced the view that
"it is... important for the Court to clarify the meaning and nature of
secondment in the light of its increasing use in staffing international
organizations generally and the United Nations in particular, even though
this case does not turn on the question of whether the Applicant was in
fact seconded to the United Nations during his second continuous period of
service there from 27 December 1977 to 26 December 1983".
Similarly the Government of Italy has drawn attention to the uncertainty
created by Judgement No. 333 as to the position of staff members on
secondment and to the consideration which weighed with the Court to give
its opinion in a previous review case, namely the "stability and efficiency
of international organizations" (I.C.J. Reports 1982, p. 347, para. 45). The
request addressed to the Court is however not for an opinion on the "meaning
and nature of secondment", so that it is only if, or to the extent [p 32]
that, it proved necessary for the Court to determine the meaning and nature
of secondment in order to be able to reply to the one or the other of the
two specific questions put to it that such an examination would properly
form part of its advisory opinion.
26. However, leaving aside for this reason the asserted desirability of an
authoritative legal opinion on the nature of secondment, the Court considers
that there is clear legal justification for replying to the two questions
put to it by the Committee. When a request was first made to the Court for
an advisory opinion pursuant to Article 11 of the Statute of the
Administrative Tribunal, the Court subjected the machinery established by
that Article to critical examination, in order to satisfy itself that it
would be right to give an opinion in such a case. Inspired by its own
previous approach to the question of reviewing in an advisory opinion a
decision of the ILO Administrative Tribunal, it was reluctant to "imperil
the working of the regime established by the Statute of the Administrative
Tribunal for the judicial protection of officials" and concluded that
"although the Court does not consider the review procedure provided by
Article 11 as free from difficulty, it has no doubt that, in the
circumstances of the present case, it should comply with the request by the
Committee on Applications for Review of Administrative Tribunal Judgements
for an advisory opinion" (Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 183, para.
40).
This conclusion is qualified by a reservation as to the merits of the
procedure established by Article 11 of the Tribunal's Statute. In its 1973
Advisory Opinion the Court examined a number of criticisms addressed to
this procedure, and in particular the fact that "being composed of member
States, the Committee is a political organ", yet discharged "functions
which, in the Court's view, are normally discharged by a legal body" (I.C.J.
Reports 1973, p. 176, para. 25). Ultimately the Court however considered
that it should give an advisory opinion at the request of the Committee
established under Article 11: it noted that
"A refusal by the Court to play its role in the system of judicial review
set up by the General Assembly would only have the consequence that this
system would not operate precisely in those cases in which the Committee has
found that there is a substantial basis for the objections which have been
raised against a judgement." (Ibid., p. 177, para. 28.)
Similarly in the present case it is clear from the request made by the
Committee, from the written statements submitted to the Court by the
Government of Italy and the Government of the United States of America, and
from the statement of views of the Applicant transmitted to the Court, that
[p 33] objections have been raised against Judgement No. 333, and that their
examination is appropriate to secure "the judicial protection of officials"
of the United Nations. Accordingly, while renewing reservations made in
previous cases as to the procedure established by Article 11, the Court
concludes that it should give an advisory opinion in the present case.
**
27. The two provisions of Article 11 of the Statute, specifying grounds of
objection in respect of which in this case the Committee found that there
was a substantial basis for the application for review, have been
considered by the Court before, in two previous advisory opinions, in 1973
and 1982, on cases referred to it by the Committee. In those opinions the
Court established a principle as to the scope of its action in response to
such requests, and a limited exception to the principle in the case of one
of the two grounds considered. In the case of the Application for Review of
Judgement No. 158 of the United Nations Administrative Tribunal, the Court
established the principle that the role of the Court in review proceedings
is not to retry the case, but added that this
"does not mean that in an appropriate case, where the judgement has been
challenged on the ground of an error on a question of law relating to the
provisions of the Charter, the Court may not be called upon to review the
actual substance of the decision" (I.C.J. Reports 1973, p. 188, para. 48).
The Court in 1982, in its opinion on the Application for Review of
Judgement No. 273 of the United Nations Administrative Tribunal, quoted
this passage, and went on to examine carefully the question of its proper
role when asked for an advisory opinion in respect of the ground of
objection concerning error on a question of law relating to provisions of
the Charter. It observed that the answer to that question must depend "not
only upon the terms of Article 11, but also upon several other factors
including, first of all, the Court's Statute, the case-law of the Court, the
general requirements for the exercise of the judicial function", as well as
upon the exact terms of the particular question asked of the Court by the
Committee (I.C.J. Reports 1982, p. 355, para. 57). It re-emphasized that
"the Court's proper role is not to retry the case and to attempt to
substitute its own opinion on the merits for that of the Tribunal" (ibid.,
p. 356, para. 58). That principle must continue to guide the Court in the
present case. It will therefore not necessarily have to deal with the
problems raised by certain administrative steps taken, or which should have
been taken, by the Secretariat, and which have been the subject of
criticism, at the same time as the Tribunal's Judgement No. 333. Taking into
account the limits of its competence set by the applicable texts, the Court
should not express any view on the correctness or otherwise of any finding
of the Tribunal in [p 34] Judgement No. 333, unless it is necessary to do so
in order to reply to the questions put to it.
**
28. The Court now turns to the first of the two questions submitted to it by
the Committee, namely:
"In its Judgement No. 333 of 8 June 1984 (AT/DEC/333) did the United Nations
Administrative Tribunal fail to exercise jurisdiction vested in it by not
responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 1983 ?"
With regard to the wording of this question, the Court should first observe
that there is, or at least there appears to be, a discrepancy between the
English version, which refers to a "legal impediment ... to the further
employment in the United Nations" and the French version, which refers to an
"obstacle juridique au renouvellement de l'engagement du requérant à
l'Organisation des Nations Unies". The French text seems to refer only to
the narrow hypothesis of a mere extension or renewal of the contract held by
the Applicant up to 26 December 1983. However, according to the Report of
the Committee (A/AC.86/30, para. 13), the decision of the Committee was
based on a proposal, in English, made by the representative of the United
Kingdom (A/ AC.86/R. 120), which used the expression "legal impediment... to
the further employment". Accordingly, the words in the French version
"obstacle juridique au renouvellement de l'engage-ment" must be taken to
have been a translation of this expression, and therefore to refer to a
legal impediment to a "further appointment" or "reappointment" of the
Applicant to the Organization, including both the case of a prolongation of
an existing contract, and that of an appointment distinct from the
pre-existing contractual relationship.
29. The question whether a "legal impediment" existed to the further
employment of the Applicant was raised from the outset when the Applicant,
in his application to the Administrative Tribunal, requested it "To adjudge
and declare that no legal impediment existed to his further United Nations
employment after the expiry of his contract on December 26,1983". While
contending that "no legally valid secondment took place", or that after 10
February 1983 there was a "new contractual arrangement", he conceded that
"Having resigned from all positions he might have held in the USSR
Government, he was clearly not eligible for an extension of secondment, nor
would he have consented to one". On the other hand, he contended that "There
was no legal bar, however, to his eligibility for a new fixed-term contract,
or a probationary appointment", and that he "had a legally and morally
justifiable expectancy of continued [p 35] U.N. employment, and a right to
reasonable consideration for a career appointment".
30. In his Answer, the Respondent stated in response to the plea concerning
the question of a "legal impediment":
"With respect to plea C, Respondent does not dispute that it was within the
Secretary-General's authority and discretion to re-appoint the Applicant
after the expiry of his contract." (Para. 27 (c).)
In the circumstances obtaining at the time of the letter of 21 December
1983, "further appointment on the basis of secondment was obviously out of
the question", but at the same time "In those circumstances, there was no
contractual or otherwise legally based prohibition on the
Secretary-General, either to grant or withhold another appointment". Before
the Tribunal therefore, the Secretary-General committed himself to the view
that there was no "legal impediment" to the grant of a career appointment;
and asserted that "The decision now contested was taken by the
Secretary-General after consideration of all the circumstances in the case
..." and that this constituted "reasonable consideration" within the meaning
of General Assembly resolution 37/126. In his formal "Observations on
Applicant's Pleas and Conclusions", the Secretary-General asserted
"With respect of plea E, Respondent requests the Tribunal to conclude that
Applicant had no 'right' to favourable consideration for a career
appointment and did, in fact, receive such consideration as was reasonable."
31. In his "Observations on the Answer of the Respondent", the Applicant
did not refer at all to the recognition by the Secretary-General, in
paragraph 27 (c) of his Answer, quoted above, that there was no "legal
impediment" to a re-appointment; he merely took issue with the assertion
that "reasonable consideration" was given, submitting that "The
Secretary-General, due to a misapprehension of the Applicant's contractual
status, cannot have given every reasonable consideration to his
candidature". Quoting the letter of 21 December 1983, the remarks of the
spokesman for the Secretary-General, Mr. Sills, at the press briefing of 4
January 1984, the reported remarks of Mr. de Olivares on the same date, and
the letter from Mr. Ruedas published in the New York Times on 25 January
1984 (see paragraph 16 above), the Applicant concluded:
"If he was under the impression, as [the statements quoted] indicate, that
any extension of the Applicant's appointment without gov-[p 36]ernment
consent was beyond the scope of his discretionary powers, the
Secretary-General cannot have given every reasonable consideration to a
career appointment, in violation of the Applicant's rights.
If he was not under such impression, then the reasons given by the officials
quoted above were specious."
In other words, the Applicant invited the Tribunal to find that the analysis
of the legal position expressed in paragraph 27 (c) of the
Secretary-General's Answer was not the view he, or his responsible
officials, had held at the time that the "reasonable consideration" was
supposed to have been given; and that the view which actually was held at
that time, that the secondment did give rise to a "legal impediment" to any
further employment, was incorrect, and was such that no "consideration" on
that basis could be "reasonable" within the meaning of resolution 37/126.
*
32. A preliminary point arises from the wording of the first question put to
the Court by the Committee, whereby the Court is asked specifically whether
the Administrative Tribunal failed to exercise jurisdiction "by not
responding to the question whether a legal impediment existed" to the
Applicant's further employment. It has been suggested that the Committee
intended the Court to take as established that the Tribunal did in fact not
respond to that question, and to give its opinion solely on the legal
question whether the Tribunal thus failed to exercise jurisdiction. This
problem is one of interpretation, in the sense that it is appropriate to
ascertain what the Committee intended to ask of the Court; but it is also
one relating to the respective competences of the Committee and of the
Court. In the view of the Court, it is in fact the latter consideration
which prevails. Such a restrictive interpretation of the Committee's
question as suggested above seems prima facie unlikely, and "It is not to be
assumed" that the body requesting an opinion of the Court "would thus seek
to fetter or hamper the Court in the discharge of its judicial functions"
(Certain Expenses of the United Nations, I.C.J. Reports 1962, p. 157). Even
if such had been the intention of the Committee, however, in the view of the
Court it would nevertheless be bound to examine the question in all its
aspects: "the Court must have full liberty to consider all relevant data
available to it in forming an opinion on a question posed to it for an
advisory opinion" (ibid.). The Court cannot therefore simply assume that
the Tribunal did in fact fail to respond to the question of the alleged
legal impediment, and consider solely whether by not doing so it failed to
exercise jurisdiction.
33. The Tribunal's handling of this question is not entirely clear. The [p
37] Court however considers that this was because it was obliged to deal
first with other contentions set out in the application made to it by the
Applicant. The argument in that application is set out under the three main
headings which the Tribunal listed at the beginning of its Judgement (see
paragraph 17 above). One of these, mentioned second by the Applicant, was
that he "had a legally and morally justifiable expectancy of continued
United Nations employment, and a right to reasonable consideration for a
career appointment". The Tribunal disregarded the question of moral
justifiability and concentrated on the idea of legal justifiability of the
expectancy. As a matter of logic, it was appropriate to deal first with this
question of a "legal expectancy", since if the Applicant could show that he
possessed such an expectancy, then in the words of the Tribunal in an
earlier case "such legal expectancy created a corresponding obligation on
the part of the Respondent to provide continuing employment to the Applicant
within [the Organization]" (Judgement No. 142, Bhatta-charyya, para. X).
34. It was in the context of its examination of the claim to a "legal
expectancy" that the Tribunal found, contrary to the Applicant's first
contention, that "during the period of his service with the United Nations
the Applicant was under secondment" (para. XIII) and that the Respondent
had concluded — correctly, in the view of the Tribunal — in the letter of 21
December 1983 that "since the involvement of all parties concerned was
necessary for the renewal of the Applicant's appointment, such renewal was
impossible in the circumstances" (para. IV). The Tribunal noted that the
Respondent relied on the provision in Staff Rule 104.12 (b) that "The
fixed-term appointment does not carry any expectancy of renewal or of
conversion to any other type of appointment", and found that "it does not
appear that the Applicant has produced evidence of circumstances sufficient
to establish that he had a legal expectancy of any type of further
appointment following the end of his fixed-term appointment" (para. VI). The
Tribunal found further that "In so far as [the Applicant] was on secondment
from the USSR Government, none of the actions he took could bring about any
legal expectancy of renewal of his appointment" (para. XII), the actions of
the Applicant referred to being his resignation from the USSR posts, and
his application for asylum in the United States. In what was clearly an
allusion to the Bhattacharyya case, the Tribunal added:
"If his fixed-term appointment were not based on secondment he could, in the
jurisprudence of the Tribunal, have in certain circumstances expectation of
one kind or another for an extension, but such a situation did not arise."
(Para. XII.)
Before setting out its conclusion on the question of "legal expectancy", the
Tribunal included a passage in its reasoning referring to the effect of a
change of nationality effected by a staff-member, and quoting from an [p
38] other of the Tribunal's Judgements (No. 326, Fischman). The Court will
have occasion to consider this part of the Judgement later, in the context
of the second of the two questions put to it.
35. It should be noted that it was only in the context of the Tribunal's
examination of the question of the claim to a legal expectancy that it
quoted (in para. V) the provision in Staff Rule 104.12 2(b) set out above.
The Court therefore does not consider that by doing so the Tribunal intended
to suggest that this rule would prevent the "reasonable consideration"
required by General Assembly resolution 37/126 from leading to the grant of,
or "conversion to" a career appointment in the circumstances contemplated by
that resolution. Resolution 37/126, part IV, paragraph 5, of which was
intended specifically to be applied to staff members on fixed-term
contracts, had to be interpreted together with Staff Rule 104.12 (b) since
the latter remained in force. The resolution could not of course confer any
expectancy, legal or otherwise, "of renewal or of conversion to any other
type of appointment" as long as Rule 104.12 (b) stood; therefore "reasonable
consideration" could not imply an expectancy involving any obligation on
the part of the Secretary-General to appoint the Applicant. But on the other
hand the existence of the Staff Rule obviously was no bar to the giving of
"reasonable consideration" for a career appointment.
36. The Tribunal concluded "that during the period of his service with the
United Nations the Applicant was under secondment", and that the consent of
his national Government was required to modify that situation. With its
conclusions on these points "in mind", the Tribunal turned to "the
Applicant's plea that he was entitled to, but was denied, the right to
receive 'every reasonable consideration' in terms of paragraph 5 of General
Assembly resolution 37/126, IV" (para. XIV). After noting that the
Secretary-General was bound by the terms of that resolution, and that "the
Tribunal has to decide how and to what extent he carried out his obligations
under it", the Tribunal continued:
"The Respondent's letter dated 21 December 1983, addressed to the Applicant
in reply to his counsel's letter of 13 December 1983, states that he has
'given careful consideration to the issues raised in your request for
administrative review', and since these issues are particularly related to
the provision of the General Assembly resolution in question, the plain and
simple inference is that the Respondent had given the required (i.e.,
'every reasonable') consideration for a career appointment for the
Applicant." (Para. XVI.)
[p 39]
37. The Tribunal then dealt with the issue of whether or not the
appropriate form for such consideration was reference of the matter to the
Appointment and Promotion Board; this part of the Judgement will be examined
in greater detail in the context of the second question put to the Court
(paragraphs 67 ff. below). After noting that resolution 37/126 "is silent on
who should give 'every reasonable consideration' and by what procedure", it
concluded that
"the existing procedure of offering a probationary appointment to a
candidate remains applicable, and that in the absence of such an appointment
it is left to the Respondent to decide how 'every reasonable consideration'
for a career appointment should be given to a staff member under General
Assembly resolution 37/126, IV, paragraph 5" (para. XVIII).
Its conclusion on the question of "reasonable consideration" is as follows:
"In the present case, the Respondent had the sole authority to decide what
constituted 'reasonable consideration' and whether the Applicant could be
given a probationary appointment. He apparently decided, in the background
of secondment of the Applicant during the period of one year from 27
December 1982 to 26 December 1983, that the Applicant could not be given a
probationary appointment. He thus exercised his discretion properly, but he
should have stated explicitly before 26 December 1983 that he had given
'every reasonable consideration' to the Applicant's career appointment."
(Para. XVIII.)
38. It will thus be apparent from this analysis of the Judgement why the
Tribunal did not deal first of all with the first of the Applicant's
contentions, namely the absence of any "legal impediment". It did not take
the view either that there was or that there was not an absolute impediment,
barring further employment; rather, it found there could be no legal
expectancy (i.e., that there was in this respect a "legal impediment"), but
there was no such impediment to "reasonable consideration" being given to
the grant of a career appointment. To put the matter another way, there was,
in the view of the Tribunal, no "legal impediment" to the grant of a career
appointment if the Secretary-General in the exercise of his discretion saw
fit to offer one, and the Secretary-General was bound by resolution 37/126
to give "every reasonable consideration" to the possibility. The Tribunal
considered that the fact of secondment excluded (and did as it were
constitute a legal impediment to) a "legal expectancy" of the Applicant's
further employment, which would have entailed an obligation on the
Secretary-General, not merely to give "every reasonable [p 40]
consideration" but actually to "provide continuing employment", on the basis
of the Bhattacharyya precedent.
39. Much of the criticism (e.g., in the written statement of Italy, and the
comments of the United States) addressed to the Judgement of the Tribunal
is in fact based, explicitly or implicitly, on the idea that the existence
or otherwise of a "legal impediment" to further employment — any further
employment — of the Applicant by the United Nations constituted in some
sense a preliminary question which the Tribunal was obliged, as a matter of
procedure or as a matter of logic, to answer before going on to other
questions. This however would only be so if the legal impediment, if it
existed at all, would be absolute: i.e., if the choice was between holding
that there was no legal impediment at all, or that there was such an
impediment and that it excluded a staff member from all further United
Nations employment. On the view of the matter which emerges from the
Tribunal's Judgement, however, it was clearly more logical to deal with the
question of legal impediment as an aspect of each of the two questions of
"legal expectancy" and "reasonable consideration".
40. The "dissatisfaction" expressed by the Tribunal (para. XX) at the
Secretary-General's "failure to record sufficiently early and in specific
terms the fact that he had given the question of the Applicant's career
appointment 'every reasonable consideration' as enjoined by the General
Assembly resolution" is also significant, since it throws light on the
Tribunal's interpretation of the letter of 21 December 1983 (set out in
paragraph 14 above). The Applicant argues that in the mind of the writer of
that letter, "he was ineligible for 'every reasonable consideration' without
an expectancy of renewal" and that the letter indicates that the writer
"believed a secondment contract bestows a right on a government to veto
further employment under any other form of contract and thus taint the
seconded employee in perpetuity". This was however not the way in which the
Tribunal interpreted that letter. While it considered that the
Secretary-General had exercised his discretion properly, it found that "he
should have stated explicitly before 26 December 1983 that he had given
'every reasonable consideration', to the Applicant's career appointment"
(para. XVIII). If the Tribunal had read the letter of 21 December 1983 as
signifying that, in the view of the Secretary-General, the Applicant was
ineligible for "every reasonable consideration", it could hardly have
criticized the Secretary-General for failing to say that he had given such
consideration.
41. This criticism expressed by the Tribunal cannot however have any further
impact on the Court's opinion regarding the answer to the ques-[p 41]tion
put to it. The Tribunal, of course, also interpreted the letter to mean that
the Respondent "apparently decided, in the background of secondment of the
Applicant during the period of one year from 27 December 1982 to 26
December 1983, that the Applicant could not be given a probationary
appointment" (para. XVIII). But for the purposes of this Advisory Opinion,
it is of little importance what were the reasons underlying the
Respondent's decision since the Tribunal was satisfied that the Respondent
had given every reasonable consideration to the Applicant's case. The
Tribunal held that the Secretary-General did not fail to apply the
resolution, but was only blameworthy for failing to inform the Applicant at
the proper time of exactly what he had done.
42. The first question put to the Court in the present proceedings is
whether the Tribunal failed to exercise jurisdiction "by not responding to
the question whether a legal impediment existed to the further employment
in the United Nations of the Applicant". However, this was not the real
complaint of the Applicant against the Tribunal: the objection of the
Applicant was that, in examining the question of "reasonable consideration"
it paid no, or insufficient, attention to the indications that the
Secretary-General had thought that there was a legal impediment to any
further employment, so that his "reasonable consideration" either never took
place or was vitiated by a basic assumption later conceded to be incorrect.
Thus in his application to the Committee, the Applicant explained:
"The Applicant therefore requested the Tribunal to determine whether any
legal impediment existed to his further United Nations employment after the
expiry of his contract on 26 December 1983. In other words, did the
Respondent err in his belief that having once served under a contract
labelled 'secondment', the Applicant was thereby permanently disabled from
further United Nations service under any other form of contract or
appointment. It was well within the Tribunal's jurisdiction to make such a
determination.
The Majority Judgement of the Tribunal completely omits this threshold
question from the legal issues to which it addresses itself." (Emphasis
added.)
The expression "In other words" is used to imply that one and the same
question is being stated in two different forms; but it appears to the Court
that there are here two related but separate questions. The first question
is whether the Tribunal failed to deal with the legal question of the
existence or otherwise of a legal impediment to further employment, and it
is this which is alleged to be a failure to exercise jurisdiction. The
second question is whether the Tribunal failed to enquire into the belief
of the Secre-[p 42]tary-General as to the existence of a legal impediment,
and the possible impact of that belief on his ability to give "every
reasonable consideration" to a career appointment.
43. The Court would recall that in appropriate cases it is entitled to look
behind the strict terms of the question as presented to it. In its Advisory
Opinion concerning the Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, the Court, following the line of its earlier
jurisprudence, observed that
"if it is to remain faithful to the requirements of its judicial character
in the exercise of its advisory jurisdiction, it must ascertain what are the
legal questions really in issue in questions formulated in a request"
(I.C.J. Reports 1980, p. 88, para. 35).
The Court in that case, as to some extent also in other cases, found it
necessary to reformulate the question submitted for advisory opinion in
order to deal with "the questions really in issue". As the Court made clear
in a later case, such reformulation must remain within the limits on the
powers of the requesting body: the Court cannot, by reformulating the
question put, respond to a question which that body could not have
submitted, for example because it was not a legal question "arising within
the scope of the activities" of the requesting body. In the case concerning
the Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, where the Court had occasion to reformulate the
question put by the Committee, it observed that its jurisdiction under
Article 11 of the Tribunal's Statute is limited to the four specific grounds
of objection there specified and recalled its previous dictum that
"Consequently, the Committee is authorized to request, and the Court to
give, an advisory opinion only on legal questions which may properly be
considered as falling within the terms of one or more of those four
'grounds'." (Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, I.C.J. Reports 1973, p. 184, para. 41.)
44. In considering what questions are "really in issue", the Court must of
course have regard also to the intentions of the requesting body as they
emerge from such records as may be available of the discussions leading up
to the decision to request an opinion. This was the course which the Court
followed in 1980 in its Advisory Opinion on the Interpretation of the
Agreement of 25 March 1951 between the WHO and Egypt (I.C.J. Reports 1980,
pp. 85 to 88, paras. 28 to 34), in order to define "the true [p 43] legal
question submitted to the Court" (ibid., p. 89, para. 36). In the present
case, as noted above (paragraph 22), application was made to the Committee
on all four of the grounds set out in Article 11 of the Statute of the
Tribunal; and the Committee took a formal decision on each of those grounds
as a separate question. It decided that there was no substantial basis for
the Application on the ground either that the Tribunal had exceeded its
jurisdiction, or that it had committed a fundamental error in procedure
which had occasioned a failure of justice (A/AC.86/XXIV/ PV.5, pp. 2-3). The
Court accordingly concludes that it is not open to it to enter into these
grounds, by reformulating the question put to it or otherwise, because it
cannot be said that it was the intention or wish of the Committee to have an
opinion of the Court on these points.
45. On the other hand, it was the intention of the Committee to have the
opinion of the Court on the question whether the Administrative Tribunal
failed to exercise jurisdiction vested in it, one of the four grounds of
objection contemplated by Article 11 of the Tribunal's Statute. Without
going beyond the limits of this ground, it is open to the Court to redefine
the point on which it is asserted that the Tribunal failed to exercise its
jurisdiction, if this will enable it to give guidance on "the legal
questions really in issue". It thus seems to the Court essential to examine
whether the Tribunal addressed its mind to both the questions defined at
the end of the paragraph 42 of this Opinion.
46. It is appropriate at this point to examine more closely what is meant by
the expression "failed to exercise jurisdiction vested in it". The Court has
already given its attention to this point in its advisory opinion on the
Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal (I.C.J. Reports 1973, p. 166). In that opinion the
Court defined its role as follows:
"In the Court's view, therefore, this ground of challenge covers situations
where the Tribunal has either consciously or inadvertently omitted to
exercise jurisdictional powers vested in it and relevant for its decision
of the case or of a particular material issue in the case." (Loc. cit., p.
189, para. 51.)
It also observed that:
"Clearly, in appreciating whether or not the Tribunal has failed to exercise
relevant jurisdictional powers, the Court must have regard to the substance
of the matter and not merely to the form. Consequently, the mere fact that
the Tribunal has purported to exercise its powers with respect to any
particular material issue will not be enough: it must in fact have applied
them to the determination of the issue." (Loc. cit., pp. 189-190, para. 51.)
It was however more important for the Court in that case to ascertain [p 44]
whether the particular plea had to be mentioned expressly, or whether it was
sufficient that it had been effectively dealt with, in the course of
disposal of another argument or otherwise. The Court said:
"It can hardly be denied... that in this particular case the structure
adopted [by the Tribunal's Judgement] created the difficulty that some of
the applicant's pleas, though covered by the general consideration of the
basic questions of non-observance of regulations, of rescission and of
damage, were not expressly mentioned or specifically dealt with in the
paragraphs in which the Tribunal developed its reasoning and analysed what
it deemed to be the pertinent issues.
To find that such a difficulty has arisen in the present case does not
signify that, as contended by the applicant, there has been on the part of
the Tribunal a failure to exercise its jurisdiction with respect to those
pleas which were not expressly mentioned nor specifically dealt with in the
substantive part of the Judgement. The test of whether there has been a
failure to exercise jurisdiction with respect to a certain submission cannot
be the purely formal one of verifying if a particular plea is mentioned eo
nomine in the substantive part of a judgment: the test must be the real one
of whether the Tribunal addressed its mind to the matters on which a plea
was based, and drew its own conclusions therefrom as to the obligations
violated by the respondent and as to the compensation to be awarded
therefor. Such an approach is particularly requisite in a case such as the
present one, in which the Tribunal was confronted with a series of claims
for compensation or measures of relief which to a considerable extent
duplicated or at least substantially overlapped each other and which derived
from the same act of the respondent:.. ." (I.C.J. Reports 1973, p. 193,
paras. 55-56.)
47. Similarly in the present case, the Judgement of the Tribunal does not
state specifically that it was the view of the Tribunal that, while a
fixed-term appointment on secondment cannot be renewed or extended without
the consent of the seconding Government, there is no automatic bar to the
holder of such appointment being given a career appointment on its
expiration. Nor does the Tribunal ever specifically reject or uphold the
contention that the Secretary-General, because he was convinced that there
was such a bar, could not have given "every reasonable consideration" to the
Applicant's application for appointment. If however it can be established
with sufficient certainty that "the Tribunal addressed its mind" to the
matters on which these contentions were based, "and drew its own conclusions
therefrom", then, whatever view be taken of the conclusion reached by the
Tribunal on the evidence available, there was no failure to exercise
jurisdiction in that respect. [p 45]
48. Clearly the first step to be taken in order to establish whether the
Tribunal addressed its mind to a particular point is to examine the text of
its Judgement; but it may also be appropriate to consult separate or
dissenting opinions appended to it. So far as the Judgement itself is
con-cerned, the Court has already indicated why, in its view, the Judgement
did not take up specifically, and as a preliminary point, the question of
the existence of a "legal impediment" (paragraphs 36 and 37 above); the
Court does not consider that this signifies that the Tribunal failed to
address its mind to that question. Attention should however also be drawn to
the pas-sage from paragraph XVIII of the Judgement quoted in paragraph 36
above, in which the Tribunal referred to the Respondent's "sole authority to
decide what constituted 'reasonable consideration' and whether the Applicant
could be given a probationary appointment", and to the Respondent's proper
exercise of his "discretion". A discretion certainly does not authorize, as
the Tribunal rightly emphasized in its Judgement No. 54 (Mauch), an
"arbitrary or capricious exercise of the power..., nor the assignment of
specious or untruthful reasons for the action taken, such as would connote a
lack of good faith or due consideration for the rights of the staff member
involved". The fact remains, however, that in the view of the Tribunal, the
Secretary-General was not obliged by binding rules to take a particular
action and to take it in a particular way: in other words, the
Secretary-General could take the decision to offer the Applicant a career
appointment, but was not bound to do so. It follows from this that the
Tribunal was clearly deciding, though by implication, that there was no
absolute legal impediment, in the sense of an impediment to any further
employment, which the Applicant thought had inspired the decision not to
give him a career appointment. In doing so the Tribunal therefore responded
to the Applicant's plea that it should be adjudged that there was no legal
impediment to the continuation of his service.
49. In order to interpret or elucidate a judgement it is both permissible
and advisable to take into account any dissenting or other opinions
appended to the judgement. Declarations or opinions drafted by members of a
tribunal at the time of a decision, and appended thereto, may contribute to
the clarification of the decision. Accordingly the wise practice of the
Tribunal, following the example of the Court itself, has been not only to
permit such expressions of opinion but to publish them appended to the
judgement. It is therefore proper in the present case, in order better to
grasp the position of the Tribunal on the point now under examination, to
refer not only to the Judgement itself, but also to the "Statement" of Mr.
Endre Ustor and the dissenting opinion of Mr. Arnold Kean.
50. President Ustor, who voted in favour of the Judgement, considered that
the Applicant was "not eligible for consideration for a career appointment"
because the fact of secondment "precludes not only the extension of a
seconded fixed-term appointment but also its conversion to any other [p 46]
type of appointment without the consent of the Government concerned".
Vice-President Kean took a different view:
"Far from there being a generally accepted rule that in the absence of the
government's consent a seconded staff member must always be refused, in
limine, a career appointment at the end of his period of secondment, this
paragraph [of an International Civil Service Commission Report] makes it
quite clear that the government's view was not to be decisive but was to be
fully taken into account together with all other relevant factors."
It is evident that if the remaining member of the Tribunal, who did not make
any separate statement of his views, had shared the view of Mr. Ustor, the
Judgement would have been drafted to convey the view of the two-member
majority that the Applicant's secondment was an absolute bar to his
obtaining a career appointment, so that the question of "reasonable
consideration" would not arise. The Judgement of the Tribunal thus occupied
the middle ground between Mr. Ustor and Mr. Kean, differing from the
individual view of the former to the extent solely that it held that there
was no "legal impediment" barring a career appointment; and differing from
the latter in holding that "every reasonable consideration" had in fact
been given. Mr. Ustor did not express any disagreement on this second
point; he thought that "reasonable consideration" need not have been given,
in view of the factor of secondment, but that on the facts it was given.
51. It should however be observed that in any event the reply to be given by
the Court to the first question put to it by the Committee does not depend
on the correct interpretation of Mr. Ustor's meaning. The Court is asked
whether the Tribunal failed to exercise jurisdiction on a particular point;
the question is not whether the conclusion of the Tribunal on the point was
correct or not, but whether it addressed its mind to it. The Court does not
have to choose between the conclusion of the Tribunal and that of an
individual member of it, though it may find significance in the extent to
which that member shared the conclusion of his colleagues. It may even be
said that the greater the measure of revealed disagreement within the
Tribunal on the point, the more certain it is that it was considered and
debated, not overlooked or passed over.
52. The possibility that the Secretary-General, in considering the
Applicant's position, was under a misapprehension as to the effect of
secondment as a "legal impediment" to further appointment was dealt with,
in slightly different language, in the dissenting opinion of Vice-President
Kean. The Tribunal decided that the Applicant had no "legal expec-[p
47]tancy" of renewal of his fixed-term appointment. Mr. Kean examined the
letter of 21 December 1983, and interpreted it as follows:
"It was evidently the belief of the writer of the letter that, if the
Applicant had no expectancy of renewal, there was no possibility of his
receiving a career appointment in pursuance of the General Assembly
resolution",
i.e., that the lack of legal "expectancy of renewal", due to his seconded
status, constituted a "legal impediment". Since, in Mr. Kean's view,
"That resolution is, however, not conditional upon the staff member having
an expectancy of further employment, which is therefore in no way a
prerequisite of a career appointment",
he concluded that "the Respondent's decision was flawed by fundamental
mistakes of fact or law and requires to be set aside ...".
53. The deliberations of the Administrative Tribunal in the case under
consideration were held "from 11 May to 8 June 1984". Taking account of the
usual practices of judicial bodies composed of several members for the
exchange of views during the deliberation process, it seems to the Court
impossible to conclude that the Tribunal did not address its mind to the
issues which were specifically mentioned by President Ustor and
Vice-President Kean as the grounds for their disagreement with parts of the
Judgement. Since that disagreement persisted at the moment the Judgement
was voted upon, the Tribunal as a body, represented by the majority which
voted in favour, must also have drawn its conclusions on these issues, even
if those conclusions were not spelled out as clearly in the Judgement as
they ought to have been.
54. Before continuing, the Court should however consider what significance,
if any, should be attached to the interpretation of the Tribunal's Judgement
advanced by the Secretary-General, in his comments on the Applicant's
statement to the Committee (A/AC.86/R.118), and in his written statement
submitted to the Court in these proceedings. Clearly it is for the Court to
form its own view as to the proper interpretation of the Judgement; yet the
Secretary-General, both as a party to the case before the Tribunal, and as
chief executive officer of the Organization, is well placed to express views
on the matter. In his comments on the Applicant's written statement to the
Committee, the Secretary-General contended that:
"it is clear that the Tribunal did consider the Applicant's argument
favourably as it held that the Applicant was entitled to reasonable
consideration for a career appointment and that he was in fact given such
consideration (Judgement, para. XVIII).
………………………………………………………………………………………………
The Respondent submits that it is therefore clear that the Tribunal[p 48]
properly exercised its jurisdiction and competence under article 2 of its
statute when it heard and passed judgement on the application in the manner
which is reflected in its judgement in this case. It did not refuse to
exercise its jurisdiction ..."
However in his written statement submitted to the Court, the
Secretary-General argues, first, that the question of the existence of a
legal impediment was not in issue between the parties; secondly that the
Tribunal does not have jurisdiction to advise on or answer abstract
questions; and thirdly that an answer to the question was not required in
logic or in law. If these arguments imply an assumption by the
Secretary-General that the Tribunal did not in fact deal with the point,
this is not the same thing as saying that the Tribunal failed to exercise
its jurisdiction in that respect. On the contrary, the view of the
Secretary-General is that there was no such failure to exercise
jurisdiction, precisely for the three reasons just mentioned. The Court does
not however find it possible to endorse the interpretation of the Judgement
submitted to it by the Secretary-General: it sees no indication that the
Judgement left open the question of "legal impediment" as being "not in
issue between the parties". The Court's interpretation of the Judgement in
this respect has been explained above in paragraphs 38 to 40 of the present
Opinion.
55. The question whether "every reasonable consideration" was in fact given
was in any event one for the Tribunal to decide, and one which it did
decide, in the affirmative. The Court recalls what it stated in an earlier
advisory opinion on an application for review:
"Under Article 11 of the Statute of the Tribunal,... the task of the Court
is not to retry the case but to give its opinion on the questions submitted
to it concerning the objections lodged against the Judgement. The Court is
not therefore entitled to substitute its own opinion for that of the
Tribunal on the merits of the case adjudicated by the Tribunal. Its role is
to determine if the circumstances of the case, whether they relate to merits
or procedure, show that any objection made to the Judgement on one of the
grounds mentioned in Article 11 is well founded.
………………………………………………………………………………………………
under Article 11 of the Statute of the United Nations Administrative
Tribunal a challenge to a decision for alleged failure to exercise
jurisdiction or fundamental error in procedure cannot properly be
transformed into a proceeding against the substance of the decision."
(Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, I.C.J. Reports 1973, pp. 187-188, paras. 47-48.)
The Court's conclusion on the contention that the Secretary-General did not
give "reasonable consideration" under resolution 37/126 because he [p 49]
believed there existed a "legal impediment" must therefore be, in the words
used in respect of one of the contentions advanced in 1973:
"In the circumstances the Court does not think that the contention that the
Tribunal failed to exercise jurisdiction vested in it... is capable of being
sustained. The Tribunal manifestly addressed its mind to the question and
exercised its jurisdiction by deciding against the applicant's claim.
Therefore this contention turns out to concern not a failure by the Tribunal
to exercise its jurisdiction but an appeal against its decision on the
merits." (Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, I.C.J. Reports 1973, p. 201, para. 70.)
*
56. The Applicant, in his statement of views transmitted to the Court by the
Secretary-General, has gone beyond the terms of the question submitted to
the Court, which is whether the Tribunal failed to exercise its
jurisdiction on one specific point, and has contended that "the Tribunal
failed to 'apply its mind' to the determination of his rights and
contractual status, and the Secretary-General's obligations towards him".
It has also been suggested, in a legal opinion annexed to the Applicant's
comments on the written statements before the Court, that the Court may
"address itself to the much more general question as to whether the Tribunal
has not also omitted to exercise jurisdiction vested in it for reasons other
than those adduced by the Committee". As the Court has observed, it is
necessary to ascertain "the legal questions really in issue in questions
formulated in a request" (paragraphs 43 and 45 above); that is to say the
ques-tions "in issue" for the body requesting the opinion. It is not open to
the Court to examine every question which was "in issue" before the
Tribunal, to see whether the Tribunal exercised its jurisdiction in that
respect. The matters referred to in the Applicant's arguments, and in the
legal opinion mentioned above, do not appear to have been "in issue" before
the Committee: they are much wider than the question defined in the
application made to the Committee (A/AC.86/R.117, paras. 6-16). Furthermore,
they prove to be directed to showing that the Judgement of the Tribunal was
inconsistent or simply wrong. The Applicant asserts repeatedly that
"consideration for a career appointment could not have been reasonable" if
this or that circumstance was present, as he contends it was. The fact of
the matter is however that the Tribunal found that the consideration given
was reasonable, and to accuse the Tribunal of being wrong in that decision
is not to convict it of failure to exercise its jurisdiction, but rather to
complain of the way in which it did exercise it.
*[p 50]
57. It has been contended by the United States that the Tribunal's finding
that "reasonable consideration" had been given to the Applicant's case was
no more than an inference from an unsupported assertion made by the
Secretary-General in the letter of 21 December 1983. The conclusion which
the United States draws from this is however not that there was a failure by
the Tribunal to exercise jurisdiction vested in it: it is that the
Tribunal's alleged failure "could be construed to be, in the words of
Article 11 of the Tribunal's Statute,'. . . a fundamental error in
procedure which has occasioned a failure of justice ..The opinion of the
Court has however not been requested on the question whether the Judgement
of the Tribunal may be defective on this ground.
**
58. To sum up, the Court, after due analysis of the text of Judgement No.
333 of the Administrative Tribunal considers that the Tribunal did not fail
to exercise jurisdiction vested in it "by not responding to the question
whether a legal impediment existed to the further employment in the United
Nations of the Applicant after the expiry of his contract on 26 De-cember
1983". Accordingly, the answer to the First question put to it in this case
by the Committee must be in the negative.
***
59. The Court now turns to the second of the two questions which have been
submitted to it for advisory opinion by the Committee, namely:
"Did the United Nations Administrative Tribunal, in the same Judgement No.
333, err on questions of law relating to provisions of the Charter of the
United Nations?"
In paragraph 27 above the Court has recalled the extent of its powers when
an opinion of the Court is requested on the basis of an objection that the
Tribunal had "erred on a question of law relating to the provisions of the
Charter of the United Nations". With regard however to the scope of the
enquiry to be conducted by the Court in order to decide upon an objection
made on the ground now under examination it may be recalled that in its
1982 Advisory Opinion the Court came to the following conclusion:
"In any event, the Court clearly could not decide whether a judgement about
the interpretation of Staff Regulations or Staff Rules has erred on a
question of law relating to the provisions of the Charter, without looking
at that judgement to see what the Tribunal did decide. While to that extent
the Court has therefore to examine the Tribunal's decision on the merits, it
is not the business of the Court, after making that examination, itself to
get involved in the question of the proper interpretation of the Staff
Regulations and Staff Rules, as [p 51]such, further than is strictly
necessary in order to judge whether the interpretation adopted by the
Tribunal is in contradiction with the requirements of the provisions of the
Charter of the United Nations." (Application for Review of Judgement No. 273
of the United Nations Administrative Tribunal, I.C.J. Reports 1982, p. 358,
para. 64.)
60. The Court also emphasized that:
"it would be quite mistaken to suppose that, because the law applied by the
Tribunal, or indeed the law applied by any organ of the United Nations,
derives its ultimate validity from the Charter, the ground of Article 11 now
under examination means that an objection to any interpretation by the
Tribunal of staff rules and regulations is a matter for an advisory opinion
of the Court" (ibid., p. 358, para. 65).
It declined, in short, to interpret the words "error on a question of law
relating to the provisions of the Charter" as meaning the same as "error of
law" (ibid., pp. 358-359) and continued:
"But if the interpretation, in general, of Staff Regulations and Rules is
not the business of the Court, it is, as already noted, very much the
business of this Court to judge whether there is a contradiction between a
particular interpretation or application of Staff Regu-lations and Rules by
the Tribunal and any of the provisions of the Charter..." (Ibid., p. 359,
para. 66.)
61. The Court would only add to this statement that it is also open to the
Court to judge whether there is any contradiction between the Tribunal's
interpretation of any other relevant texts, such as, in this case, the
provisions of General Assembly resolution 37/126, and any of the provisions
of the Charter. It would also note that, according to the Tribunal's own
jurisprudence on the subject of its own competence,
"Article 2.1 of the Statute of the Tribunal refers, in defining the
competence of the Tribunal, to applications alleging non-observance of
contracts of employment of staff members of the Secretariat of the United
Nations, or of their terms of appointment. The words 'contracts' and 'terms
of appointment' are stated to include all pertinent regulations and rules in
force at the time, but this phraseology cannot be assumed to exclude the
possible application of any other sources of law, particularly the Charter,
which is indeed the constitution of the United Nations and contains certain
provisions relating to staff members ..." (Judgement No. 162 (Mullan).)
[p 52]
**
62. In the statement of his views transmitted to the Court the Applicant has
expressed his objections to the Judgement of the Tribunal in terms of
"principles" of the Charter rather than as breaches of specific provisions;
he contends that "a failure [by the Tribunal] to reconcile its conclusions
with principles of the Charter constitutes no less of an error of law than
an erroneous interpretation of a Charter provision". In the view of the
Court, however, there was good reason for the wording chosen for the
relevant passage in Article 11 of the Tribunal's Statute, referring to an
error on "a question of law relating to the provisions of the Charter". A
claim of error of law in a Judgement of the Tribunal based on alleged lack
of respect for principles, without reference to any specific texts, might
well serve as a cover for a generalized attack on the merits of the
Tribunal's decision, and an invitation to the Court to "retry the case and
to attempt to substitute its own opinion on the merits for that of the
Tribunal" (I.C.J. Reports 1982, p. 356, para. 58), which the Court has
declared is not its proper role. At all events, in his Application to the
Committee (A/AC.86/R.117) and in his comments on the written statements, the
Applicant has expressed his objections more precisely in terms of specified
articles of the Charter, and it is by reference to these texts that the
Court will examine whether the objection of error of law relating to the
provisions of the Charter is or is not well founded.
63. As noted above, the Court considers that it is clear from the Judgement
that for the Tribunal the Secretary-General did give "every reasonable
consideration" to the possibility of a career appointment for the Applicant,
and thus complied with the requirements of General Assembly resolution
37/126. In his comments on the written statements submitted to the Court,
the Applicant "submits that no such finding of fact was made . . . Even if
it were, whether or not such consideration was 'reasonable' is a legal
determination and therefore reviewable." The Secretary-General, on the other
hand, argued in his written statement that the question whether or not
"reasonable consideration" had been given was "not a question of law
relating to Article 101, paragraph 3, of the Charter".
64. It is essential to keep clearly in mind the distinction between the
Secretary-General's discharge of his duties and the performance by the
Tribunal of its judicial functions, even though the same considerations may
have had to be taken into account for both. It was the duty of the
Secretary-General to give "every reasonable consideration" to the Applicant
as a candidate for a career appointment; if he failed to do so, he failed to
comply with General Assembly resolution 37/126. In order to do so, or in the
course of doing so, he had to weigh up all relevant considerations,
including the fact of the Applicant's secondment, in a reasonable manner in
order to arrive at a conclusion. The Tribunal, when seised of the question,
did not have to follow the Secretary-General through this process, [p
53]checking every step of the sequence. It had to decide whether there had
been "non-observance" of any of the relevant texts, including General
Assembly resolution 37/126; it had therefore to determine whether "every
reasonable consideration" had been given. It clearly had the power and the
duty to re-examine the question of secondment as a legal impediment, to
satisfy itself that the Secretary-General had not committed an error of law
on the point, and this it did. It had then to assess the question of
rea-sonableness; but this did not, in the Court's view, involve the Tribunal
in an attempt to make its own decision as to whether the Applicant should be
given a career appointment.
65. Once the Tribunal had found that the Applicant did not possess a "legal
expectancy" of further employment, involving a corresponding obligation on
the United Nations to "provide continuing employment" (see paragraphs 33 and
34 above), his entitlement was only to receive "every reasonable
consideration". Such consideration must by definition involve latitude for
the exercise of the Secretary-General's discretion; and the Tribunal in fact
found that "the Respondent had the sole authority to decide . . . whether
the Applicant could be given a probationary appointment" and that he
"exercised his discretion properly" (para. XVIII). The consistent
jurisprudence of the Tribunal itself is to the effect that where the
Secretary-General has been invested with discretionary powers, the Tribunal
will in principle not enquire into their exercise, provided however that
"Such discretionary powers must be exercised without improper motive so that
there shall be no misuse of power, since any such misuse of power would call
for the rescinding of the decision" (Judgement No. 50 (Brown)). Similarly,
the Tribunal recalled in the Judgement now under examination its finding in
an earlier case that
"While the measure of power here was intended to be left completely within
the discretion of the Secretary-General, this would not authorize an
arbitrary or capricious exercise of the power of termination, nor the
assignment of specious or untruthful reasons for the action taken, such as
would connote a lack of good faith or due consideration for the rights of
the staff member involved." (Judgement No. 54 (Mauch).)
66. Essentially the complaint which the Applicant makes of the Tribunal's
Judgement is not so much that the Tribunal itself made errors of law
relating to the provisions of the Charter as that the Secretary-General, in
taking his decision as to continued employment for the Applicant, did not
respect certain provisions of the Charter, and the Administrative Tribunal
failed so to find. Furthermore, if an objection to a judgement of the
Tribunal is to be sustained on the grounds of error of law relating to the
provi-[p 54]sions of the Charter, the Tribunal must have been presented
with an issue for decision on which such an error could be made. It is
therefore appro-priate to keep in mind what was the case as presented to the
Tribunal, in order to appreciate what it was that the Tribunal was asked to
decide.
**
67. The first provision of the Charter in respect of which the Applicant
contends that the Tribunal made an error of law is Article 101, paragraph
1, thereof, which provides that "The staff [of the Secretariat] shall be
appointed by the Secretary-General under regulations established by the
General Assembly". The passage criticized in the Judgement in this respect
arises out of the question whether any role ought to have been played by the
Appointment and Promotion Board. In his "Observations on the Answer of the
Respondent" submitted to the Tribunal, the Applicant, under the heading
"Reasonable consideration for a career appointment was erroneously denied",
devotes three paragraphs to the contention that "The Respondent prevented
consideration by the Appointment and Promotion Board". According to the
material before the Tribunal, even though the Applicant had been in the
service of the United Nations for a number of years, his first career
appointment would, in accordance with established rules and practices, have
been a probationary appointment (see United Nations Staff Rule 104.12
(a)and 104.13 (a)(1)). By resolution 38/232 (VI, para. 5) the General
Assembly had on 20 December 1983 recommended that following five years'
satisfactory service on fixed-term contracts, the requirement for a
probationary appointment should be dispensed with; but the Tribunal held
that "until the Respondent had accepted" that recommendation, "the existing
procedure of offering a probationary appointment to a candidate remains
applicable" (para. XVIII). The customary procedure leading to the offer of a
probationary appointment was that a recommendation would be made by the
substantive department where the appointment was to be held, and this would
be considered by the administrative service, the Office of Personnel
Services. The resulting proposal would be then considered by the
Appointment and Promotion Board. It may also be noted in passing that the
Applicant in his letter to the Secretary-General of 13 December 1983, relied
on United Nations Staff Rule 104.14 (a) (ii), which requires the Appointment
and Promotion Board, in filling vacancies, normally to "give preference,
where qualifications are equal, to staff members already in the
Secretariat". However, the Applicant complained that while the substantive
department in which he had worked clearly had the intention of proposing
his "continued appointment", the administrative service never gave
consideration to a proposal to that effect because "upon instruction by the
Office of the Secretary-General" it informed the Applicant on 23 November
1983 that "it is not the intention of the [p 55] Organization to extend your
fixed-term appointment beyond its expiration date".
68. It was contended by the Applicant before the Tribunal that the
possibility of his being given a career appointment was never considered by
the Appointment and Promotion Board because, as a result of the action taken
by the Office of the Secretary-General, no proposal ever reached that Board.
He presented this as an element of the denial of "reasonable consideration"
which he was alleging. The Tribunal's conclusions on this appear in
paragraphs XVI to XVIII of the Judgement: in effect, it rejected the
argument that a right to receive "reasonable consideration" entailed a right
to be considered by the Appointment and Promotion Board: General Assembly
resolution 37/126, while binding on the Secretary-General, laid down no
special procedure, and, as noted above, the procedure recommended by
General Assembly resolution 38/232 had not yet been implemented.
Accordingly, in the Tribunal's view,
"the existing procedure of offering a probationary appointment to a
candidate remains applicable, and ... in the absence of such an appointment
it is left to the Respondent to decide how 'every reasonable consideration'
for a career appointment should be given to a staff member under General
Assembly resolution 37/126, IV, paragraph 5. In the present case, the
Respondent had the sole authority to decide what constituted 'reasonable
consideration' and whether the Applicant could be given a probationary
appointment." (Para. XVIII.)
69. On the basis of this part of the Judgement, the Applicant claims that "a
question of law relating to Article 101, paragraph 1, of the Charter"
arises. He observes that "The Secretary-General's powers of appointment are
limited, under Article 101 (1) of the Charter, by the obligation to carry
out the 'regulations established by the General Assembly'", and complains
that
"The Tribunal made no attempt to apply its own or any other legal standard
of reasonableness, nor to set any limits on the Secretary-General's
discretion, limits which it had itself articulated in the past (e.g.,
Judgement No. 54, Mauch) and which the Court recognized in Fasla as a
fundamental part of the Tribunal's role (I.C.J. Reports 1973, at p. 205).
The Tribunal's judgement, if allowed to stand, permits the Respondent to
act as though General Assembly Resolution [p 56]37/126, Section IV,
paragraph 5, had never been passed. Indeed it endows him with even greater
discretionary powers than he had before the Resolution, when the normal
mechanisms and procedures for appointment applied."
70. It does not however appear to the Court that the Judgement of the
Tribunal, properly understood, raises any question of law relating to
Article 101, paragraph 1. In the passage in paragraph XVIII of its
Judgement quoted at the end of paragraph 68 above, the Tribunal was not
examining the measure of substantive discretion left to the
Secretary-General by resolution 37/126, in the sense of the limits on that
discretion set by the jurisprudence of such Administrative Tribunal
Judgements as No. 50 (Brown) and No. 54 (Mauch). It was considering whether
any specified procedure had to be followed to ensure "reasonable
consideration", and concluded that that was not so. The Court does not, in
this context, read the phrase "In the present case, the Respondent had the
sole authority to decide what constituted 'reasonable consideration"' as
meaning that the only test of reasonableness was whether the
Secretary-General thought his conclusion was reasonable, but as meaning
that it was for the Secretary-General to decide what process constituted
"reasonable consideration" — whether it be consideration by the
Secretary-General himself with the advice of his senior officials, or by the
Appointment and Promotion Board, or by whatever other system might commend
itself. This interpretation was in fact presented by the Applicant himself
in his statement of views:
"What the Judgement appears to be saying is that only in the case of a
probationary appointment need a candidate be referred to the Appointment and
Promotion machinery for consideration. For any other type of appointment the
Secretary-General has sole authority to employ whatever method of
consideration he chooses."
This procedural question was one of the issues placed before the Tribunal by
the Applicant, through his complaint that the Appointment and Promotion
Board had not been consulted; whereas the Secretary-General had never
claimed before the Tribunal that he possessed an unlimited and unverifiable
discretion to refuse an appointment on whatever ground he chose to classify
as "reasonable". On the contrary, in his Answer before the Tribunal, he
stated that
"Applicant's re-appointment was a matter to be decided upon by the
Secretary-General in the exercise of his authority and respon-[p
57]sibility under the Charter and the Staff Regulations after consideration
of all the circumstances in the case",
and in effect invited the Tribunal to say that he had properly exercised
this responsibility. He did not assert that the Tribunal had no power to
examine his actions on the ground that he had "sole authority" to decide
what was "reasonable". Nor can the Court conclude, in the light of the
Tribunal's quotation of its own jurisprudence, that the Tribunal went beyond
the confines of the case before it to assert the existence of such an
unfettered discretion.
71. Furthermore, it is difficult to follow the Applicant's contention that
"The Tribunal made no attempt to apply its own or any other legal standard
of reasonableness, nor to set any limits on the Secretary-General's
discretion . . .", when the Tribunal in fact quoted the passage from its own
Judgement No. 54 (Mauch) referring to the limitation of the exercise of the
Secretary-General's discretion, and made a specific finding that "the
Respondent's action in the exercise of his discretion cannot be impugned on
any of the grounds" stated in that Judgement (para. XIX).
72. However while it is true that the Secretary-General made no claim to an
unfettered discretion, and the Tribunal nowhere stated that he possessed
one, the Tribunal did in effect accept as sufficient a statement by the
Secretary-General that the "reasonable consideration" required by resolution
37/126 had been given, and did not require him to furnish any details of
when and how it was given, let alone calling for evidence to that effect.
The view might therefore be advanced that the Tribunal did not properly
discharge its function of judicial review of administrative action, since
the practical effect of an unquestioning acceptance of the
Secretary-General's assertion that he had given "every reasonable
consideration" would, it is suggested, be that he would enjoy such an
unfettered discretion. It is however necessary to recall once again that
the question before the Court is a different one: whether the Tribunal erred
on a question of law relating to the provisions of the Charter of the United
Nations. It is only if the Tribunal can be said, by the course of action it
is alleged to have adopted, to have erred on a question of law of that kind,
that it becomes the duty of the Court to examine the matter. The Court has
therefore to ask, first, what was the error of law which, it is asserted,
was committed by the Tribunal; and secondly, what was the source of the rule
of law it is said to have failed properly to respect, in order to establish
whether the error was one which related to the provisions of the Charter.
73. The Tribunal was seised of an application "alleging non-observance" of
the "terms of appointment" of the Applicant, such "terms of appointment"
including "all pertinent regulations and rules in force at the time", and
including also General Assembly resolution 37/126. As [p 58]
emphasized in the Court's 1982 Opinion (see paragraph 60 above) it is the
business of the Court to judge whether there is a contradiction between an
interpretation by the Tribunal of a text such as resolution 37/126 and any
of the provisions of the Charter. Nothing in the resolution itself, or in
the Staff Rules and Regulations, laid down how the Tribunal was to handle a
claim of breach by the Secretary-General of a provision requiring him to
give "every reasonable consideration" to a staff member's employment, or
what evidence it was to require, nor do the Statute and Rules of the
Tribunal throw light on the matter. The Tribunal did not interpret the
resolution as requiring the Secretary-General to demonstrate to the Tribunal
the manner in which "reasonable consideration" had been given; and the Court
is unable to regard this interpretation as in contradiction with Article
101, paragraph 1, of the Charter. It is therefore not called upon to
consider whether the Tribunal could or should have proceeded differently.
The question whether, for example, the Tribunal made a correct application
of the principle of the burden of proof (cf. Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para.
101) does not appear to the Court to be one of law "relating to the
provisions of the Charter of the United Nations", and does not therefore
require examination in the present Opinion.
74. The Tribunal also found, distinguishing in this respect the ILO
Administrative Tribunal Judgment No. 431 (Rosescu), that
"there has been no allegation, and far less any evidence, that the
Respondent sought instructions from any Member States, or that he had in any
manner let the wishes of a Member State prevail over the interests of the
United Nations ..." (para. XIX).
While it is correct that there had been no allegation by the Applicant that
the Secretary-General had sought instructions from any member State — and
indeed the Applicant has not alleged this in his communications to the Court
(see paragraph 76 below) —, the Applicant had, in his plead-ings, referred
to the dictum in the Mauch case as to the significance of "assignment of
specious or untruthful reasons for the action taken", and suggested that it
was applicable. The impropriety alleged by him lay in the making of
statements by senior Secretariat officials, quoted in paragraph 16 above,
which he interpreted as revealing a belief that his secondment acted as a
bar to all further employment. According to the Applicant, if the
Secretary-General did not hold that belief, "then the reasons given by the
officials quoted ... were specious".
75. These various statements were before the Tribunal, as annexes to the
Applicant's Statement of Facts and Arguments and Observations on the Answer,
but the Tribunal did not refer to them, except for the letter of 21 December
1983, of which, as the Court has noted, the Tribunal gave an interpretation
different from that of the Applicant. It had before it also,[p 59] however,
the Respondent's Answer, in which he maintained the position that "there was
no contractual or otherwise legally based prohibition on the
Secretary-General, either to grant or withhold another appointment", and
that "The decision in this case was legitimately motivated by the
Secretary-General's perception of the interests of the Organization to which
he properly gave precedence over competing interests". The Tribunal need
not have accepted this; it might have regarded the statements quoted by the
Applicant as evidence that the problem of secondment and the lack of
government consent had been allowed to predominate more than the
Secretary-General was ready to admit. That was not however the view it took:
it found that the Secretary-General "exercised his discretion properly".
Whether or not this was an error of judgment on the Tri-bunal's part is not
to the purpose; what is certain is that it was not an error on a question of
law relating to Article 101, paragraph 1, of the Charter. It could perhaps
be contended that the Tribunal might have committed an error in not finding
that the Secretary-General had failed to apply correctly the applicable
texts. It has however to be recalled that while, as the Court observed in
1982 "all valid regulations and rules adopted by a United Nations organ
cannot be other than based on the provisions of the Charter", the Court went
on to point out that
"It does not follow, however, that every question of the interpretation or
application of those regulations and rules is a question of law relating to
the provisions of the Charter" (I.C.J. Reports 1982, p. 358, para. 65).
Whatever view be taken as to the way in which the Tribunal examined the
exercise by the Secretary-General of his discretion, taking into account the
apparent inconsistency between the Secretary-General's pleading and the
reported statements of his senior officials, the essential point is that the
Tribunal did not abandon all claim to test such exercise against the
requirements of the Charter. On the contrary, it re-affirmed the need to
check any "arbitrary or capricious exercise" of a discretionary power.
**
76. The next provision of the Charter which the Applicant claims has to be
considered inasmuch as he contends that the Tribunal committed an error of
law relating to it is Article 100, paragraph 1, which provides:
"In the performance of their duties the Secretary-General and the staff
shall not seek or receive instructions from any government or from any other
authority external to the Organization. They shall re-[p 60]frain from any
action which might reflect on their position as international officials
responsible only to the Organization."
The Applicant has emphasized that he does not allege that in refusing him
further employment the Secretary-General was merely carrying out the
instructions of a government, or that the Secretary-General is precluded
from taking into consideration formal representations made to him by member
States. He refers however to "public statements by high officials of the
Secretary-General" — those described in paragraph 16 above — as
"indicating that he believed that further employment of the Applicant was
impossible without the consent of the USSR Government, a belief which the
Respondent himself has subsequently admitted to be erroneous. It was that
belief, and the Tribunal's failure to fault it, that the Applicant alleged
to be a dereliction from Article 100.1." (Emphasis original.)
77. It will be apparent from the Court's analysis of the Tribunal's
Judgement in paragraphs 27 to 37 above that the Court is unable to uphold
the Applicant's contention. His argument rests on the following premises:
that the Secretary-General believed that he could not give the Applicant any
further employment whatever without the consent of his former national
Government; that the Tribunal found that this was the Secretary-General's
belief; that that belief was wrong as a matter of law; and that the Tribunal
failed to find that it was wrong in law. The Court however does not consider
either that the Tribunal found the existence of the belief attributed to the
Secretary-General, or that the Tribunal found that such a belief was or
would have been correct. In view of the nature of the decision actually
taken by the Tribunal on the facts of the case, it does not appear necessary
to consider the matter further.
78. The Applicant also suggests that the Judgement contains an error of law
relating to the provisions of Article 100 of the Charter in certain other
respects. In the statement of his views transmitted to the Court he argues
as follows:
"The necessity to construe strictly the limits of a government involvement
arises not only from the interests of the Organization, not only from the
legally protected rights of officials, but also from Article 100 of the
Charter. An official who comes in with the consent of a government may not
expect, nor may the Organization bestow, special treatment. Still less may
the Tribunal suggest that special treatment would be proper . . . Tribunal
Judgement 333 failed to find impropriety in a staff member being barred from
entering Headquarters in order to avoid offense to a Member State."[p 61]
Alluding to the finding by the Tribunal that
"evidence was available that the USSR authorities were contemplating
replacing the Applicant by another person whom they had already selected and
whom they wished to be trained further by the Applicant" (para. XI),
and that
"It was suggested to him that he should leave for Moscow early in 1983 for
this purpose, but his application for leave was refused by the United
Nations" (ibid.),
the Applicant also complained that
"The Judgement finds no impropriety in a Member State 'contemplating
replacing the Applicant by another person whom they had already selected',
or 'suggesting to him that he should leave for Moscow' soon after he had
undertaken programme duties under a new contract, thus sanctioning a higher
allegiance to his country than to the United Nations."
In regard to these contentions, it suffices, first, to say that the Tribunal
was not called upon to say that the ban on entering Headquarters was a
"non-observance" of the Applicant's "contract of employment" or of his
"terms of appointment" in the exercise of its competence under Article 2 of
its Statute, since the Applicant made no such claim in the pleas he
presented to the Tribunal. The Tribunal therefore made no finding in that
respect. Secondly it had no competence, under its Statute, to rule on the
legality or propriety of the actions of a member State, and it did not do
so. The Court is therefore unable to see any possibility that the Tribunal's
Judgement contained an error of law concerning the provisions of the Charter
in connection with these aspects of the case.
**
79. The Applicant next refers to Article 101, paragraph 3, of the Charter,
which provides:
"The paramount consideration in the employment of the staff and in the
determination of the conditions of service shall be the necessity of
securing the highest standards of efficiency, competence, and integrity. Due
regard shall be paid to the importance of recruiting the staff on as wide a
geographical basis as possible."[p 62]
In his application to the Committee, the Applicant deduces from this that
"a staff member whose service record has amply demonstrated the qualities of
efficiency, competence and integrity, and who has received the unqualified
endorsement of his superiors, should not be excluded from consideration by
extraneous, secondary or illegiti-mate factors...".
He complains that
"Neither the Majority Judgement [of the Tribunal] nor the Concurring
Statement [of President Ustor] give any indication that they have weighed
the mandate of Article 101.3 against other factors of lesser paramountcy."
In his comments on the written statements he claims that "The Judgement
itself, by omitting any consideration of Article 101.3, makes merit
subservient to other considerations".
80. It appears to the Court that these objections must be interpreted as a
contention by the Applicant that the Tribunal should have found that
"reasonable consideration" had not been given either because the
Secretary-General was (wrongly) convinced that secondment constituted a bar
to all further employment, or because he allowed the wishes of a member
State to prevail over the "necessity of securing the highest standards of
efficiency, competence and integrity". As the Court has already indicated,
the Tribunal, so far from finding that the Secretary-General acted from
mistaken conviction of the existence of a legal impediment, held that he had
given the Applicant's case reasonable consideration but had decided, in the
exercise of his discretion, not to give him further employment. The
Secretary-General stated before the Tribunal that
"The decision now contested was taken by the Secretary-General after
consideration of all the circumstances in the case, including Applicant's
service record, together with the estimation of his supervisors and
representations on his behalf by counsel, and the events of 10 February 1983
and thereafter, together with representations to diverse effect by the
permanent missions of two member States",
and that
"The decision in this case was legitimately motivated by the
Secretary-General's perception of the interests of the Organization to
which he properly gave precedence over competing interests."
The Secretary-General submitted that the consideration he gave to the matter
constituted "reasonable consideration" within the meaning of [p 63]General
Assembly resolution 37/126; and as already noted, the Tribunal upheld that
view.
81. It is clear that the expression "the paramount consideration" (in
French, la considération dominante) in Article 101 of the Charter is not
synonymous with "the sole consideration"; it is simply a consideration to
which greater weight is normally to be given than to any other. Nor does it
mean that "efficiency, competence and integrity" together constitute a
sufficient consideration, in the sense that a high enough standard of each
gives rise to an entitlement to appointment. It is also clear, since
paragraph 1 of the Article provides that "The staff shall be appointed by
the Secretary-General under regulations established by the General
Assembly", that the task of balancing the various considerations, in cases
where they incline in different directions, is for the Secretary-General,
subject to any general directions which might be given to him by the General
Assembly. Resolution 37/126 itself constitutes such a direction, and one
which operated in favour of the Applicant as compared with any outside
candidate, or one without his record of more than "five years' continuing
good service". Both on this basis, and on the basis of Article 101,
paragraph 3, of the Charter, it is material to observe that the Applicant's
efficiency and competence were highly spoken of by his superiors. The
Tribunal did not make any finding reflecting on his integrity; it did
however discuss the consequences of a change of nationality by a staff
member in another connection —- to be considered below.
82. The decision was that of the Secretary-General; and it was not for the
Tribunal, nor indeed for the Court, to substitute its own appreciation of
the problem for that of the Secretary-General. The Court could only find
that the Tribunal had in this respect "erred on a question of law relat-ing
to the provisions of the Charter" if it found that the Tribunal had upheld
a decision of the Secretary-General which could not be reconciled with the
relevant article of the Charter. That does not appear to the Court to be the
case. The decision of the Secretary-General cannot be said to have failed to
respect the "paramount" character of the considerations mentioned in
Article 101, paragraph 3, simply because he took into account "all the
circumstances" enumerated in his Answer (paragraph 80 above) in order to
give effect to "the interests of the Organization".
83. Something should however be said of the reference made by the
Secretary-General to "the events of 10 February 1983 and thereafter". That
date was of course that of the Applicant's communication to the Government
of the USSR. In this connection, the Tribunal did comment on the
significance and consequences of the Applicant's actions in a passage of
its Judgement which has not yet been examined (see paragraph 34 above). The
Tribunal was dealing with an argument submitted by the Applicant to the
effect that
"even if secondment existed or was implied for his service in the [p 64]
United Nations, a change in his status took place from 10 February 1983
onwards when he resigned from the service of the USSR Government, and that
in fact a new contractual relationship could be assumed to have been created
between him and the Respondent. He argues that the Respondent, by not taking
disciplinary action against him, by promoting him, by allowing him to serve
out his contract until the date of its expiry (26 December 1983), and by
letting him continue as Vice-Chairman of the Appointment and Promotion
Committee, created a new, although tacit, agreement in which the Soviet
Government was not in any way involved." (Para. VIII.)
The Respondent had argued in reply that
"Certainly, Respondent does not consider that a continuing relationship
with a national government is a contractual obligation of any fixed-term
staff member — seconded or not —, nor would a break between a staff member
and his government constitute in itself grounds for terminating the
fixed-term contract of a fixed-term staff member seconded or not. It is not
for Respondent to approve or disapprove Applicant's transfer of
allegiance."
84. The Tribunal examined "the events leading to and following from the
Applicant's resignation from the service of the USSR Government", since it
considered that they threw "much light for the resolution of this
controversy" (para. IX), i.e., the controversy as to the alleged "new
con-tractual relationship". It observed that "The Applicant was entitled to
act in any way he considered best in his interest, but he must necessarily
face the consequences of his actions" (para. XII). After noting that he
could not "bring about any legal expectancy of renewal of his appointment",
the Tribunal continued:
"Another consequence of his actions raised the question of his suitability
as an international civil servant. In Judgement No. 326 (Fischman), the
Tribunal referred to the widely held belief mentioned in a report of the
Fifth Committee of the General Assembly that
'International officials should be true representatives of the cultures and
personality of the country of which they were nationals, and that those who
elected to break their ties with that country could no longer claim to
fulfil the conditions governing employment in the United Nations',
and held that this 'must continue to provide an essential guidance in this
matter'."
The Court notes in this respect that the "widely held belief" amounts to [p
65] the views expressed by some delegates to the Fifth Committee in 1953 at
the Eighth Session of the General Assembly, which never materialized in an
Assembly resolution. The Tribunal's Judgement No. 333 continues:
"In the same judgement [No. 326], the Tribunal also recalled a part of
Information Circular ST/AFS/SER.A/238 of 19 January 1954 which stated inter
alia that
'The decision of a staff member to remain on or acquire permanent residence
status in ... [the] country [of his duty station] in no way represents an
interest of the United Nations. On the contrary, this decision may adversely
affect the interests of the United Nations in the case of internationally
recruited staff members in the Professional category ...'
The Applicant had been granted asylum in the United States of America and
there arose the problem of his having to waive privileges and immunities
with the permission of the Respondent. Such a waiver was necessary for
changing his visa category under the United States laws. However there was
apparently no immediate problem and it seems that no request was made to the
Respondent for agreeing to the Applicant waiving his privileges and
immunities. Besides, a private bill was later introduced on the Applicant's
behalf in the United States House and Senate." (Para. XII.)
85. The Secretary-General's Answer before the Tribunal, in which he
commented on the question of the change of nationality in the terms quoted
in paragraph 83 above, is dated 14 March 1984. However, on 17 May 1984 the
Tribunal gave its Judgement (No. 326) in the case of Fischman, in which it
refused to order rescission of a decision of the Secretary-General whereby
Mr. Fischman was not permitted to take steps to acquire permanent resident
status in the United States, with a view to obtaining United States
nationality, and in this connection the Tribunal made the observations on
the significance of national ties quoted in paragraph XII of Judgement No.
333. It appears therefore that in considering the Secretary-General's
submissions, the Tribunal took the view that on this point they were not
consistent with the ideas found in the Fischman decision, and thought it
appropriate to enter a caveat, even though it was not essential to the
argument of Judgement No. 333.
86. In this passage of its Judgement, therefore, the Tribunal was not
endorsing or reversing a decision of the Secretary-General, but
disapproving one argument which the Secretary-General had put forward in
support of his position. Since the Tribunal nonetheless upheld the
Secretary-General's position, the passage in question in the Judgement is
an [p 66] obiter dictum. This circumstance does not however affect the duty
of the Court to consider whether this ground of objection is or is not well
founded. It is the Judgement of the Tribunal, not the action of the
Secretary-General giving rise to the application to the Tribunal, which has
to be reviewed by the Court; and it is the Court's duty to point out any
error "on a question of law relating to the provisions of the Charter" in a
judgement of the Tribunal referred to it on that ground, whether or not
such error affected the disposal of the case. This is clear from the wording
of Article 11 of the Tribunal's Statute: it is only where what is alleged is
"a fundamental error in procedure" — the fourth ground specified in that
Article — that there exists the additional requirement that that error
should have "occasioned a failure of justice". The other errors mentioned
therefore constitute grounds of objection in themselves, regardless of their
impact on the operative part of the Tribunal's decision.
87. Having considered the passage in question carefully, the Court is
however unable to find that the Tribunal there committed an error of law
"relating to the provisions of the Charter". The question is of course not
whether the Judgement in the Fischman case contained such an error, but
whether the reasoning of the Tribunal in Judgement No. 333, in support of
which it quoted its decision in the earlier case, erred on such a question
of law. The Secretary-General had in effect argued that the retention of the
Applicant in service notwithstanding his severance of his ties with his own
government did not imply that a "new contractual relationship" had come into
existence. For the Secretary-General, the change of nationality was an act
having no specific legal or administrative consequences. The Tribunal
upheld the Secretary-General's main contention, but at the same time pointed
out that, according to one view, the change of nationality was not
necessarily such an act, but one which in some circumstances "may adversely
affect the interests of the United Nations" (ST/AFS/SER.A/238 quoted in the
Judgement in the Fischman case). This is very far from saying that a change
or attempted change of nationality may be treated as a factor outweighing
the "paramount" consideration defined by Article 101, paragraph 3, of the
Charter, which is what the Applicant accuses the Secretary-General of having
done.
88. It is illuminating to consider an earlier Judgement of the Tribunal in
which it had occasion to find that the Secretary-General had contravened
Article 101, paragraph 3, of the Charter. In Judgement No. 310 (Estabial),
recruitment to a particular post had been limited to candidates from
French-speaking African countries. This was done in the belief, which the
Tribunal found to be mistaken, that this was a correct application of the
last sentence of Article 101, paragraph 3, providing that "Due regard shall
be paid to the importance of recruiting the staff on as wide a geographical
basis as possible" (Judgement No. 310, para. XIV). The Tribunal ruled that
[p 67]
"It was not for the Secretary-General to alter these conditions laid down by
the Charter and the Staff Regulations by establishing as a 'paramount'
condition the search, however legitimate, for 'as wide a geographical basis
as possible', thereby eliminating the paramount condition set by the Charter
in the interests of the service." (Judgement No. 310, para. XIV, in fine.)
In effect the contention of the Applicant in the present case is that the
only possible explanation of the Secretary-General's decision, in view of
all the factors militating in his favour (more than five years' service,
glowing reports from his superiors, his experience in a post requiring
lengthy training), is that the Secretary-General established as a
"paramount" consideration the possibility of Government objection to the
recruitment of a previously seconded staff member and that this would be
contrary to the requirements set by the first sentence of Article 101,
paragraph 3, of the Charter.
89. The Tribunal however found that the Secretary-General did not believe
that the secondment factor was a legal impediment to the Applicant's further
employment, and that "reasonable consideration" had been given. It therefore
did not find that the secondment factor had been established as a rival
"paramount consideration". The Applicant has contended that the fact that
the other considerations referred to by the Secretary-General were able to
outweigh the considerations militating in favour of his re-appointment
casts grave doubt on whether the "paramount consideration" of the Charter
was allowed to operate as it should. However, as recalled above, "the
Court's proper role is not to retry the case and to attempt to substitute
its own opinion on the merits for that of the Tribunal" (I.C.J. Reports
1982, p. 356, para. 58). The Court is, on balance, unable to conclude that
the Judgement of the Tribunal on this point has been shown to be in
contradiction with the Charter. It found as a fact that there had been
"reasonable consideration" of the Applicant's case, and by implication that
the Secretary-General had not been under a misapprehension as to the effect
of secondment. The provision of Article 101, paragraph 3, of the Charter
must have been present to the mind of the Tribunal when it considered the
question. In the view of the Court, these findings cannot be disturbed on
the ground of error on a question of law relating to the provisions of the
Charter.
*
90. It has been suggested that the passage of the Tribunal's Judgement
quoting the Fischman decision amounts to a finding that the Applicant's
actions on and after 10 February 1983 were such as to "adversely affect the
interests of the United Nations" and that they cast such doubt on "his
suitability as an international civil servant" that no "reasonable
consideration" could possibly lead to a further appointment. This, it is
argued, is in contradiction with the "paramount consideration" defined by
Article 101, [p 68]paragraph 3, of the Charter. The Court does not however
think that this is a correct analysis of the Tribunal's reasoning. The
passages quoted in paragraph 84 were, as already noted, part of a section of
the Tribunal's Judgement (paras. VIII-XIII) dealing with the Applicant's
argument that "a new contractual relationship could have been assumed to
have been created between him and the Respondent" subsequently to the events
of 10 February 1983. The Tribunal was being asked to interpret the action
taken or not taken by the administration at this time as indicating the
existence of such a new tacit agreement. It was not at this stage of its
Judgement contemplating the question of "reasonable consideration": this is
perfectly clear from the two paragraphs (paras. XIII and XIV) immediately
following that in which reference is made to the Fischman case. Paragraph
XIII contains the following conclusion:
"In view of the foregoing, the Tribunal concludes that... no tacit agreement
existed between the Applicant and the Respondent between 10 February 1983
and 26 December 1983 changing the character of their relationship",
and paragraph XIV reads as follows:
"With these conclusions in mind the Tribunal considered the Applicant's plea
that he was entitled to, but was denied, the right to receive 'every
reasonable consideration' in terms of paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982."
The latter plea is the subject of paragraphs XIV to XIX of the Judgement.
The Court considers that the words "With these conclusions in mind" cannot
be read as importing into the discussion of the question of reasonable
consideration the whole argument of the impact of change of nationality on
"suitability". If it had been the view of the Tribunal that the "essential
guidance" referred to in the Fischman decision was determinative of the
question of reasonable consideration, it would merely have had to say so in
paragraph XIV of its Judgement, and proceed no further.
*
91. There remains one further argument to be examined in connection with the
suggestion that the Tribunal committed an error of law relating to the
provisions of Article 101, paragraph 3, of the Charter. The Tribunal itself
in its Judgement saw no need to refer to that Article, but it was referred
to by Vice-President Kean in his dissenting opinion. He was discussing the
statement in the letter of 21 December 1983 addressed to the Applicant
(quoted in paragraph 14 above) that
[p 69]
"At the time your present appointment was made your Government agreed to
release you for service under a one-year contract, the Organization agreed
so to limit the duration of your United Nations service, and you yourself
were aware of that arrangement which, therefore, cannot give you any
expectancy of renewal without the involvement of all the parties originally
concerned."
Mr. Kean's comment on this aspect of the case was as follows:
"In the Applicant's case, there was in the circumstances no possibility,
and no desire on the part of the Government or of the Applicant, that he
should rejoin the service of that Government, from which he had recently
resigned. The only effect, therefore, of a sup-posed preclusive agreement
(expressed or implied) would have been to prevent the Applicant from being
employed, then or at any future time, by the United Nations, however
valuable or necessary his services might be. It cannot be believed that the
Respondent would ever have been a party to so unreasonable an agreement,
bearing in mind the provision of Article 101.3 of the Charter of the United
Nations that 'the paramount consideration in the employment of the staff . .
. shall be the necessity of securing the highest standards of efficiency,
competence, and integrity'. (Emphasis added.)"
Thus Mr. Kean's finding was that such an agreement did not exist; but it
appears that if such an agreement had existed it would, in his view at
least, have been contrary to Article 101, paragraph 3, of the Charter.
92. If therefore the Tribunal relied on the agreement of the Organization
"to limit the duration of [the] United Nations service" of the Applicant, as
a basis for finding that he was ineligible for a career appointment, and
not entitled to "every reasonable consideration" with such appointment in
view, then it would be necessary to consider whether this constituted an
error on a question of law relating to the provisions of Article 101,
paragraph 3, of the Charter. It does not however appear to the Court that
such was the reasoning of the Tribunal. It noted that
"In his letter of 21 December 1983 addressed to the Applicant, the
Respondent concluded that, since the involvement of all parties concerned
was necessary for the renewal of the Applicant's appointment, such renewal
was impossible in the circumstances" (para. IV),
and observed that this accorded with the Tribunal's own jurisprudence on
secondment. The conclusion it based on this was however merely that the
Applicant had not established "that he had a legal expectancy of any type of
further appointment" (para. VI). It did not find that secondment barred him
from "reasonable consideration" under resolution 37/126; on the [p 70]
contrary, as emphasized earlier in this opinion, it found that such
consideration was given. Accordingly, whether Mr. Kean's assessment of the
effect of Article 101, paragraph 3, of the Charter be correct or not, there
was no need for the Tribunal to express a view on the matter, and it did not
do so. Therefore, in this respect the Tribunal cannot have committed an
error of law relating to that provision of the Charter.
**
93. The Applicant next invokes Article 8 of the Charter as being a provision
by reference to which the Tribunal committed an error on a question of law.
That Article provides:
"The United Nations shall place no restrictions on the eligibility of men
and women to participate in any capacity and under conditions of equality in
its principal and subsidiary organs."
The Article is generally understood to prohibit any discrimination on the
basis of sex, a question of no relevance whatever in the present
proceedings. The Applicant however propounds the novel view that "the
Article is framed so as to have broader application" and that it prohibits
"any restriction on the eligibility of any person to participate in any
organ of the United Nations under conditions of equality". Whatever merit,
if any, this contention may have, the Court is not called upon to deal with
it, for two reasons. In the first place, the point was not taken before the
Tribunal. While the Tribunal might be guilty of an error of law in relation
to the plain meaning of a provision of the Charter, even if that provision
were not pleaded before it, it cannot be criticized for failing to foresee
and deal with a novel interpretation of the Charter which was never brought
to its attention. Secondly, in any event, the Applicant's contention proves
to be based, once again, on the view that the Secretary-General had
classified him as ineligible for any further employment, and thus did not
give reasonable consideration to his case. He argues that "What Article 8
prohibits is any restriction on eligibility to serve. This does not prohibit
the consideration of other factors in any particular employment decision".
Nor does the Applicant "challenge the Secretary-General's discretionary
powers of appointment". Since the Tribunal found that there had been no
exclusion of eligibility, but simply a decision, after reasonable
consideration, not to offer appointment, Article 8, even in the wide
interpretation contended for by the Applicant, has no relevance whatever.
**
94. Finally, the Applicant asserts that the Tribunal erred on a question of
law relating to Article 2, paragraph 1, of the Charter, namely: "The
Organization is based on the principle of the sovereign equality of all its
Members", coupled with Article 100, paragraph 2:
"Each Member of the United Nations undertakes to respect the exclusively
international character of the responsibilities of the Secretary-General and
the staff and not to seek to influence them in the discharge of their
responsibilities."
The Applicant concedes that the Tribunal was not asked to adjudicate the
policies of any individual government, and had no competence to do so, but
contends that it was asked to adjudicate the obligations of the
Secretary-General under the Charter and the Staff Rules. However he argues
that
"If the policies of an individual government conflict with the obligations
of the Secretary-General to treat all staff members equally, to give
paramount consideration to the principle of merit, to neither seek nor
receive instructions from any outside authority, the Secretary-General
must, in the words of [the ILO Administrative Tribunal in the case of]
Rosescu, safeguard the interests of the organization and give them priority
over others."
95. It is however by no means clear what the decision of the Tribunal ought,
according to the Applicant, to have been in order to respect these
provisions of the Charter. As noted in paragraph 76 above, the Applicant
does not allege that in refusing him further employment, the
Secretary-General was merely carrying out the instructions of a government,
or that the Secretary-General is precluded from taking into consideration
formal representations made to him by member States. The complaint here
examined thus appears to be that a certain government brought pressure to
bear on the Secretary-General of a kind which contravened Article 100,
paragraph 2, of the Charter. If the Tribunal had considered that this was
the case, it could either have found that the Secretary-General bowed to
that pressure, or that he did not. If it found that he did not, there was no
non-observance of the Applicant's contract of employment or his terms of
appointment, within the meaning of Article 2 of the Tribunal's Statute. In
that event, even if there had been evidence (which there was not) that a
member State had behaved in violation of Article 100, paragraph 2, of the
Charter, the Tribunal would not have been justified in making any finding in
that respect, and could not therefore be criticized for not doing so. If it
had found that the Secretary-General did bow to pressure, he could have been
in breach of Article 100, paragraph 1, of the Charter, already discussed
above. In fact, however, the Tribunal expressly found that
“there has been no allegation, and far less any evidence, that the Re-[p
72]spondent. . . had in any manner let the wishes of a Member State prevail
over the interests of the United Nations and thus disregarded his duties
under Article 100, paragraph 1, of the Charter" (para. XIX).
The Court can therefore see no possibility of an error of law by the
Tribunal relating to Articles 2 and 100, paragraph 2, of the Charter.
*
96. In respect of the second question addressed to it by the Committee in
this case, the Court concludes that the Tribunal, in its Judgement No. 333,
did not err on a question of law relating to the provisions of the Charter.
The reply to that question also must therefore be in the negative.
***
97. For these reasons,
The Court,
A. Unanimously,
Decides to comply with the request for an advisory opinion;
B. Is of the opinion:
(1) with regard to Question 1,
unanimously,
That the United Nations Administrative Tribunal, in its Judgement No. 333 of
8 June 1984 (AT/DEC/333), did not fail to exercise jurisdiction vested in
it by not responding to the question whether a legal impediment existed to
the further employment in the United Nations of the Applicant after the
expiry of his fixed-term contract on 26 December 1983;
(2) with regard to Question 2,
by eleven votes to three,
That the United Nations Administrative Tribunal, in the same Judgement No.
333, did not err on any question of law relating to the provisions of the
Charter of the United Nations.
In favour: President Nagendra Singh; Vice-President Mbaye; Judges Lachs,
Ruda, Elias, Oda, Ago, Sette-Camara, Bedjaoui, Ni and Tarassov;
Against: Judges Schwebel, Sir Robert Jennings and Evensen.[p 73]
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-seventh day of May, one thousand nine
hundred and eighty-seven, in two copies, one of which will be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the United Nations.
(Signed) Nagendra Singh,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Lachs appends a declaration to the Advisory Opinion of the Court.
Judges Elias, Oda and Ago append separate opinions to the Advisory Opinion
of the Court.
Judges Schwebel, Sir Robert Jennings and Evensen append dissenting opinions
to the Advisory Opinion of the Court.
(Initialled) N.S.
(Initialled) E.V.O.
[p 74]
Declaration of judge Lachs
The present case provides me with an occasion to return to the issue which I
raised in the declaration which, as President of this Court, I appended to
the Advisory Opinion of 12 July 1973 on the Application for Review of
Judgement No. 158 of the United Nations Administrative Tribunal (I.C J.
Reports 1973, p. 214).
Fourteen years ago I expressed reservations concerning the existing
machinery for the control of the administrative functions within the
Secretariat of the United Nations. In one observation, I pointed out that
the proceedings were far from satisfactory and that the choice did not "lie
between judicial control of the kind exemplified in the present proceedings
and no judicial control at all". I maintained that the "choice ought surely
to lie between the existing machinery of control and one which would be free
from difficulty and more effective" and added "I see no compelling reason,
either in fact or in law, why an improved procedure could not be envisaged".
My other observation was of a different character, but also concerned the
machinery of reviewing administrative decisions. I noted:
"the discrepancy between the two systems of review: one established by
Article XII of the Statute of the ILO Administrative Tribunal and the other
by Article 11 of that of the United Nations Administrative Tribunal. Each of
them [I continued] has been accepted by a number of organizations, mainly
specialized agencies; and in the light of co-ordination which should be
manifest between these organizations, belonging as most of them do to the
United Nations family, it is regrettable that divergences should exist in
the nature of the protection afforded to their staff members. There can be
little doubt that, in the interest of the administrations concerned, the
staff members and the organizations themselves, the procedures in question
should be uniform." (Ibid.)
I was gratified to note that these observations did not remain without
effect. Together with suggestions from other quarters, they were followed up
by the General Assembly of the United Nations and the International Civil
Service Commission, and eventually, on 19 December 1978, the General
Assembly requested:
"the Secretary-General and his colleagues on the Administrative Committee on
Co-ordination to study the feasibility of establishing a single
administrative tribunal for the entire common system and to report to the
General Assembly at the thirty-fourth session" (res. 33/119, sec. I, para.
2).
[p 75]
The report produced in response by the Administrative Committee on
Co-ordination advised against immediate steps to merge the UNAT and the
ILOAT but recommended the pursuit of harmonization. The General Assembly
consequently requested further action along that line while maintaining the
final aim of establishing a single tribunal. Consultations with legal
advisers of international oganizations followed and a special consultant
produced a study on the subject.
It would be tedious to rehearse all the intervening stages whereby the
Secretariat of the United Nations and the legal advisers of organizations in
the common system were drawn into detailed study of the problem, but at
length, after the submission of further reports and further urgings from the
Assembly, a set of proposals, prepared by the Secretariat, was submitted to
the thirty-ninth session of the General Assembly, which deferred their
consideration to the fortieth on the recommendation of the Fifth Committee.
Basically these proposals were concerned with the harmonization of the
Statutes, rules and practices of the two Tribunals. They thus represent a
definite step forward towards the goal I envisaged, i.e., finally, the
creation of a unified tribunal for organizations constituting members of
the United Nations family.
However, the General Assembly, at its fortieth session, decided (dec.
40/465) on a second postponement of its renewed consideration of the report
of the Secretary-General on the "feasibility of establishing a single
administrative tribunal" (cf. report A/40/471 of 23 July 1985, previously
circulated as A/C.5/39/7 and Corr.l). Thus a definite decision has still to
be reached. The reform undertaken remains at the project stage, and no
improvement has in fact yet materialized. Without ignoring the special
difficulties which beset the Assembly in 1986 and by which it is still
beset, I sincerely hope that it will before long bring the concrete
decisions which will indicate a real advance towards the goal.
I welcome these developments, not only in themselves but because
observations made by a Member of the International Court of Justice have
been taken up by the United Nations General Assembly with a view to enacting
some legislative measures in their respect. This indicates that, in its
functioning, the principal judicial organ of the United Nations may not only
decide contentious issues or give advisory opinions, but also contribute in
practical terms to the improvement or operation of the law within the United
Nations system.
(Signed) Manfred Lachs.
[p 76]
Separate opinion of judge Elias
I agree with the majority Advisory Opinion in answering in the negative the
two questions put to the Court but I wish to add some three or four points
of difference of emphasis and interpretation on a number of important
issues raised in dealing with the answers.
It seems that the Court has now reached a stage at which it should bring to
the attention of the General Assembly and of the United Nations
Organization as a whole the need to reconsider the scheme of referring to
this Court cases from the Administrative Tribunal for review in accordance
with the present procedure established in 1955.
The Statute of the United Nations Administrative Tribunal was adopted by the
General Assembly on 24 November 1949, amended on 9 December 1953 and further
amended on 8 November 1955; it established the Tribunal with competence "to
hear and pass judgement upon applications alleging non-observance of
contracts of employment of staff members of the Secretariat of the United
Nations or of the terms of appointment of such staff members". Article 3 of
the Statute provides that it should consist of seven members, no two of whom
may be nationals of the same State and that the quorum of three must sit in
any particular case. There is no stipulation about the qualifications of
members, who are appointed by the General Assembly for three years; for
instance, they are not required to have legal qualifications. Article 11 of
the Statute is crucial; paragraph 1 stipulates that if a member State, the
Secretary-General or the person in respect of whom a judgement has been
rendered by the Tribunal, or the successor to such a person's rights on his
death, objects to the judgement on the ground (i) that the Tribunal has
exceeded its jurisdiction or competence or (ii) that the Tribunal has failed
to exercise jurisdiction vested in it, or (iii) that it has erred on a
question of law relating to the provisions of the Charter of the United
Nations, or (iv) has committed a fundamental error in procedure which has
occasioned a failure of justice, any one of these three may within 30 days
make a written application to the Committee established under paragraph 4 of
the same article asking the Committee, called the Committee on Applications
for Review of Administrative Tribunal Judgements, to request an advisory
opinion of the International Court of Justice on the matter. The Committee
is required to decide whether or not there is a substantial basis for the
application to request an advisory opinion of the Court, in which case the
Secretary-General must arrange to transmit the views of the person concerned
to the Court. In accordance with Article 11, paragraph 4, of [p 77]the
Statute of the Tribunal the Committee is required to meet at the United
Nations Headquarters, and has the power to establish its own rules. If no
application to the Committee is made or if no decision to request an
advisory opinion has been taken by the Committee, the Tribunal's decision
would be final. Whenever, however, a request has been made for an advisory
opinion the Secretary-General must either give effect to the opinion of the
Court or request the Tribunal to convene specially in order to confirm its
original judgement, or give a new judgement, in conformity with the opinion
of the Court.
In Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal (I.C.J. Reports 1954, p. 47), the Court held that
the Tribunal was an independent and truly judicial body pronouncing final
judgements without appeal within the limited field of its functions and not
merely an advisory or subordinate organ, and that the Court must give an
advisory opinion within the limits set in the case as asked by the
Committee. In Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal where the staff member applied for the
review of the Tribunal's ruling to the Committee on Applications for Review
requesting the Court to give an advisory opinion on two questions, the Court
decided to comply with the Committee's request and took the view that the
Tribunal had not failed to exercise the jurisdiction vested in it and had
not committed a fundamental error in procedure which had occasioned a
failure of justice. The Court observed that
"although [it] does not consider the review procedure provided by Article 11
as free from difficulty, it has no doubt that, in the circumstances of that
case, it should comply with the request by the Committee on Applications"
(I.C.J. Reports 1973, p. 183, para. 40);
the Committee is in fact called upon to discharge a duty normally given to a
legal body (ibid., p. 176, para. 25). Similarly, in Application for Review
of Judgement No. 273 of the United Nations Administrative Tribunal, the
United States Government addressed an application for review of the
judgement of the Tribunal to the Committee on Applications for Review of
Administrative Tribunal Judgements, and the Committee decided to request an
advisory opinion of the Court on the correctness of the decision in
question. The Court, after pointing out that a number of pro-cedural and
substantive irregularities had been committed, decided nevertheless to
comply with the Committee's request, which was reformulated by the Court
and interpreted as really seeking a determination as to whether the
Administrative Tribunal had erred on a question of law relating to
provisions of the United Nations Charter or had exceeded its jurisdiction or
competence. The Court pointed out that its proper role was not to retry the
case already dealt with by the Tribunal, and that it need not involve itself
in the question of the proper interpretation of United Nations Staff
Regulations and Rules further than was strictly[p 78] necessary in order to
judge whether the interpretation adopted by the Tribunal had been in
contradiction with the provisions of the Charter. The Court finally found
that the Tribunal had not erred on a question of law relating to the
provisions of the Charter, and also considered that the Tribunal's
jurisdiction included the scope of Staff Regulations and Rules, and that it
had not exceeded its jurisdiction or competence.
We may also recall that Article 65, paragraph 1, of the Statute of the Court
provides that it may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request. It has been said on
many occasions by the Court that, in giving its reply to a request for an
advisory opinion, the Court is, by doing so, participating in the activities
of the United Nations and that, in principle, the Court should not refuse a
request; it is entirely a matter of discretion for it whether or not to
reply to a request.
It is clear that the Court may sometimes find itself in a strait- jacket if
it follows closely the limit set in Article 11; nevertheless, to allow the
Court to raise any legal issue analogous, but not strictly relevant, to the
ones specifically asked of it by the Committee might not always give
satisfaction. A flexible procedure is, therefore, called for which enables
the Court to raise all legal issues considered by it to be relevant and
necessary for the proper disposal of the problem at issue, so long as it
satisfies the requirement of the judicial process.
A sensible way out will be for the preliminary problems arising in a given
case to be dealt with first by a tribunal of first instance and then for
legal issues to be raised later on appeal to the Administrative Tribunal in
the normal system of adjudication, which the latter would be obliged to deal
with as a court of appeal. The whole question would then turn on the
judicial rather than on the present almost non-judicial manner of the
Committee on Applications for Review. The political overtone of the
Committee’s deliberations would be minimized, if not completely elimi-nated,
because the present composition of the Committee does not lend itself to
strictly legal adjudications of issues. At present, the framing of questions
to be put to the Court is often tinged with meta-legal conceptions of
particular State Members of the Committee, which are often reflected in the
manner of the categorization of the questions to be asked of the Court. The
result has often been to make the question in the end either irrelevant or
patently obscure. The Court has accordingly been put to the trouble of
having to find out what the Committee did in fact mean by the questions as
put to it, thereby wasting judges’ time and effort, before coming round to
the real issues involved in a particular case. The new procedure of using a
tribunal of first instance would entail a recast of the present Statute of
the Administrative Tribunal, inter alia, to require its members to possess
legal qualifications. The present Article 11 would in particular need to be
modified. The body operating at this level should do so as a court. For the
purpose the General Assembly might establish [p 79] a study group to submit
necessary changes, which must allow appeals to the Administrative Tribunal,
the functions of which might have to be suitably modified.
A second aspect regarding the powers of the Court in dealing with a request
for an advisory opinion is that relating to its power in proper cases to
determine the real meaning of the question it has to answer. In
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
the Court pointed out that
"if it is to remain faithful to the requirements of its judicial character
in the exercise of its advisory jurisdiction, it must ascertain what are the
legal questions really in issue in questions formulated in a request"
(I.C.J. Reports 1980, p. 88, para. 35).
In that case, the Court found it necessary to reformulate the question
submitted for advisory opinion but insisted that such reformulation must
remain within any limit set on the powers of the requesting body since the
Court could not, by reformulating the question put, respond to a question
which that body could not have submitted if, for example, it was not on a
legal question "arising within the scope of the activities of the requesting
body". It will be recalled that, in Application for Review of Judgement No.
273 of the United Nations Administrative Tribunal, the Court in
reformulating the question put by the Committee, emphasized that its
"jurisdiction under Article 11 of the Tribunal's Statute is limited to the
four specific grounds of objection there specified" and pointed to its
previous dictum (in Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 184, para.
41) that
"Consequently, the Committee is authorized to request, and the Court to
give, an advisory opinion only on legal questions which may properly be
considered as falling within the terms of one or more of those four
'grounds'".
Where necessary, the Court must of course have regard to the intentions of
the requesting body as they emerge from the records leading up to the
decision to request the opinion in question. This was done by the Court
itself in the Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt (I.C.J. Reports 1980, pp. 85-88, paras. 28-34). In the present
case, the Court decided, after due consideration, that it was not open to it
to enter into all four of the grounds mentioned in Article 11 of the
Statute, by reformulating the question put to it or otherwise, because it
could not be said that the Committee intended to ask the Court to give its
opinion on such points for the proper determination of the case. The Court
has emphasized, as previously noted above in this separate opinion, that its
proper role in review proceedings is not to retry [p 80] the case "and to
attempt to substitute its own opinion on the merits for that of the
Tribunal", but has nevertheless said that it
"does not mean that in an appropriate case, where the judgement has been
challenged on the ground of an error on a question of law relating to the
provisions of the Charter, the Court may not be called upon to review the
actual substance of the decision" (I.C.J. Reports 1973, p. 188, para. 48).
In its Advisory Opinion on the Application for Review of Judgement No. 2 73
of the United Nations Administrative Tribunal (I.C.J. Reports 1982, p. 355,
para. 57), the Court reiterated that the answer to the question must depend
"not only upon the terms of Article 11, but also upon several other factors
including, first of all, the Court's Statute, the case-law of the Court, the
general requirements for the exercise of the judicial function" as well as
"upon the terms of the particular question asked of the Court by the
Committee". In this last passage, the Court made it abundantly clear that
the several qualifications surrounding the application of Article 11 of the
Statute for proper judicial purpose are overwhelming. It argues well for the
reform of the Statute as a whole as suggested above in this separate
opinion.
***
Another issue requiring comment in the present Advisory Opinion concerns
the criticism that the Secretary-General has not given "every reasonable
consideration" thought to be necessary to the case of the Applicant before
the decision was taken not to renew his contract. A good deal has been said
in the statements submitted by the United States and by Italy on this issue;
but very careful reflection on what resolution 37/126 of the General
Assembly requires shows that it does not go as far as the critics would
insist upon or suggest. It is absolutely clear that the resolution in
question does not prescribe a particular procedure which the
Secretary-General must follow in order to show that he has in fact given
every consideration to the Applicant. There is no requirement of statute or
other regulation that the Secretary-General should follow a particular
course, nor has that particular course been ignored or deviated from. There
is, however, abundant evidence from more than five letters exchanged on the
subject between the Secretary-General and the Applicant showing that the
Secretary-General told him expressis verbis and almost ad nauseam that the
Applicant's contract would not be renewed or in any way extended beyond the
five-year period. Neither the Applicant nor any one else in the whole war of
words has even suggested that the nonrenewal of the Applicant's employment
has not been made sufficiently clear by the Secretary-General and any of his
officials. We need to ponder over paragraphs 10 to 17 of the present
Advisory Opinion for the bulk of the correspondence dealing with this
matter. One cannot but endorse the Tribunal's conclusion, quoted in
paragraph 37 of the [p 81] Opinion, regarding reasonable consideration
having been given by the Secretary-General to the Applicant's repeated
requests in dealing with the case:
"In the present case, the Respondent had the sole authority to decide what
constituted 'reasonable consideration' and whether the Applicant could be
given a probationary appointment. He apparently decided, in the background
of secondment of the Applicant during the period of one year from 27
December 1982 to 26 December 1983, that the Applicant could not be given a
probationary appointment. He thus exercised his discretion properly, but he
should have stated explicitly before 26 December 1983 that he had given
'every reasonable consideration' to the Applicant's career appointment."
(Para. XVIII of the Judgement of the Administrative Tribunal.)
Nothing is gained by the further argument as to whether the
Secretary-General or one of his officials has by necessary implication
claimed that the non-renewal of the appointment has been based on a "legal
impediment". Even the further argument that the Secretary-General had been
induced to reach his decision not to renew by the intervention, direct or
otherwise, of the Soviet Union, has been shown to be utterly insupportable
and groundless. There is no shred of evidence to support this suspicion on
the part of the critics.
It is strange that the whole argument about the existence of any legal
impediment has been erected as a legal dogma which somehow has the force of
law not yet specified or even hinted at. All we have is the asseveration
that the Secretary-General must not, even through any of his officials, have
been led to refuse the Applicant the renewal of his employment by the
supposed existence of a legal impediment. Whether or not this has operated
on the mind of the Secretary-General when he made it clear oftentimes that
he would not in any case renew the Applicant's contract, does not affect the
question. He told the Applicant in no uncertain terms that he had given
careful consideration to his case and that his employment had come to an
end.
***
A third question is the sterile argument about whether the Applicant was on
a secondment from the Soviet Government and about what indeed constitutes a
"secondment". What was beyond a shadow of doubt was that the Applicant came
as a government servant from the Soviet Union, and not as a private
individual joining the United Nations by his own effort or act; and the
extensions granted were undertaken by the Secretary-General with reference
to the Soviet Government up to and including the termi-[p 82]nation of his
employment with the United Nations. It seems clear that the issue of
secondment, which has been over-argued in the statements of the critics,
sounds like an argument of semantics, like the contention that to give
"reasonable consideration" must mean only calling the Applicant and telling
him in precise words that his appointment would not be renewed.
***
A fourth contention is that the Administrative Tribunal erred in law for not
substituting its own discretion for that of the Secretary-General when his
decision was taken that the Applicant's employment would not be renewed. In
this matter of the exercise of discretion vested in the Secretary-General
there can be no doubt at all that no one else except the Secretary-General
has indubitable rights to take the final decision whether or not to employ
the Applicant. There can be no doubt that neither this Court nor the
Administrative Tribunal can substitute its own discretion in this matter for
that of the Secretary-General. We may consider that the discretion should
have been exercised in a particular way different from that adopted by the
Secretary-General. There is no doubt that he has the prerogative to do it in
his own way. There is no rule of law for him to follow apart from the one
consideration of justice and fair play which the situation requires, and
which no one has suggested to be unfair. The criticism therefore is not
judicial ; it is only a matter of opinion.
One can hardly escape the feeling that the criticism that the
Administrative Tribunal has too easily accepted the decision of the
Secretary-General in approving the exercise of his discretion seems to imply
that the Tribunal, and even this Court, should substitute its own discretion
for that of the Secretary-General in concluding that the Applicant's
employment should not be renewed. This would of course amount to requiring
the Court to go into the merits of the entire case under the guise of the
review asked of it under the present Statute. As we have pointed out earlier
in this opinion the Court should not do that. In Application for Review of
Judgement No. 273 of the United Nations Administrative Tribunal (I.C.J.
Reports 1982, p. 356, para. 58), the Court warns against the procedure when
it said that its proper role in the review proceedings is not to retry the
case or "to attempt to substitute its own opinion on the merits for that of
the Tribunal".
The Court, therefore, has no other choice than to affirm the judgement of
the Administrative Tribunal and to answer the two questions put to it by the
Committee in the negative.
(Signed) T. O. Elias.
[p 83]
Separate opinion of judge Oda
Table of Contents
Paragraphs
Opening Remarks 1
I. Concerning Question 1
A. Issue of legal impediment 2-7
B. Ambivalent provenance of the drafting of the question in the Committee on
Applications 8-13
II. Concerning Question 2
A. The Court as an appellate court to the United Nations Administrative
Tribunal in certain specific circumstances 14-18
B. UNAT Judgement No. 333 19-24
C. Legal expectancy for further service and reasonable consideration for a
career appointment 25-29
D. Latitude for the Secretary-General's exercise of discretion 30-39
[p 84]
1. I concur in principle with the operative paragraph of the Court's
decision. Nevertheless, I feel bound to express my views, since they to some
extent differ from the reasonings which have led to the formation of the
Court's Opinion. In particular, I am of the opinion that question 1 was
erroneously based and, with regard to question 2, while fully agreeing with
B (2) of the operative paragraph, do so for different reasons than those
advanced by the Opinion.
I. Concerning Question 1
A. Issue of Legal Impediment
2. I consider that the first question put to the Court by the
Secretary-General, on the basis of the decision of the Committee on
Applications for Review of Administrative Tribunal Judgements, was
erroneously based. The first question reads:
"In its Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the United
Nations Administrative Tribunal fail to exercise jurisdiction vested in it
by not responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 19831" (Emphasis added.)
3. In the case of an application for review submitted by a staff member, the
Committee on Applications may refer matters to the Court only in the event
that an allegation of non-observance by the Secretary-General of his or her
contract of employment or of the terms of his or her appointment had been
rejected by the United Nations Administrative Tribunal (UNAT), as in the
present case. Failure by UN AT to exercise jurisdiction vested in it would
certainly be a basis on which an advisory opinion of the Court might be
sought, although it may not be easy to envisage a basis for any claim that
UNAT has failed to exercise jurisdiction when it has — correctly or
incorrectly (and that is a separate question) — delivered a judgement on the
merits. It is certainly a fact in this case that UNAT did not refer to the
question, as such, of the existence or non-existence of a legal impediment
to Mr. Yakimetz's further employment. However, as a matter of a preliminary
nature, the question should be asked why, in the view of the Committee on
Applications, the lack of any direct reference to that question in Judgement
No. 333 could have been regarded as affording a basis for asking whether
the Tribunal had failed to exercise jurisdiction.
4. Mr. Yakimetz, the Applicant, asked UNAT in his pleas "to adjudge and
declare that no legal impediment existed to his further United [p 85]
Nations employment after the expiry of his contract on 26 December 1983",
but in fact Mr. Yakimetz did not, in his pleadings, substantiate his
assumption that the Secretary-General came to the conclusion of the
nonrenewal of the contract or the refusal of a career appointment for the
reason that there was a legal impediment to further employment. The
Secretary-General, the Respondent, barely mentioned the issue of legal
impediment in the Respondent's Answer, apparently because the
Secretary-General did not consider that the issue of legal impediment could
have been a cause of the denial of the Applicant's further employment. Nor
did UNAT make an issue of this question as such, apparently because in its
view this question could only have been meaningful if a conclusion of a
legal impediment had been a contributory cause of the Secretary-General's
decision neither to renew the contract nor to give a career appointment.
5. Why then should UNAT have been required to respond to the question
whether there was any legal impediment to Mr. Yakimetz's further employment
— a question seemingly irrelevant to the Secretary-General's decision not
to continue Mr. Yakimetz's employment? Did the Committee believe that, when
refusing to extend Mr. Yakimetz's previous contract or to give him a career
appointment, the Secretary-General might have failed to observe the
requirements of that contract because (i) he did not make it clear that
there really was a legal impediment or (ii) he did not explicitly mention
that there was not such an impediment, and did it further believe that UNAT
should have committed itself to one of these alternative thoughts? The fact
that UNAT did not think it necessary to respond to the question whether any
legal impediment to the further employment of Mr. Yakimetz did or did not
exist is irrelevant to the exercise of its jurisdiction. It appears that
the Committee put the first question to the Court simply upon a mere
presumption that the Applicant was entitled to a specific ruling on each and
every submission he had made, and that the absence of such a ruling on any
one head would constitute a failure to exercise jurisdiction even if in the
Tribunal's view the point raised was inessential to its findings. In this
connection, it should be noted that a contention presented by the
Secretary-General before UNAT and the Committee on Applications, to the
effect that the existence or non-existence of legal impediment was quite
irrelevant to his determination not to continue Mr. Yakimetz's employment,
seems to have been completely ignored by the Committee.
6. Furthermore, UNAT did in fact deal in its Judgement with one aspect of
legal impediment, namely the issue whether the terms of Mr. Yakimetz's
contract might have barred Mr. Yakimetz from transferring to a career
appointment following the expiry of his contract. Its handling of this issue
led to the conclusion that Mr. Yakimetz could not have legally expected a
career appointment. Whether UNAT was right or not in thus supporting the
Secretary-General's analysis to the [p 86] effect that Mr. Yakimetz did not
have a legal expectation of a career appointment is an issue to be
considered under the second question put to the Court for its advisory
opinion.
7. Even if it be granted that the question whether a legal impediment
existed or not was not referred to, as such, in UNAT's Judgement, this
cannot be sufficient reason for entertaining the conclusion that UNAT might
thus have failed to exercise jurisdiction. A fortiori, there is no cause to
argue that the silence of UNAT upon the question of legal impediment
justified invocation of the ground that there was any failure on the part of
UNAT to exercise jurisdiction. The first question itself was thus
erroneously based.
B. Ambivalent Provenance of the Drafting of the Question in the Committee on
Applications
8. It seems pertinent to examine the way in which the first question was
drafted by the Committee on Applications. Mr. Yakimetz, the Applicant, urged
the Committee on Applications on 21 June 1984 to request an advisory
opinion of the International Court of Justice on the following four grounds
which, more or less, simply repeated all the grounds on which objections to
a judgement of the Administrative Tribunal can be made under the Statute of
the Tribunal (UNAT Statute, Art. 11 (1)):
"I. The Tribunal has exceeded its jurisdiction and competence.
II. The Tribunal has failed to exercise jurisdiction vested in it.
III. The Majority Judgement of the Tribunal errs on questions of law
relating to provisions of the Charter.
IV. The Tribunal has committed fundamental errors of procedure which have
resulted in a miscarriage of justice." (A/AC.86/R.117.)
The Committee, which had held three closed meetings to consider Mr.
Yakimetz's application on 21,22 and 23 August 1984, found, by a vote of none
to 25 with 3 abstentions and by a vote of 11 to 13 with 4 abstentions, that
there was not a substantial basis for the application on ground I and ground
IV, respectively. On the other hand, the Committee decided, each time by the
same vote of 16 to 9 with 3 abstentions, that there was a substantial basis
for the application on ground II and ground III (A/AC.86/30). In other
words, the Committee favoured pursuing the question whether Judgement No.
333 should be reviewed on the grounds that "the Administrative Tribunal had
failed to exercise jurisdiction vested in it . . ." (ibid., para. 10), and
that "the Tribunal had erred on a question of Law relating to the provisions
of the Charter of the United Nations ..." (ibid., para. 11).
9. The discussions held in the closed meetings of the Committee on
Applications which led to the Committee's decision formulating the text of
the two questions to be addressed to the Court have not been disclosed. It
is known from the Report of the Committee (A/AC.86/30), however, [p 87]
that, in the light of the voting on the various grounds, the Committee
considered the formulation of the questions on which it would request an
advisory opinion of the Court, and an informal draft proposal, submitted by
the delegation of the United Kingdom, was brought by the Chairman to the
attention of the members of the Committee. The questions prepared in this
draft proposal read:
"(1) In its Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the United
Nations Administrative Tribunal fail to exercise jurisdiction vested in it
or commit a fundamental error in procedure which has occasioned a failure of
justice by not responding to the question whether a legal impediment existed
to the further employment in the United Nations of the Applicant after the
expiry of his contract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judgement
No. 333, err on questions of law relating to provisions of the Charter, in
particular Articles 100 and 1011" (A/AC.86/R.120.) (Emphasis added.)
The parts of the sentences emphasized were additional to the texts
previously voted and decided by the Committee. The draft proposal,
referring to the commitment by the Tribunal of "a fundamental error in
procedure which has occasioned a failure of justice", attempted to
reintroduce ground IV from Mr. Yakimetz's original Application, which ground
had previously been rejected by the Committee. It also added to ground II of
the Application the words "by not responding to the question whether a legal
impediment existed to the further employment...".
10. The final text, adopted by the Committee on Applications by a vote of 16
to 9 with one abstention, did not include the reference to ground IV (which
had already once been rejected) but included instead a reference to a legal
impediment which was added in the United Kingdom's informal draft proposal.
It may be noted that the phrase in the first question (ground II) (as quoted
in para. 2 above) on which the Court is requested to give opinions, reading
"by not responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 1983 ?" — which itself neither appeared in
the text of Mr. Yakimetz's Application to the Committee nor was included in
the original decision of the Committee (see the respective quotations in
para. 8 above) — had been added as a result of the informal draft proposal
by the United Kingdom's delegate. It is also unclear whether, in that
proposal, the phrase in question was intended to qualify failure of
jurisdiction as well as the commission of a fundamental error in procedure.
11. At the public meeting of the Committee on Applications held on 28 August
1984, several days after the decision was made, the Committee's decision was
formally announced by the Chairman and on that occasion some delegates made
statements for the record pursuant to Article VII (4) [p 88] of the
Committee's Rules of Procedure. Among those registering opposi-tion to Mr.
Yakimetz's Application were the delegates from Bhutan, USSR and
Czechoslovakia, while the delegates from France and the United States were
the only two delegates who expressed support for the Application.
12. The delegate from France stated:
"[M]y delegation agrees with the majority of the Committee that Mr.
Yakimetz's application is based on grounds that are valid under article 11
(2) of the Statute of the Administrative Tribunal in claiming that the
Tribunal did not answer the question of whether that was a legal impediment
to the renewal of the Applicant's employment at the United Nations after the
expiry of his contract on 26 December 1983. However, my delegation is
inclined to believe that this complaint is grounded not on any failure of
the Tribunal to exercise its jurisdiction, but rather on its having
committed a fundamental procedual error that gave rise to a failure of
justice, under article 11 (1) of the Statute. We regret that, as had been
suggested, the Committee did not agree to accept either of these grounds in
support of the application before the Tribunal." (A/AC.86/XXIV/PV.5, p. 6.)
The delegate from France did not substantiate his argument concerning a
legal impediment so as to justify his criticism of the Committee's first
question about whether the Tribunal had failed to exercise jurisdiction. The
delegate from the United States did not appear to expound sufficient
argument in support of the formulation of the first question. His only
analysis of that question was as follows:
"We believe that the question whether there was a legal bar to further
employment is a critical one, one on which the Tribunal erred. It is
separate from the question of whether there was any expectation. The
separate nature of those questions is obvious, and if it were not in and of
itself it would be obvious by the existence of resolution 37/126, which
underlines the distinction. There would be no purpose in that resolution if
that distinction did not exist... To those of us from the common-law
tradition it appears more clearly to be a failure to exercise jurisdiction.
To those from the civil-law tradition the failure apparently amounts more
obviously to a procedural error occasioning a denial of justice. We believe
both perceptions lead to the same conclusion." (Ibid., p. 11.)
He seems to have held the view, like the French representative, that
procedural error could be an issue presented before the Court on the ground
that the Tribunal had failed to state whether there was a legal impediment
to further employment of Mr. Yakimetz. Neither the French delegate nor the
United States delegate suggested that UNAT might have failed to [p 89]
exercise jurisdiction vested in it by reason of the absence of an answer to
the question concerning legal impediment. It may be noted in particular that
the delegates of France and the United States, together with the United
Kingdom delegate, were among those who voted unsuccessfully for ground IV.
13. The ambivalent provenance of the drafting of the first question in the
Committee on Applications may lead us to conclude that the introduction of
the concept of legal impediment in connection with the first question
resulted from inadequate examination of the question on the part of the
Committee.
II. Concerning Question 2
A. The Court as an Appellate Court to the United Nations Administrative
Tribunal in Certain Specific Circumstances
14. If the Court is to give an advisory opinion in this particular case,
only the second question may be relevant, and I quote it:
"Did the United Nations Administrative Tribunal, in the... Judgement No.
333, err on questions of law relating to the provisions of the Charter of
the United Nations ?"
This question arose from the fact that UNAT in its Judgement did not uphold
an allegation by Mr. Yakimetz that the Secretary-General might not have
observed Mr. Yakimetz's "contract[s] of employment... or... the terms of
appointment" (UNAT Statute, Art. 2).
15. As the Statute of UNAT provides that an advisory opinion may be sought
of the Court because of the objection of a staff member to the Tribunal's
judgement on four grounds, including ground III that "the Tribunal . . . has
erred on a question of law relating to the provisions of the Charter of the
United Nations" (Art. 11 (1)), I would suggest that the Court is expected in
this case to function in substance similarly to an appellate court vis-a-vis
UNAT, to review the actual substance of the Secretary-General's decision
and, if necessary, to substitute its own opinion on the merits for that of
UNAT.
16. In fact, when the United Nations General Assembly, under resolution 957
(X), adopted the idea of requesting an advisory opinion on UNAT judgements
by the insertion of Articles 11 and 12 into UNAT Statute, ground III, unlike
the other three grounds mentioned in Article 11 (1), was introduced in order
that UNAT's judgements be subjected to review by this Court as a kind of
appellate court, but only in limited cases in which UNAT could be argued to
have erred on a question of law [p 90] relating to the provisions of the
Charter. I made an extensive survey of this particular ground for justifying
the seeking of advisory opinions of the Court in my separate opinion
attached to the Advisory Opinion in Application for Review of Judgement No.
273 of the United Nations Administrative Tribunal(I.C.J. Reports 1982, pp.
393-397), and I do not need to repeat this survey.
17. In my view, consonant to what I had occasion to indicate in my separate
opinion appended to the 1982 case, the Court, in replying to the second
question (ground III of UNAT Statute, Art. 11 (1)) in the request for an
advisory opinion, is expected to review whether UNAT, by upholding the
Secretary-General's decision, did or did not err on questions of law
relating to the provisions of the United Nations Charter, and thus
inevitably to form in practice a judgment as to whether the
Secretary-General, whose decision was upheld by UNAT, did or did not err on
such a question. I take quite a different view from the present Advisory
Opinion with regard to the functions of the Court in this respect.
18. Quoting the 1973 Opinion in the case concerning an Application for
Review of Judgement No. 158 of the United Nations Administrative Tribunal
and the 1982 Opinion in Application for Review of Judgement No. 273 of the
United Nations Administrative Tribunal, the Court repeatedly emphasizes its
limited role by stating that "the Court's proper role is not to retry the
case" (paras. 27,62 and 89), and it states:
"[The Court] will... not necessarily have to deal with the problems raised
by certain administrative steps taken, or which should have been taken, by
the Secretariat, and which have been the subject of criticism, at the same
time as the Tribunal's Judgement No. 333. Taking into account the limits of
its competence set by the applicable texts, the Court should not express any
view on the correctness or otherwise of any finding of the Tribunal in
Judgement No. 333, unless it is necessary to do so in order to reply to the
questions put to it." (Para. 27.)
Yet it appears to me that the Court in fact admits, for example, in
paragraphs 63 to 66, that it inevitably has to deal with the correctness or
otherwise of the Secretary-General's decision. The Court's Opinion is
unable to avoid stating:
"The decision was that of the Secretary-General; and it was not for the
Tribunal, nor indeed for the Court, to substitute its own appreciation of
the problem for that of the Secretary-General. The Court could only find
that the Tribunal had in this respect 'erred on a question of law relating
to the provisions of the Charter' if it found that the Tribunal had upheld a
decision of the Secretary-General which could not be reconciled with the
relevant article of the Charter. That[p 91]does not appear to the Court to
be the case. The decision of the Secretary-General cannot be said to have
failed to respect the 'paramount' character of the considerations mentioned
in Article 101, paragraph 3 ..." (Para. 82.)
B. UNAT Judgement No. 333
19. The clear fact, as summarized from what the Court's Opinion spells out,
is that Mr. Yakimetz's fixed-term contract on secondment was due to expire
on 26 December 1983, and in spite of Mr. Yakimetz's request for a further
extension of his contract with the United Nations or even better a career
appointment on 25 October 1983, the Secretary-General did not intend, on 23
November 1983, to extend his fixed-term appointment beyond its expiration
date, i.e., 26 December 1983. Mr. Yakimetz, on 13 December 1983, requested
that the administrative decision not to extend his appointment beyond its
expiration be withdrawn and his name forwarded to the appropriate
appointment and promotion body for reasonable consideration for career
appointment. The Secretary-General responded on 21 December 1983 that he had
given careful consideration to the issues but was not in a position to agree
to his request. Whether the decision of the Secretary-General not to extend
Mr. Yakimetz's contract further, and not to offer a career appointment as
Mr. Yakimetz had wished, constituted a non-observance of "a contract of
employment" or "the terms of an appointment (including all pertinent rules
and regulations in force)" on the part of the Secretary-General was a
critical issue before UNAT.
20. In his pleas dated 3 January 1984, the Applicant requested UNAT to
adjudge and declare on three points that:
(i) "C . . . no legal impediment existed to his further United Nations
employment after the expiry of his contract on December 26,1983."
(ii) "D... he had an expectancy of further employment."
(iii) "E... he was illegally denied his right to reasonable consideration
for a career appointment." (Applicant's Statement of Facts and Argument, p.
2.)
Apart from the first point, which as I previously submitted (paras. 4 and 5,
above) appears to be irrelevant as not affecting the decision of the
Secretary-General, the Applicant elaborated the remaining two points as
indicated in the subtitles in the Applicant's Statement of Facts and
Argument:
“ II.The Applicant had a legally and morally justifiable expec-[p92]tancy
of continued employment, and a right to reasonable consideration for a
career appointment."
"III. The Applicant was denied the reasonable consideration for further
employment to which he had a right."
The non-observance by the Secretary-General of the terms of Mr. Yaki-metz's
contract was not at issue, but the Applicant argued that his contract should
have been interpreted in view of the terms of appointment, first, to allow
him to expect continued service with the United Nations and, secondly, to
entitle him to reasonable consideration for a career appointment.
21. In his Respondent's Answer on 14 March 1984 the United Nations
Secretary-General requested UNAT to conclude on the Applicant's pleas, D and
E, respectively, that:
"(d) . . . Applicant had no legal expectancy of further employment;
(e) ... Applicant had no 'right' to favourable consideration for a career
appointment and did, in fact, receive such consideration as was
reasonable..." (Respondent's Answer, p. 13.)
The Secretary-General's position may be summarized in the terms of the
subtitles of the Respondent's Answer:
"I. Applicant has no entitlement, including any legally cognizable
expectancy, as regards continued employment on expiry of his fixed-term
contract."
"A. The fixed-term contract excludes any expectancy."
"B. No circumstances outside the scope of the contract gave rise to legally
cognizable expectations."
"II. The Secretary-General's decision against re-appointment was within his
sole authority under the Charter and the Staff Regulations."
"A. In reaching his decision, the Secretary-General took into account all
the circumstances in the case."
"B. In taking his decision in the case, the Secretary-General acted in the
interest of the Organization."
22. In its Judgement No. 333 of 8 June 1984, UNAT, being of the opinion that
"[i]n this case the legal issues involved are interspersed with political
considerations", made it clear that it could deal only with the legal issues
(AT/DEC/333, p. 11, para. I). The legal issues referred to were analysed as
three in number, and the respective explanations given in the Judgement
which had led the Tribunal to hold that the Applicant's pleas could not be
sustained were as follows:[p 93]
(a) "Whether the Applicant's work with the United Nations in different
periods created a legal expectancy for further service with the United
Nations."
UNAT, while upholding the decision of the Secretary-General, noted that Mr.
Yakimetz's contract had been on secondment from the Government of the USSR
and, referring to Staff Rule 104.12 (b), which provided that a fixed-term
appointment did "not carry any expectancy of renewal or of conversion to any
other type of appointment", stated that:
"[i]t does not appear that the Applicant has produced evidence of
circumstances sufficient to establish that he had a legal expectancy of any
type of further appointment following the end of his fixed-term appointment"
(ibid., p. 12, para. VI).
UNAT expressed the view that "none of the actions [the Applicant] took could
bring about any legal expectancy of renewal of his appointment" (ibid., p.
14, para. XII). The Tribunal considered however that:
"[i]f his fixed-term appointment were not based on secondment he could, in
the jurisprudence of the Tribunal, have in certain circumstances
expectation of one kind or another for an extension, but such a situation
did not arise" (ibid.).
UNAT concluded that:
"during the period of his service with the United Nations the Applicant was
under secondment which ... could not be modified except with the consent of
all three parties and that no tacit agreement existed between the Applicant
and the Respondent between 10 February 1983 and 26 December 1983 changing
the character of their relationship" (ibid., p. 15, para. XIII).
(b) "Whether, and if so to what extent, paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982 which reads
'Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment'
has been carried out."
UNAT, having considered the Applicant's plea that he was entitled to, but
was denied, the right to receive "every reasonable consideration" under
General Assembly resolution 37/126 of 17 December 1982 and referring also to
General Assembly resolution 38/232 of 20 December 1983, stated:[p 94]
"In the present case, the Respondent had the sole authority to decide what
constituted 'reasonable consideration' and whether the Applicant could be
given a probationary appointment. He apparently decided, in the background
of secondment of the Applicant during the period of one year from 27
December 1982 to 26 December 1983, that the Applicant could not be given a
probationary appointment. He thus exercised his discretion properly ..."
(Ibid., p. 17, para. XVIII.)
(c) "The consequences of the application of United Nations rules and
regulations in relation to the United States law on resident status and
citizenship. "
I would suggest that it was imperative for the Court to note that UNAT did
not address this last issue, in its entirety, despite its having itself set
it up and defined it as legal in character. In particular UNAT failed to
deal with the question of the uncertainties of Mr. Yakimetz's personal
status which fell within the discretion of the Secretary-General in his
implementation of the personnel policy. UNAT simply stated that: "Another
consequence of his actions raised the question of his suitability as an
international civil servant." (Ibid., p. 14, para. XII.)
23. In order to examine whether UNAT erred on a question of law relating to
the provisions of the United Nations Charter, it is pertinent for the Court,
as I have already stated in paragraphs 14 to 18 above, to function as an
appellate court and to examine how UNAT viewed the decision of the
Secretary-General in the light of the three legal issues that it had raised
and also to examine whether the Secretary-General himself had erred on
questions of law relating to the provisions of the United Nations Charter.
If he had, and UNAT failed to reprove his mistake, the Tribunal itself would
have become a party to his error.
24. The first question is whether the Secretary-General, in his decision not
to extend the terms of Mr. Yakimetz's contract and not to give him a career
appointment, did or did not comply with "regulations established by the
General Assembly" under which he may appoint the staff of the United Nations
(United Nations Charter, Art. 101 (1)). This certainly is essential to Mr.
Yakimetz's claims to legal expectancy of further service with the United
Nations and to the alleged denial of Mr. Yakimetz's right to reasonable
consideration for a career appointment. The second question is whether the
Secretary-General, in his above-mentioned decision, did or did not give
"paramount consideration" as required in the case of the employment of staff
(United Nations Charter, Art. 101 (3)). This relates to the scope of the
Secretary-General's discretion in the exercise of his competence where
personnel policy is concerned. In spite of its [p 95] hesitation to retry
the case and make a judgement on the correctness or incorrectness of the
Secretary-General's decision, the Court's Opinion in fact gave responses to
these two questions, and I am in general agreement with the conclusions the
Court has reached. However, I would like to expand my argument further in
the following two sections from the viewpoint of my opinion that this Court
should in certain respects function as an appellate court.
C. Legal Expectancy for Further Service and Reasonable Consideration for a
Career Appointment
25. In spite of what Mr. Yakimetz asserts, there is no doubt that prior to
26 December 1983 he had been employed by the United Nations under a
fixed-term contract on secondment. The concept of secondment for appointment
as United Nations staff is found in the Staff Rules as follows:
"Rule 104.12 — Temporary Appointments
……………………………………………………………………………………………..
(b) Fixed-term appointment
The fixed-term appointment, having an expiration date specified in the
letter of appointment, may be granted for a period not exceeding five years
to persons recruited for service of prescribed duration, including persons
temporarily seconded by national governments or institutions for service
with the United Nations. The fixed-term appoint-ment does not carry any
expectancy of renewal or of conversion to any other type of appointment."
(Emphasis added.)
Appointment on secondment is widely utilized by the United Nations to
recruit qualified persons from different countries. As is clearly indicated
in the letter of 22 April 1987 written by Mr. C.-A. Fleischhauer, the Legal
Counsel of the United Nations in reply to questions put on the Court's
behalf, professional staff with a fixed-term contract on secondment are many
in number and almost all of the staff from Eastern Europe have been
appointed solely under fixed-term contracts based upon secondment from their
releasing countries. Secondment implies the detachment of a specific person
from the releasing country or institution with the condition that he is
guaranteed a post at home which he retains during his service with the
United Nations or at least which he is assured of having upon completion of
that service. However, secondment seems to be often used in reality by some
governments to push their own nationals into the United Nations Secretariat,
without any guarantee of a post after service with the United Nations has
been completed. A person may not even [p 96] have held any official post
dependent on the government deemed to have seconded him. This is Mr.
Yakimetz's case. In this regard, secondment may mean little more than that a
particular person had been recommended by a government to the United
Nations and has been given an appointment by the latter. The practice which
the United Nations has followed is such that in the case of a renewal of
contracts or a change to another type of contract, the approval of the
releasing or seconding government of the official sought.
26. I am not suggesting that the approval of the releasing or seconding
government must always be obtained for the Secretary-General's granting of
further employment to the applicant. Yet the following statement by Mr.
Yakimetz is irrelevant:
"Many currently serving staff members have resigned from their government
service; many carry passports other than those of the country of their
birth; a number have made the transition from secondment to another type of
appointment." (A/AC.86/R.117, para. 24.)
It may be true that many serving staff members had resigned from their
government service, but Mr. Yakimetz was not in that position (as I explain
in para. 34, below). It may also be true that "many carry passports other
than those of the country of their birth", but whether Mr. Yakimetz carried
any valid passport since he applied for "asylum" on 9 February 1983 is not
known. It may also be true that "a number have made the transition from
secondment to another type of appointment", but it is not stated whether
this transition was made with the consent of the releasing or seconding
government or even against the intention of that government. What one can
say is that there certainly could not be any reason in the light of Staff
Rule 104.12 for Mr. Yakimetz legally to expect a renewal of his contract or
conversion to a career appointment.
27. The question remains whether there was anything which should or could
suspend or call a halt to such practice on the part of the United Nations
administration. In this respect it is pertinent to consider certain General
Assembly resolutions which were repeatedly referred to by the Applicant,
such as resolutions 37/126 and 38/232. The following is a brief summary of
the drafting of these two resolutions.
(1) In 1980 the General Assembly, in its resolution 35/210 (Personnel
Questions: 17 December 1980), requested the International Civil Service
Commission (ICSC) and the Joint Inspection Unit (JIU) to study further and
submit reports on the subjects of the concepts of career, types of [p 97]
appointment, career development and related questions (sec. IV, paras. 1 and
2). In response to this request the JIU submitted a report on Personnel
Policy Options (A/36/432: 14 September 1981) with later an addendum
(A/36/432/Add.l: 29 October 1981). The Secretary-General submitted his
comments on this report (A/36/432/Add.2: 27 November 1981). Meanwhile the
ICSC had submitted in its report of 15 September 1981, an Annex 1 entitled
"Study requested by the General Assembly on the concepts of careers, types
of appointments, career development and related questions" (A/36/30). In
1981 the General Assembly, in its resolution 36/233 (Report of the
International Civil Service Commission: 18 December 1981), requested the
ICSC to give high priority to the completion of the studies, inter alia, on:
"The broad principles for the determination of conditions of service with
particular reference to the concept of career, types of appointment, career
development and related questions, taking into account the views expressed
by delegations in the Fifth Committee, all related studies and the relevant
reports of the Joint Inspection Unit",
and in its Decision 36/457 (Concept of career, types of appointment, career
development and related questions)
"Decided to discuss at its thirty-seventh Session the subject of the concept
of career, types of appointment, career development and related questions as
requested in Section IV of its resolution 35/210."
(2) Annex 1 to the ICSC report to the 37th Session bore the same title as
its predecessor and stated:
"33. The Commission recommends that, upon completion of five years of
service, each employee be given every reasonable consideration by the
employing organization for a career appointment." (A/37/30, p. 92.)
At that Session, the Fifth Committee devoted many meetings to agenda items
111 (Personnel Questions) and 112 (Report of the International Civil Service
Commission), and some discussion took place concerning the concept of career
and types of appointment, etc., from 1 to 24 Nov-ember 1982
(A/C.5/37/SR.23-44). The delegate of Canada wondered whether the recommended
period of five years' employment as a basis for deciding whether to award a
staff member a permanent contract was not too long (A/C.5/37/SR.43, para.
13). The Chairman of the ICSC pointed out that:[p 98]
"A large number of delegations, including those of Canada, the members of
the European Economic Community, the Nordic countries and the Philippines,
had spoken in favour of granting a career appointment to long-term staff.
While some delegations might have reservations in principle on career
appointments, ICSC hoped that the Committee would endorse its recommendation
to the organizations of the common system that, after five years of
service, each employee should be given every reasonable consideration for a
career appointment." (A/C.5/37/SR.44, para. 16.)
Otherwise there was not much discussion on this particular point in the
Fifth Committee.
(3) On 9 December 1982 Canada, Finland, Ghana, Norway, Pakistan, Panama and
Sweden submitted a draft resolution (A/C.5/37/L.38) which the next day was
replaced by a revised text (A/C.5/37/L.38/Rev.l), with Denmark added to the
sponsoring nations. This lengthy resolution contained a paragraph which is
often quoted in the case before the Court, namely:
"The General Assembly...
IV
………………………………………………………………………………………………
5. Decides that staff members on fixed-term contracts upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment."
In introducing it, the delegate of Canada stated that:
"With regard to paragraph 5, staff in continuing jobs who were considered to
provide good service should have every reasonable consideration for career
appointments but organizations with fixed-term technical requirements would
continue to need fixed-term staff." (A/C.5/37/SR.63, para. 15.)
There was no further discussion on this particular paragraph and the draft
resolution itself, which was slightly revised through oral amendment, was
put to vote and adopted by 79 to 10 with 6 abstentions on 13 December 1982.
The delegate of the Federal Republic of Germany, speaking in explanation
after the vote, said that:
"In section IV, paragraph 5, it would have preferred the word 'Recommends'
instead of the word 'Decides', since the interests of under-represented
States, such as his own country, should be regarded as overriding concerns."
(A/C.5/37/SR.67, para. 8.)
The delegate of Japan also stated "that his delegation had abstained in the
vote because it had reservations with respect to... section IV, paragraph 5
[p 99] (together with 2 others)" (ibid., para. 9). This draft resolution of
the Fifth Committee was adopted by a recorded vote of 123 to 11 with 6
abstentions at the plenary meeting of 17 December 1982 as General Assembly
resolution 37/126, and I again quote the relevant paragraphs:
"The General Assembly...
IV
1. Welcomes the study on the concept of career, types of appointment,
career development and related questions submitted by the International
Civil Service Commission,
………………………………………………………………………………………………
5. Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment;..."
(Note: How the words "fixed-term contracts" in para. 5 in the draft
resolution adopted by the Fifth Committee came to be replaced by those of
"fixed-term appointments" in the Plenary is not known.)
(4) The section IV, paragraph 5, of resolution 37/126, which starts with the
phrase "decides", was interpreted by the Applicant, as well as by Mr. Kean,
the dissenting judge of the Administrative Tribunal, as directly binding the
Secretary-General for his observance forthwith, or even as having an effect
superior to, or overriding, the Staff Regulations or Rules. I submit,
however, that the word "decide" in this context can hardly be construed thus
to heighten the usual legal effect of a resolution of the United Nations
General Assembly. Actually, the resolution as a whole was drafted mainly in
order to improve the efficiency of the work of the Organization by
officializing the mere possibility of staff on fixed-term appointments
continuing their work under more stable conditions. This is corroborated by
the fact that all the General Assembly decided was simply that reasonable
consideration should be given to an application for a career appointment,
terms which also preclude any interpretation of this paragraph which would
place any new limit on the Secretary-General's discretion. Of course, even
Mr. Yakimetz himself did not suggest that a career appointment should have
been guaranteed by a "decision" of the General Assembly under this
resolution. In fact no particular revision has been made in either the Staff
Regulations or the Staff Rules to incorporate the relevant substance of this
resolution.
(5) On 15 November 1983, at the 38th Session of the General Assembly, the
delegate of Canada, who had taken the initiative behind the resolution of
the previous year, addressed agenda item 117 (United Nations Com-[p 100] mon
System: Report of the International Civil Service Commission) and stated
that:
"His delegation continued to support the concept of a permanent career
international civil service and believed that detailed consideration should
be given to the possibility of offering a permanent contract, without a
probationary term, to any staff member who had completed five years of
continuing satisfactory service on a fixed-term contract." (A/C.5/38/SR.38,
para. 73.)
On 7 December 1983 nine countries including Canada submitted a draft
resolution which read:
"The General Assembly...
VI
………………………………………………………………………………………………
5. Recommends that the organizations normally dispense with the requirement
for a probationary appointment as a prerequisite for a career appointment
following a period of five years' satisfactory service on fixed-term
contracts." (A/C.5/38/L.17.)
This paragraph was no longer challenged, and the draft resolution, as
amended by a United States proposal without affecting this particular point,
was adopted by 91 votes to 9 with 5 abstentions on 15 December 1983
(A/C.5/38/SR.66, para. 41). This resolution was finally adopted by the
Plenary Meeting of 20 December 1983 as General Assembly resolution 38/232.
28. Resolutions 37/126 and 38/232 were together intended to open a door to
career appointments for those staff members who had satisfactorily served
with the United Nations for the previous five years under fixed-term
contracts and sought career appointments, and to exempt them from the
probationary appointment which would otherwise be a prerequisite. But I
repeat that these resolutions, in themselves, neither guaranteed nor even
conferred a legal expectancy of any appointment. At most, the staff are
assured of "every reasonable consideration" by the Secretary-General. Is it
conceivable that, when making a determination not to give a career
appointment to Mr. Yakimetz, the Secretary-General carelessly overlooked
these resolutions or intentionally disregarded them? Certainly not. On the
contrary, the Respondent's Answer submitted by the Secretary-General before
UNAT made repeated reference to resolution 37/126. The Secretary-General is
absolutely justified in the interpretation which he offered in the following
terms:
"Respondent notes that the General Assembly only stated a desideratum,
namely, that fixed-term appointees be given reason [p 101] able
consideration; the Assembly did not specify new procedures for effecting
such consideration, or suggest that existing procedures not be utilized, and
did not convert fixed-term appointments to probationary appointments, whose
holders must, as a matter of right, be reviewed by the Appointment and
Promotion Board before being separated after two years of probationary
service. Res-pondent therefore submits that, in the absence of such
specification, suggestion or conversion, the existing procedures under the
Staff Regulations and Rules, which form an integral part of all staff
members' terms of appointment, including Applicant's, remained applicable."
(Para. 17.)
The contention that the Secretary-General might not have given every
reasonable consideration to Mr. Yakimetz's case in the light of resolution
37/126 is groundless.
29. Here I would like to add a few words to what UNAT in its Judgement
expressed in connection with:
"its dissatisfaction with the failure of the Respondent to record
sufficiently early and in specific terms the fact that he had given the
question of the Applicant's career appointment 'every reasonable
consideration' as enjoined by the General Assembly resolution" (AT/DEC/333,
p. 18, para. XX).
In my view, UNAT here makes too much of the Respondent's omission to specify
"sufficiently early and in specific terms" that he had given the Applicant's
request "every reasonable consideration"; whether the Secretary-General gave
every consideration or not is a matter rather to be presumed, and whether
that consideration was reasonable or not is a matter to be considered in
connection with his competence to exercise his discretion. (This part will
be enlarged upon in the next section.) It is surely mistaken to suggest that
silence on the point in the Respondent's initial reply constituted a
"failure", with all the overtones of dereliction of duty that this implies
in the context. To my mind, therefore, UNAT had no grounds for
"dissatisfaction".
D. Latitude for the Secretary-General's Exercise of Discretion
30. Whether in a concrete case the Secretary-General's exercise of
discretion in his appointment of staff is "reasonable" or not, or whether
the consideration given by the Secretary-General is "reasonable" or not may
be tested by the light of Article 101 (3) of the United Nations Charter,
which reads:
"The paramount consideration in the employment of staff and in the
determination of the conditions of service shall be the necessity [p 102] of
securing the highest standards of efficiency, competence, and integrity. Due
regard shall be paid to the importance of recruiting the staff on as wide a
geographical basis as possible."
The idea behind the first sentence is not peculiar to the United Nations but
is a universal rule of personnel policy, designed to maintain the
efficiency of an institution's functioning. It means that no factors which
are not relevant to efficiency, competence and integrity should be allowed
any importance detrimental to the overriding consideration of those which
are. Nevertheless, an overriding or paramount consideration is not,
implicitly, the sole consideration, as witness the immediate reference in
the same provision to another factor which deserves "due regard". Hence the
provision does not mean that all other factors should be left out of
consideration in the employment of staff.
31. It is presumed that UNAT came to the conclusion that the decision of
the Secretary-General, unfavourable to Mr. Yakimetz in spite of the latter's
apparently outstanding service with the United Nations, was yet justified as
an exercise of the former's discretion. An important factor which could
presumably have affected the Secretary-General in the exercise of his
discretion was the uncertainty of Mr. Yakimetz's personal status at the
time of his application for further employment with the United Nations
towards the end of 1983. In fact the Tribunal, in reaching its decision,
did not place any emphasis on this point — the question of his suitability
as an international civil servant — despite having raised it as one of the
three important legal issues (see para. 22 above), presumably because
neither Mr. Yakimetz nor the Secretary-General addressed this issue in their
arguments.
32. The most crucial aspect of this issue, and one which should surely have
been dealt with by UNAT, was whether or not consideration of the personal
uncertainties of Mr. Yakimetz caused by his application for "asylum", and
his alleged resignation from any post in the Soviet Govern-ment in February
1983, fell within the latitude of the Secretary-General's discretion in
matters of staff appointment. It seems that UNAT failed to spell out the
justification it had for its evaluation of the reasonableness required for
the exercise of the Secretary-General's discretion. This particular
omission might arguably have been represented as a fundamental error in
procedure or failure to exercise jurisdiction on the part of UNAT; but this
was not the possibility which the Court was asked to address. Yet the Court
should, on its own initiative, have examined the status of Mr. Yakimetz
after February 1983, in other words, the question related to the third legal
issue which UNAT raised but did not answer.[p 103]
33. The facts, as affirmed in UNAT's Judgement and in the present Opinion,
may be summarized as follows. On 9 February 1983 Mr. Yakimetz applied for
asylum in the United States. On the next day (on 10 February 1983) Mr.
Yakimetz informed the Permanent Representative of the USSR to the United
Nations that he was "resigning" from his position with the Ministry of
Foreign Affairs of the USSR and from all other official positions he had
held in the Soviet Government and that he had made an application to the
United States Government requesting asylum. On that day Mr. Yakimetz
likewise informed the United Nations Secretariat of his intention to acquire
permanent residence status in the United States and stated further that he
had applied for asylum to the United States and that he had resigned from
all official positions he had held in the Government of the Soviet Union.
34. No document indicates the way in which the asylum was sought or whether
it was granted by the United States. In the personal history form dated 10
June 1977 attached to a letter to the Assistant Secretary-General for
Personnel Services from the Deputy Permanent Representative of the USSR to
the United Nations, Mr. Yakimetz answered "No" on the questionnaire where
it asked: "Are you, or have you ever been a permanent civil servant in your
government's employ?" Mr. Yakimetz does not appear to have held any post in
the Soviet Government in February 1983 from which he could resign. Whether
Mr. Yakimetz was relieved of his Soviet nationality under Soviet law simply
by his letter addressed to the Permanent Representative of the Soviet Union
to the United Nations of 10 February 1983 is not confirmed. Bill S-1989 to
obtain permanent resi-dence in the United States for Mr. Yakimetz was
pending before the Senate when his contract was about to expire, but whether
United States immigration law is so flexible as to give permanent residence
to those who simply wish to remain in the country without going back to
their own country is not known to us, and the requirement under United
States law for acquiring the status of a permanent resident was not
conveyed to the Court. Thus no fact was mentioned and no information was
given either by Mr. Yakimetz or by any organization concerning Mr.
Yakimetz's personal status on the termination of his previous contract.
35. On the face of such information as the Court had, it looks doubtful, in
spite of what Mr. Yakimetz asserted, whether any precondition of asylum had
been realized in his case. Granting asylum to an individual certainly falls
within the competence of the State, but was there, for instance, any reason
for the United States to believe that Mr. Yakimetz should be granted asylum
in view of the provision of the Universal Declaration of Human Rights
reading that "Everyone has a right to seek and enjoy another country's
asylum from persecution"? Aside from a long-standing debate as to whether an
individual's right of asylum is an institution of international law, asylum
is not, in fact, generally granted even by the most generous countries
unless there is a well [p 104] grounded fear of the applicant's being
persecuted for reasons of religious or political opinion and belief, etc.
36. What may be gathered from the arguments and documents before the Court
is that in January 1983 Mr. Yakimetz was told, apparently by the Soviet
authorities, to take a vacation in Moscow in February to help prepare a
substitute candidate for his post and his apprehension was increased that he
would not be permitted to return to the United Nations to fulfil the term of
his contract which was to expire in December. The possibility of persecution
for reasons of political opinion or religion, etc., is quite irrelevant in
that case. Whether the Soviet authorities' instructions were in conformity
with Article 100 of the United Nations Charter is another problem. Yet is it
conceivable that the concept of seeking "asylum" in its strict sense under
international law, which is generally conditional on a genuine risk of
persecution, should apply in this case? Is the United States so generous as
to grant asylum, which is a highly privileged position in international
law, to any person of any nationality who simply wishes to continue his work
with the United Nations located on its territory and doesn't want to return
to his own country ? Has the United States even the right so to act under
international law? In spite of the contention by Mr. Yakimetz, the present
case does not relate to the issue of asylum.
37. It may be desirable that any individual in the world be free to choose
any nationality and able to move freely without the barrier of national
borders and obtain a job or practise his profession anywhere he wishes. It
may be possible to argue that such rights of the individual should be fully
protected. I am aware of the merits of these arguments but we cannot close
our eyes to the realities of there being sovereign nations, and the
individual in principle must have one nationality. The effects of change of
nationality cannot take place simply by the wish of the individual, and the
freedoms of movement and exercise of profession are thus somewhat
restricted. In the light of this, Mr. Yakimetz's personal status towards the
end of 1983 was extremely uncertain. This status of Mr. Yakimetz, I
profess, is certainly a factor which may reasonably be taken into account in
determining any personnel policy in any institution. The situa-tion
concerning Mr. Yakimetz is different from that of any person who is settled
in any foreign country as a naturalized person, a permanent resident or a
person to whom asylum has been granted.
38. I do not intend to imply that Mr. Yakimetz, because of his personal
status, should not have been eligible for a career appointment or an
extension of contract. (In other words, he might still have been permitted
further employment in spite of his uncertain personal status.) Nor am I
sug-gesting that Mr. Yakimetz should be refused employment with the United
Nations for ever. However, I would suggest that, if the Secretary-General
nevertheless took a negative decision, this remained within the latitude of
the discretion and competence of his office with regard to the appoint [p
105] ment of the United Nations staff as recognized in Article 101 (3) of
the United Nations Charter.
39. Probably UNAT should have stated more clearly that the
Secretary-General's decision not to give a career appointment to Mr.
Yakimetz might well be justified in view of the discretion which he is
entitled to exercise in pursuance of United Nations personnel policy.
However the absence of an explicit statement does not imply that the Court
should have found that UNAT erred on any point of law relating to the
provisions of the United Nations Charter in so far as the Tribunal did in
fact uphold the decision of the Secretary-General which can be justified in
the light of the latitude given to him in this respect.
(Signed) Shigeru Oda.
[p 106]
Separate opinion of judge Ago
[Translation]
1. I cannot begin these few brief comments which I am appending to the
Advisory Opinion rendered by the Court in the present case without first
stating that I did not, in perusing Judgement No. 333 of the United Nations
Administrative Tribunal, receive the same impression of clarity and
exhaustiveness as I have previously had in studying other judgements of that
Tribunal. Nor did this perusal satisfy me that, in this particular case, the
proper degree of elucidation which must accompany the quest for full justice
took place. Against this it might reasonably be argued that such impressions
are not actually relevant to the Court's strictly defined task in this case.
Accordingly I hasten to stress that, despite these preliminary remarks, I
find no sufficient cause to dissociate myself from the negative answers
which the Court has considered it necessary to give to both questions put to
it by the Committee on Applications for Review of Administrative Tribunal
Judgements.
2. I also consider that the Tribunal did not, in fact, omit to indicate its
line of thought regarding the question contained in paragraph 1 of the
request for advisory opinion, even if it did so implicitly rather than
directly and specifically, and that there are therefore no grounds for
upholding the complaint of "failure to exercise jurisdiction" on the
Tribunal's part. Moreover, I find this conclusion borne out by the fact that
the question really involved in the Applicant's claim was not so much
whether the Tribunal had ruled upon the existence of any legal impediment to
his employment with the United Nations as whether, in the Tribunal's view,
the United Nations administration had extended to the Applicant the benefit
of resolution 37/126 (sec. IV, para. 5) by giving reasonable consideration
to his application for a career appointment. The answer to the first
question followed, as it were, automatically from the answer to the second.
Now, the Tribunal undoubtedly did rule upon the latter question, in that it
first explained that, in its view, the Respondent had sole authority to
decide what constituted "reasonable consideration" and then concluded that
the Respondent, in the proper exercise of his discretion, had given
reasonable consideration to the Applicant's case for the grant of a career
appointment, reaching however a negative conclusion which the Tribunal found
unimpeachable; ..Whatever one may think of the soundness of this
conclusion, and however much one may regret the relative flimsiness of the
arguments produced in its support and the perplexity likely to be occasioned
by the conflicting views expressed on certain points by the three members of
the Tribunal, I realize that it is not for the Court to [p 107] make any
finding upon it. Within the narrow bounds of its competence, all the Court
has to state is whether, in its opinion, the Tribunal did or did not
exercise its jurisdiction, and I do not think it possible to reach any
conclusion other than that it did.
3. Nor can I dissociate myself from the Court's conclusion on the question
whether errors were made by the Administrative Tribunal, in its Judgement
No. 333, on "questions of law relating to provisions of the Charter of the
United Nations". Here again, on reflection, I have come to endorse the view
that the answer must be in the negative. In this particular connection,
there is one point which caught my attention from the start, and still
preoccupies me: the passage in Judgement No. 333 where the Tribunal saw fit
to quote once more — as it had done in its Judgement No. 326 — an opinion
expressed in 1953 by a delegate to the Fifth Committee of the General
Assembly, one which the Tribunal, I believe without any clear justification,
considered to be widely held. The Court's present Opinion includes some
observations on this point which, I feel, constitute a proper corrective. I
believe that a more thorough examination would and should have led the
Tribunal to realize that, as articulated, such an opinion could not be
deemed compatible with the requirement laid down in Article 100, paragraph
2, of the Charter, nor indeed with the very concept of an international
civil service. I find it understandable that the Judgement of the
Administrative Tribunal should have excited concern among the staff on this
point. But however that may be, it is I think crucial that the Tribunal, in
its Judgement No. 333, does not appear to have drawn from the opinion in
question any inferences of concrete relevance to the case in point and
actually prejudicial to the Applicant; for it seems clear to me that, where
the Statute of the Administrative Tribunal provides as a possible ground for
review of a Tribunal judgement an error of law relating to the provisions
of the Charter, it can only have contemplated situations in which the
alleged error would have had a decisive impact on the actual substance of a
finding counter to a plea of the applicant's. No such situation seems to
have arisen in the present case.
4. Having said that, I now wish to take advantage of the opportunity
afforded me to stress a point of principle by which I have long been
exercised. I must say that I have always felt some dissatisfaction —
although no more in the case now in question than in previous ones —
whenever the Court has been called upon to give an opinion in the context of
proceedings for review of a decision of the United Nations Administrative
Tribunal or of other similar tribunals. This is because such requests, or so
I cannot help feeling, place the Court in an uncomfortable position. It is,
so to speak, caught between two conflicting requirements. On the one hand,
it must scrupulously avoid the temptation to carry out any of the functions
which might be proper to an administrative appeal court, but which would be
wholly incompatible [p 108] with its nature as the supreme judicial organ of
the United Nations, whose role is to settle international legal disputes
between States. On the other hand, given the narrow limits to which its
powers of appraisal in such cases are confined — and quite rightly, let me
hasten to say — by the governing texts, including the Statute of the United
Nations Administrative Tribunal, it can scarcely be denied that the Court
has very little scope for exercising any decisive concrete influence in the
interest of ensuring that administrative justice is genuinely done.
5. That something had to be done to counteract the drawbacks which might
result from the decisions of the Administrative Tribunal, established in
order to ensure observance of the law in the mutual relations between the
United Nations administration and its staff, was clear from the outset to
those responsible for setting up this essential judicial body. This was the
reason why a review procedure was devised and put into operation. But it may
be wondered whether this procedure, which is undeniably complex, requiring
as it does the successive and combined intervention of two high-level
bodies, is the most appropriate one for the particular ends in view. Under
this system, the forum which is immediately available to an individual
considering himself injured by a judgement of the Administrative Tribunal
is the Committee on Applications for Review of Administrative Tribunal
Judgements. The members of this Committee are the representatives of all the
member States on the General Committee of the most recent regular session of
the General Assembly. This extremely broad composition, and the type of
procedure followed by the Committee in reaching its decisions, do not
correspond very closely to the sort of composition and procedure one
expects of a body entrusted with judicial functions. And yet the functions
entrusted to it are certainly judicial, or at least quasi-judicial. It has
to (a) sift and examine the applications received for review of judgements
of the Administrative Tribunal; (b) decide whether or not there is a
"substantial basis" for each application; (c) select, among the various
grounds for review laid down in the Statute of the Administrative Tribunal,
those which it considers applicable to the case in hand, thereby taking the
responsibility of excluding the others outright; (d) request, in such cases,
an advisory opinion of the International Court of Justice on the grounds not
rejected. Moreover, the competence bestowed upon the Court for the rendering
of an advisory opinion to that Committee following such a request is
necessarily confined to certain clearly-defined legal aspects, and nobody
anxious to avoid distorting the Court's proper functions would seriously
contemplate widening these limits. Then again, I leave unuttered all that
might be said about the, to say the least, curious aspects, in legal logic,
of a procedure which consists of requesting a tribunal to rule by means of
an advisory opinion upon a decision handed down by another tribunal.[p 109]
6. What is chiefly important, in my view, is to bring out some of the
consequences of this general situation. One almost inevitable result is that
the judgements of the Administrative Tribunal are ultimately beyond the
reach of any genuine judicial review, and not only as regards whichever
legal aspects exceed the limits of the Court's advisory jurisdiction, but
also as regards their factual aspects, which are often of great importance.
It cannot therefore be claimed, in my view, that the system as originally
devised fully met the need for a system of administrative justice which
must be satisfactory in itself, and must also provide proper safeguards
both for the overriding interests of the United Nations as an organization
and for the legitimate claims at law of individuals in its service. For
these reasons I have always held the view that the only true remedy for the
drawbacks I have mentioned would be the introduction of a second-tier
administrative court, in other words, a court with competence to review the
decisions of the first-tier court in all respects, both legal and factual,
and to correct 'and compensate any defects they may contain. I would also
point out that such a second-tier court could exercise jurisdiction over the
decisions of all the administrative tribunals which exist in the various
international organizations, thus achieving at this higher level the kind of
unified jurisdiction which has so far proved difficult to create at the
lower level.
7. To conclude these few remarks, I may say that I hope the competent
organs of the United Nations will focus their attention on these problems,
and above all that they will one day possess the necessary will and find the
requisite resources to carry out a proper reform of the existing system.
(Signed) Roberto Ago.
[p 110]
Dissenting opinion of judge Schwebel
While joining my colleagues in voting in favour of the Court's rendering an
Advisory Opinion in this case, and in favour of the Court's reply to
question 1,I regret to be obliged to dissent from the Opinion as a whole in
view of my disagreement with the Court's reply to the essential question,
question 2.
Observations on Question 1
I have voted in favour of the Court's reply to question 1 with some
hesitation. That reply is, I believe, correct, not because Judgement No.
333 of the United Nations Administrative Tribunal is sound, nor because the
Tribunal adequately or rightly responded to the question of whether a legal
impediment existed to the further employment by the United Nations of Mr.
Yakimetz after the expiration of his fixed-term contract on 26 December
1983. On the contrary, the Tribunal's Judgement is spangled with error and
such inferential response as it may be said to have given to the question of
a legal impediment was unsupported by the facts. Nevertheless, the Court's
reply to question 1 may be accepted as correct within the narrow confines of
that question, as the Court has chosen — even more narrowly — to interpret
it, namely: the Tribunal did not fail to exercise its jurisdiction since one
may deduce from Judgment 333's elliptical text, as elucidated with the help
of its concurring and dissenting opinions, that the Tribunal did address its
mind to the question of whether a legal impediment to a career appointment
existed. As far as the text of that Judgement reveals, the Tribunal's mind
was far from clear; at any rate, the expression which the Judgement gives of
the Tribunal's ratiocinations in this regard is obscure. Nevertheless, for
the reasons which Judge Jennings sets forth in the dissenting opinion which
follows this opinion, the Court's reply to question 1 is sustainable, since
the Judgement of the Tribunal would not appear to constitute a failure to
exercise jurisdiction so much as an erroneous exercise of it. Accordingly,
to vote in favour of the Court's answer to question 1 is by no means to
suggest that the results of the Tribunal's addressing its mind to the issue
of a legal impediment are correct. The Court's opinion rightly stops short
of any such holding or inference.[p 111]
Observations on Question 2
The essential issues of the Yakimetz case are encompassed by question 2. As
the Secretary-General has acknowledged, the dispute between the parties
turns on "essentially whether the Applicant was given 'every reasonable
consideration' for a career appointment pursuant to General Assembly
resolution 37/126 . . ." (A/AC.86/R.118). If he was not, but if the Tribunal
held that he was, the question then arises whether the Tribunal thus "erred
on a question of law relating to the provisions of the Charter of the United
Nations".
For the reasons so ably and precisely set out in Judge Jennings' opinion —
and particularly because of the terms of the correspondence he fully quotes
which passed between the Secretary-General and Mr. Yakimetz, which need not
be repeated in this opinion — I am convinced that, in fact, the
Secretary-General did not give Mr. Yakimetz's candidacy for a career
appointment "every reasonable consideration" — or indeed any consideration.
The letter written on behalf of the Secretary-General on 21 December 1983 is
unambiguous and dispositive. It indicates that Mr. Yakimetz's candidacy for
a career appointment could not be given every reasonable consideration
because "Your situation" was "not similar to that of 'most staff members'
with comparable service records, because your present contract was concluded
on the basis of a secondment from your national civil service". It holds
that, being seconded, and having no "expectancy of renewal without the
involvement of all the parties originally concerned", and having no
"expectancy ... of conversion to any other type of appointment", Mr.
Yakimetz's name could not be " 'forwarded to the appropriate Appointment and
Promotion body for reasonable consideration' for career appointment". I fail
to see how an analysis of the correspondence between the Secretary-General
and Mr. Yakimetz, particularly the letter of 21 December 1983, can sustain
another interpretation. I find the construction placed upon that
correspondence by the Tribunal and by the Court unconvincing — more, in
Judge Jennings' term, "not possible".
It is significant that the Tribunal itself could do no more than speak of
what the Secretary-General "apparently decided"; it relies upon an alleged
"plain and simple inference" which it purports to extract from the text of
the critical letter of 21 December 1983. It cannot rely on the explicit
language of that letter, which cuts the other way.
It is true that the letter of 21 December 1983 states that "The
Secretary-General has given careful consideration to the issues raised" by
Mr. Yakimetz in his counsel's letter of 13 December, among which was Mr.
Yakimetz's entitlement to "every reasonable consideration" for a career
appointment. But the terms of the letter of 21 December expressly exclude
precisely that latter consideration; accordingly, the inference [p 112]
which the Tribunal purports to discover, relying only on this reference "to
the issues" which the Secretary-General considered, is fanciful. The
specific governs the general. It is also significant that the Tribunal felt
obliged to criticize the Secretary-General for his failure to state
"explicitly" before 26 December 1983 that he had given "every reasonable
consideration" to the Applicant's career appointment; the Tribunal recorded
its dissatisfaction at the Secretary-General's "failure ... to record
sufficiently early and in specific terms the fact" that he had given that
appointment the consideration "enjoined" by the General Assembly. Yet the
Tribunal nowhere supplies a particle of direct evidence in support of its
finding of that "fact" (which it acknowledges actually to be no more than an
inference), nor has a shred of such evidence been pleaded by the
Secretary-General at any stage of the case. For its part, the Court, which
has scrutinized the record of the case, has been unable to produce one scrap
of evidence in support of the Tribunal's finding that the Secretary-General
gave Mr. Yakimetz's candidacy for a career appointment every reasonable or
indeed any consideration.
There are two further factors which reinforce the conclusion which Judge
Jennings and Judge Evensen and I share in this regard. They sit uneasily
with the inferential interpretation placed upon the relevant correspondence
by the Tribunal and the Court. The first is that the Secretary-General
debarred Mr. Yakimetz from the premises of the United Nations, a debarral
dictated shortly after Mr. Yakimetz's resignation from Soviet official
positions and his application for asylum in the United States, and
maintained thereafter to the very end of Mr. Yakimetz's service in the
Organization. It was explained in his Comments submitted to the Court on 26
June 1985 (but not explained to Mr. Yakimetz at the operative time) that
this "decision not to permit the Applicant, the centre of a controversy
between two member States, to enter the Headquarters buildings", was "an
administrative decision taken in the light of all the circumstances of the
case and in order to avoid potentially disruptive consequences for the
functioning of the Secretariat" (para. 17).
The mildest observation that may be made in respect of this extraordinary
action is that it was hardly consistent with a then existing,
contemporaneous disposition, or subsequent disposition, on the part of the
Secretary-General to extend to Mr. Yakimetz every reasonable consideration
for a career appointment. Can it really be supposed that, at one and the
same time, during a period for all of which Mr. Yakimetz remained barred
from entering the Headquarters building, the Secretary-General was giving
every reasonable consideration to his career appointment? Can it be thought
that it was the view of the Secretary-General that a staff member merited
continued exclusion from his office and from the [p 113] United Nations
corridors and cafeteria and, at the same time, every reasonable
consideration for a permanent appointment upon the expiration of the
fixed-term appointment which he was debarred from serving out on United
Nations premises? Would the "potentially disruptive consequences" to which,
post facto, the Secretary-General alluded, have disappeared during the
post-1983 period in which Mr. Yakimetz, holding a permanent appointment,
would have served, or does this comment of the Secretary-General indicate
that the controversial Mr. Yakimetz, whose lunching in the cafeteria could
be "disruptive", could not be seriously considered for a United Nations
career, even though his per-formance ratings were excellent and even though
resolution 37/126 required that he be given every reasonable consideration?
The second factor is that the Secretary-General failed to acknowledge, let
alone act upon, the application for a permanent appointment which Mr.
Yakimetz officially submitted on 9 January 1984, days after the expiration
of his fixed-term appointment. That reaction, or lack of reaction, to Mr.
Yakimetz's application for a career appointment suggests not that "every
reasonable consideration" was given to it, but that no consideration was
given to it. If there is another explanation of the Secretary-General's
failure to reply to Mr. Yakimetz's application which is more favourable to
the Secretary-General's position, it has not been forthcoming.
It might be speculated that the Secretary-General did not reply to Mr.
Yakimetz's application for a career appointment of 9 January because Mr.
Yakimetz filed his application with the Administrative Tribunal on 6
January. But that is conjecture. What is significant is that the
Secretary-General has never advanced this argument, not to Mr. Yakimetz in
January 1984 as he could so readily have done, nor to the Tribunal or the
Court thereafter. One is left with the conclusion that the failure to
acknowledge or respond to Mr. Yakimetz's application of 9 January confirms
the failure of the Secretary-General to give Mr. Yakimetz's candidacy every
or any reasonable consideration.
The Nature of an Error of Law "relating to" the Charter; and Further
Observations on Question 2, including the Tribunal's Error relating to
article 101, paragraph 1, of the charter
Before looking more closely at the errors of law relating to provisions of
the Charter of the United Nations made by the Administrative Tribunal in
this case, it may be useful to comment upon that provision of the
Tribunal's Statute. The terms of Article 11 of the Statute of the Tribunal,
as well as its travaux préparatoires, make clear that an error of law
"relating to" provisions of the United Nations Charter need not squarely and
directly [p 114] engage a provision of the Charter. It is sufficient if such
an error is "in relationship to" the Charter, "has reference to" the
Charter, or "is connected with" the Charter. (See the definitions under
"relate" and "relating" found in The Oxford Dictionary, 1910, Vol. VIII,
pp. 397-398, and in Webster's Third New International Dictionary of the
English Language, Unabridged, 1976, p. 1916.) The phrase "the provisions" of
the Charter cannot mean all the provisions of the Charter, because no error
of the Administrative Tribunal could apply to all the provisions of the
Charter; that phrase must mean, "one or more provisions" of the Charter. An
error, if it is to furnish ground for objection to a judgement of the
Tribunal, must have a relationship to or be connected with at least one
provision of the Charter. Moreover, when Article 11 of the Statute of the
Tribunal was adopted, it was declared by the co-sponsors of the language in
question that: "The words 'relating to the provisions of the Charter'
covered not only interpretations of the provisions of the Charter but also
the interpretation or application of staff regulations deriving from
Chapter XV of the Charter." (A/AC.78/SR.10, p. 3, quoted in Application for
Review of Judgement No. 273 of the United Nations Administrative Tribunal,
I.C.J. Reports 1982, p. 394, para. 9, and p. 469, para. 21; emphasis added.)
It was understood that:
"The co-sponsors intended by the phrase : 'a question of law relating to
the provisions of the Charter' to provide for a case not only where the
Administrative Tribunal might be considered to have misinterpreted the
Charter, but also where the Tribunal might have interpreted and applied the
Staff Regulations in a manner considered to be inconsistent with the
provisions of Chapter XV of the Charter." (United Nations, GAOR, 10th
Session, Annexes, Report of the Special Committee on Review of
Administrative Tribunal Judgements, p. 10; quoted in I.C.J. Reports 1982,
p. 471, para. 24.)
When the Secretary-General fails to apply a provision of a resolution
binding upon him which the General Assembly has adopted in pursuance of its
authority under Article 101, paragraph 1, of the Charter, which provides
that, "The staff shall be appointed by the Secretary-General under
regulations established by the General Assembly", and when the
Administrative Tribunal omits to recognize that failure — and consequently
accepts a failure to apply the governing regulation — the Tribunal errs on a
question of law "relating to" the Charter. That is exactly the instant case.
It is exactly the kind of case which the General Assembly had in mind when
it adopted Article 11 of the Statute of the Administrative Tribunal, as the
foregoing quotations from the travaux préparatoires show.
It is of course true that the Secretary-General does not now acknowledge
that he failed to apply a provision of a General Assembly resolution which
he does acknowledge is binding upon him. He rather has affirmed [p 115] to
the Administrative Tribunal and to this Court what he had omitted to affirm
to Mr. Yakimetz: that he had given a career appointment for Mr. Yakimetz
every reasonable consideration. The Secretary-General was placed in a
difficult position by the circumstances of the Yakimetz case; and his
affirmations placed the Tribunal, and this Court, in a delicate position.
The reluctance of the Tribunal and the Court to discount the
Secretary-General's affirmations is understandable. But, as Judge Jennings
shows, the essence of administrative law and process entails the possibility
of disallowance of the executive's affirmations. If what is the fact depends
solely on the executive's post facto, unproved affirmation of what was the
fact, there is no utility in administrative law, processes, and tribunals.
For my part, with every respect for the Secretary-General's goodwill and
good faith, I regret to be impelled to say that these unsupported
statements of the Secretary-General cannot be accepted as governing.
It would be otherwise if the Secretary-General had substantiated his alleged
consideration not merely by broad and conclusory statements made well after
the operative time, solely in an adversarial context, and exclusively to the
Tribunal and this Court (never, at the operative time, to Mr. Yakimetz). It
would be otherwise if the Secretary-General's representative had not
written to Mr. Yakimetz in the terms of the letter of 21 December 1983. But
at the operative time, the Secretary-General, far from informing Mr.
Yakimetz that every reasonable consideration to his career appointment had
been given, was being given, or would be given, wrote Mr. Yakimetz that he
could not be given consideration for a career appointment "because your
present contract was concluded on the basis of a secondment from your
national civil service". I do not believe that the Secretary-General now can
be heard to say the contrary of what he said at that determinative time.
The Role of the Court in this Class of Case
The Court reassures itself about the justice of an opinion about which it
appears none too sure by maintaining that its proper role in this class of
case is not to retry the case and to attempt to substitute its own opinion
on the merits for that of the Tribunal. But the Court does not equally
emphasize what it held in 1982, that it is
"very much the business of this Court to judge whether there is a
contradiction between a particular interpretation or application of Staff
Regulations and Rules by the Tribunal and any of the provisions of the
Charter" (I.C.J. Reports 1982, p. 359, para. 66).
The Court fails to stress that, as it held in 1973, the Court's role is to
determine if the circumstances of the case, "whether they relate to merits
or procedure", show that any objection made to the judgement on one of the
grounds mentioned in Article 11 is well founded: [p 116]
"In so doing, the Court is not limited to the contents of the challenged
award itself, but takes under its consideration all relevant aspects of the
proceedings before the Tribunal as well as all relevant matters submitted to
the Court itself by the staff member and by the Secretary-General with
regard to the objections raised against that judgement. These objections the
Court examines on their merits in the light of the information before it."
(Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, I.C.J. Reports 1973, p. 188, para. 47.)
Indeed as the Court further held in the Fasla case, "where the judgement has
been challenged on the ground of an error on a question of law relating to
the provisions of the Charter, the Court may ... be called upon to review
the actual substance of the decision" (ibid., para. 48). The Court further
held that, in review proceedings, the Court does not regard itself "as
precluded from examining in full liberty the facts of the case or from
checking the Tribunal's appreciation of the facts" (ibid., p. 207, para.
85). The extent of the Court's authority to examine in full liberty the
facts of the case and to pass upon the merits of the Tribunal's Judgement is
confirmed by the fact that its advisory opinion in this class of case binds
the Secretary-General and the Tribunal. Article 11, paragraph 3, of the
Tribunal's Statute provides:
"In any case in which a request has been made for an advisory opinion, the
Secretary-General shall either give effect to the opinion of the Court or
request the Tribunal to convene specially in order that it shall confirm its
original judgement, or give a new judgement, in conformity with the opinion
of the Court. If not requested to convene specially the Tribunal shall at
its next session confirm its judgement or bring it into conformity with the
opinion of the Court."
The phrase, "in conformity with the opinion of the Court" in the first
sentence of the foregoing quotation governs the whole of that sentence, as
its punctuation demonstrates. Thus the Secretary-General himself either must
give effect to the Court's opinion or the Tribunal must act to confirm its
original judgement or give a new judgement, both of which judgements must be
"in conformity with the opinion of the Court". This ineluctable
interpretation is confirmed by the second sentence of the foregoing
provision, which likewise obliges the Tribunal to bring its judgement "into
conformity with the opinion of the Court". As the Court itself recognized
in the Fasla case, "the opinion given by the Court is to have a conclusive
effect with respect to the matters in litigation" in the case before the
Administrative Tribunal (I.C.J. Reports 1973, p. 182, para. 39). This is a
"special effect to be attributed to the Court's opinion by Article 11 of the
Statute of the United Nations Administrative Tribunal . . ." (ibid., p. 183,
para. 39).
Moreover, it was recognized by its co-sponsors in the course of adopt-[p
117]ing Article 11 of the Tribunal's Statute that "the International Court
of Justice should be the final authority on interpretation of the Charter or
of staff regulations based thereon which might be involved in the Tribunal's
decisions" (GAOR, 10th Session, Fifth Committee, 498th Meeting, p. 66
(emphasis added); see I.C.J. Reports 1982, p. 473, para. 27). The Court was
intended to be and, by the terms of the Tribunal's Statute, is "the final
judicial arbiter on questions of Charter law"; and "no organ would be more
competent to settle other issues arising from the grounds specified for
review" (Report of the Fifth Committee, GAOR, 10th Session, Agenda item 49,
Annexes, p. 40; see I.C.J. Reports 1982, p. 474, para. 28). It is
significant that not only was "the final authority" of the Court emphasized
— an authority which accordingly must be able to substitute its opinion on
the merits for that of the Administrative Tribunal, for an opinion which
does not govern cannot be "final". It is equally significant that it was
made clear by the Report of the Fifth Committee that the jurisdiction of the
Court was defined to embrace the "legitimate interest in ensuring proper
application of the Charter and the Staff Regulations ..." (ibid.). It could
not be plainer that, under Article 11 of the Tribunal's Statute, the Court
is "the final authority on interpretation ... of staff regulations based" on
the Charter, i.e., regulations established by the General Assembly under
Article 101, paragraph 1, of the Charter — such as that expressed by
resolution 37/126, IV, paragraph 5.
In view of the terms of the Tribunal's Statute and the foregoing intentions
of its draftsmen, and in view of the Court's proper holding that it may
examine "in full liberty the facts of the case" and check "the Tribunal's
appreciation of the facts" (I.C.J. Reports 1973, p. 207, para. 85), I
believe that today's opinion of the Court, and previous opinions to like
effect, are on weak ground when they shelter behind the conclusion that,
"the Court's proper role is not to retry the case and to attempt to
substitute its own opinion on the merits for that of the Tribunal" (I.C.J.
Reports 1982, p. 356, para. 58, adopted in this opinion in paras. 27 and
89). On the contrary, the Court, when seised of a case of this kind,
exercises "judicial review ... The opinion of the Court is to be given a
reformatory character." Since an objection on the ground that the Tribunal
has erred on a question of law relating to a provision of the Charter
"relates not to the validity of the judgment but to the merits of the
judgment" of the Tribunal, this ground affords the Court "true appellate
jurisdiction" (Leo Gross, "Participation of Individuals in Advisory
Proceedings before the International Court of Justice: Question of Equality
between the Parties", 52 American Journal of International Law (1958), p.
36.)[p 118]
This is the conclusion which Judge Oda, in his separate opinion, and which
I, in my dissenting opinion, reached in 1982 in the Mortished case, after an
examination of the drafting history of Article 11 of the Statute of the
Administrative Tribunal; it remains correct today (see I.C.J. Reports 1982,
pp. 393-397, 468-470, 471, and Judge Oda's separate opinion in the current
case, paras. 14-18). It is fully justified by the intent of the General
Assembly in adopting Article 11 of the Statute of the Administrative
Tribunal, as that intent is shown by the quotations from the tra-vaux
préparatoires set out above and in the cited Mortished opinions. In such a
case, the Court is entitled — if not required — to substitute its opinion
for that of the Tribunal on the merits, and both the Secretary-General and
the Tribunal are bound to conform their judgments to the Court's opinion.
What is at issue in the Yakimetz case is the Administrative Tribunal's
"interpretation or application" — or misinterpretation or misapplication —
"of staff regulations deriving from Chapter XV of the Charter", an issue
explicitly declared by the drafters of Article 11 of the Statute to be
within the Court's competence. The Court is fully empowered to give an
opinion on the merits of that issue. Its failure to do so constitutes a
failure to exercise a responsibility validly entrusted to it by the General
Assembly.
It may be added that the exclusionary approach to its jurisdiction which the
Court finds it convenient to adopt in the current case contrasts tellingly
with the extraordinarily expansive approach to its jurisdiction which the
Court found it convenient to adopt in the case concerning Military and
Paramilitary Activities in and against Nicaragua (I.C.J. Reports 1984, p.
392; (I.CJ. Reports 1986, p. 14).
The Tribunal's Erroneous Interpretation of Article 101, Paragraph 3, of the
Charter
While the critical error of law relating to a provision of the United
Nations Charter in this case lies in the Tribunal's failure to find that the
Secretary-General had not given Mr. Yakimetz's candidacy every reasonable
consideration, and in its consequent failure to require the
Secretary-General to comply with a regulation binding upon him, established
by the General Assembly in pursuance of Article 101, paragraph 1, of the
Charter, still another error of law relates to Article 101, paragraph 3, of
the Charter. That provision in effect establishes three "paramount"
considerations in the employment of staff: efficiency, competence, and
integrity. It further provides that: "Due regard shall be paid to the
importance of recruiting staff on as wide a geographical basis as possible."
That lesser consideration in no way imports that a change in the nationality
of a staff member, much less actions manifesting an intent to seek a change
in nationality, are considerations relevant to the suitability for continued
service of such a staff member. The Administrative Tribunal held in the
Estabial case (Judgement [p 119] No. 310) that considerations of
geographical distribution may not be given precedence over an employment
decision which is to be reached on the basis of an assessment of an
official's efficiency, competence and integrity. No less must the paramount
considerations of efficiency, competence and integrity govern considerations
of nationality, which are not even mentioned in the Charter.
For his part, however, the Secretary-General, in his actions relating to Mr.
Yakimetz, clearly gave weight to what he described as "the events of 10
February 1983, and thereafter" (the date being that of Mr. Yakimetz's
communication to the Government of the USSR resigning his positions with
it); in his Comments to the Court of 26 June 1985, the Secretary-General
acknowledged that all the circumstances of which he took account "obviously
included the Applicant's proposed change of nationality" (para. 14). For its
part, the Tribunal defined as one of the three legal issues of the case:
"The consequences of the application of United Nations rules and regulations
in relation to the United States law on resident status and citizenship." In
that regard, it held:
"XII. The Applicant was entitled to act in any way he considered best in his
interest, but he must necessarily face the consequences for his actions...
Another consequence of his actions raised the question of his suitability as
an international civil servant. In Judgement No. 326 (Fischman), the
Tribunal referred to the widely held belief mentioned in a report of the
Fifth Committee of the General Assembly that
'International officials should be true representatives of the cultures and
personality of the country of which they were nationals, and that those who
elected to break their ties with that country could no longer claim to
fulfil the conditions governing employment in the United Nations',
and held that this 'must continue to provide an essential guidance in this
matter'. In the same judgement, the Tribunal also recalled a part of
Information Circular ST/AFS/SER.A/238 of 19 January 1954 which stated, inter
alia, that
'The decision of a staff member to remain on or acquire permanent residence
status in ... [the] country [of his duty station] in no way represents an
interest of the United Nations. On the contrary, this decision may adversely
affect the interests of the United [p 120]Nations in the case of
internationally recruited staff members in the Professional category ...'
The Applicant had been granted asylum in the United States of America and
there arose the problem of his having to waive privileges and immunities
with the permission of the Respondent. Such a waiver was necessary for
changing his visa category under the United States laws. However there was
apparently no immediate problem and it seems that no request was made to the
Respondent for agreeing to the Applicant waiving his privileges and
immunities. Besides, a private bill was later introduced on the Applicant's
behalf in the United States House and Senate.
XIII. In view of the foregoing, the Tribunal concludes that during the
period of his service with the United Nations the Applicant was under
secondment which, as already stated, could not be modified except with the
consent of all three parties and that no tacit agreement existed between
the Applicant and the Respondent between 10 February 1983 and 26 December
1983 changing the character of their relationship.
XIV. With these conclusions in mind the Tribunal considered the Applicant's
plea that he was entitled to, but was denied, the right to receive 'every
reasonable consideration' in terms of paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982."
It is one of several perplexities posed by the Administrative Tribunal's
Judgement that the Tribunal fails to make clear the relevance to its
Judgement, if any, of paragraph XII and its incorporation of passages of
its contemporaneous Judgement No. 326 in the Fischman case (made by the
same Tribunal majority, i.e., President Ustor and Vice-President Sen).
Fischman refers to an allegedly "widely held belief mentioned in a report of
the Fifth Committee that an international official who elects to break his
ties with his country could no longer claim to fulfil the conditions
governing employment by the United Nations. Whatever the point of the
Tribunal's invocation in the Yakimetz Judgement of 8 June 1984 of what it
said on 17 May 1984 in the Fischman case, what is clear is that the Tribunal
concluded that "an essential guidance in this matter" (i.e., Fischman) is
the aforesaid "widely held belief and that a "consequence of his [Mr.
Yaki-metz's] actions" in seeking to change his nationality was to raise "the
question of his [Mr. Yakimetz's] suitability as an international civil
servant", because of the doctrine set out in and quoted from Fischman which
provides "essential guidance". The Tribunal further held that "In view of
the foregoing" (para. XIII), and "With these conclusions in mind" (para.
XIV) — i.e., apparently, its foregoing holdings, among others, [p 121] about
Mr. Yakimetz's suitability — the Tribunal considered the Applicant's pleas
respecting entitlement to but denial of every reasonable consideration for
a career appointment.
In so holding, the Tribunal committed an error of law relating to a
provision of the United Nations Charter, namely Article 101, paragraph 3.
As noted above, a change of nationality, much less an intended change of
nationality, is not, or should not be, a consideration "essentially" bearing
upon employment of United Nations staff. A change of nationality, while it
may marginally affect computation of national quotas, does not detract from
the efficiency, competence or integrity of a staff member. It does not throw
into question the "suitability" of "an international civil servant" for
continued service. In certain circumstances, it might even be evidence that
such a staff member sought to avoid receipt of, or compliance with,
"instructions from any government or from any other authority external to
the Organization". The Applicant indeed alleges the existence of such
circumstances in this case. His allegations, for which some supporting
evidence has been introduced, have not been refuted or even denied. This is
not to say that the Secretary-General transgressed Article 101, paragraph 3,
of the Charter in taking account of Mr. Yakimetz's proposed change of
nationality; such a proposed change was among the circumstances he could
weigh in the process of giving Mr. Yakimetz consideration for a career
appointment — provided that he actually gave Mr. Yakimetz that
consideration. It is to say that the Tribunal's holding that that proposed
change put into question — it indicates, "essential" question — Mr.
Yakimetz's suitability for continued United Nations service did transgress
Article 101, paragraph 3, of the Charter.
The question before the Court in the Yakimetz case naturally is not whether
the Administrative Tribunal's Judgement in the Fischman case contained an
error of law relating to a Charter provision, but whether the reliance on
the passage of the Fischman Judgement quoted by the Tribunal in its
Yakimetz Judgement imported an error into that Judgement, and, if so,
whether it is an error of law relating to a Charter provision. The Tribunal
found it appropriate to incorporate holdings in the Fischman case into
Yakimetz, holdings which attribute "essential guidance" to a so-called
"widely held belief" about the legal consequences to be attached to a United
Nations official's change of nationality. It thereby invested maintenance of
nationality of a United Nations official with an essentiality or paramountcy
which conflicts with the terms of Article 101, paragraph 3, of the Charter.
Beliefs expressed in a United Nations [p 122] committee, whether widely held
or not, are not sources of law; still less may they derogate from the terms
of the Charter. The weight attached by the Administrative Tribunal to that
belief thus constitutes an error of law relating to a provision of the
Charter. That error does not appear to have had dispositive effect on the
Tribunal's Judgement; for this reason, it may be treated as obiter dictum.
But since the Court, as the Court acknowledges, is obliged to assign error
relating to a Charter provision regardless of its impact on the operative
part of the Tribunal's decision, and whether or not it "has occasioned a
failure of justice", the Court should have held that, in this respect, the
Administrative Tribunal erred on a question of law relating to a provision
of the Charter. The Court's failure to do so is the more regrettable in view
of the importance of upholding a principle of the Charter which is vital to
the maintenance of the independence and exclusively international
responsibility of the Secretariat.
At the same time, it should be observed that the Court
"notes in this respect that the 'widely held belief amounts to the views
expressed by some delegates to the Fifth Committee in 1953 at the Eighth
Session of the General Assembly, which never materialized in an Assembly
resolution" (para. 84).
The Court furthermore quotes a statement of the Secretary-General that
differs sharply and refreshingly from the foregoing erroneous holding of the
Administrative Tribunal:
"Certainly, Respondent does not consider that a continuing relationship
with a national government is a contractual obligation of any fixed-term
staff member — seconded or not —, nor would a break between a staff member
and his government constitute in itself grounds for terminating the
fixed-term contract of a fixed-term staff member seconded or not. It is not
for Respondent to approve or disapprove Applicant's transfer of
allegiance." (Para. 83.)
Equally, in its reasoning, the Court disowns:
"saying that a change or attempted change of nationality may be treated as a
factor outweighing the 'paramount' consideration defined by Article 101,
paragraph 3, of the Charter..." (para. 87).
Nevertheless, in the end, and "on balance", the Court, reiterating that its
proper role is not to substitute its own opinion on the merits for that of
the Tribunal, declines to find an error of law relating to a Charter
provision here, on the grounds that the Tribunal found as a fact that there
had [p 123] been "reasonable consideration" of Mr. Yakimetz's case, "and by
implication that the Secretary-General had not been under a misapprehension
as to the effect of secondment" and that: "The provision of Article 101,
paragraph 3, of the Charter must have been present to the mind of the
Tribunal when it considered the question" (para. 89). Without further
explanation, the Court then concludes: "In the view of the Court, these
findings cannot be disturbed on the ground of error on a question of law
relating to the provisions of the Charter." (Ibid.)
The Court thus takes care not to approve the Tribunal's Judgement in so far
as it holds that a change of nationality or attempted change raises
essential questions about the suitability of a staff member for continued
employment. Since the Tribunal's Judgement on this important issue so
obviously conflicts with the letter and spirit of the Charter, the Court
could hardly do otherwise.
What is puzzling is that the Court refrains from forthrightly denominating
the Tribunal's evident error as an error of law relating to a Charter
provision because of the Court's conclusion that (a) the Tribunal found as a
fact that Mr. Yakimetz had been afforded reasonable consideration; (b) the
Tribunal found "by implication" that the Secretary-General had no
misapprehension about the effect of secondment; and (c) the Tribunal must
have had the terms of Article 101, paragraph 3, "in mind". The Court appears
to believe that the Tribunal's findings, or what the Court assumes that the
Tribunal had in mind, cure, in some way, the Tribunal's manifest
misconstruction of Article 101, paragraph 3, of the Charter. To my mind,
however, this elusive reasoning of the Court illustrates again how far it
strains to avoid explicit recognition of the Tribunal's errors of law
relating to provisions of the Charter.
The Court's attempts to explain away the Tribunal's error of law in respect
to Article 101, paragraph 3, of the Charter are particularly unper-suasive
when it is recalled that, in respect of factor (a), the Tribunal's finding
of "fact" is based on no facts whatever; it simply is an inference
— as the Tribunal admits — and one which the Tribunal claims to derive from
the text of a letter, which text refutes the inference (as do the
surrounding circumstances of the case). As to factor (b), in which the
Court finds that the Tribunal "by implication" concluded that the
Secretary-General had not been under a misapprehension as to the effect of
secondment, the weakness of the Tribunal's reasoning and of the Court's
reliance upon it is revealed by resort to "implication". "Implication" of a
fact cannot override demonstration of a contrary fact; and the
communications of the Secretary-General which Judge Jennings quotes
demonstrate that, at the operative time, the Secretary-General obviously was
under the precise misapprehension as to the effect of secondment which the
Tribunal chooses to imply that he was not. As to factor (c)that the
provision of Article 101, paragraph 3, of the Charter "must [p 124] have
been present to the mind of the Tribunal when it considered the question" —
that may well be so. But the question is not whether the Tribunal thought
about the terms of Article 101, paragraph 3, but whether it thought about
them correctly. If it did not, and if it expressed its error in its
judgement, it committed an error of law relating to a provision of the
Charter. Actually, that is exactly what it did, when it incorporated into
its judgement in Yakimetz its erroneous holding in Fischman which invests a
Secretariat official's change of nationality with an essentiality or
paramountcy which conflicts with the terms of Article 101, paragraph 3.
For these reasons, I regret to say that the Court's conclusion that "these
findings cannot be disturbed on the ground of error on a question of law
relating to the provisions of the Charter" is what is truly disturbing. In
my view, the Court, taking cover behind the jurisdictional barrier which it
has found it politic to postulate, has turned a blind eye towards the
Administrative Tribunal's errors of law relating to Charter provisions. The
loser is the United Nations and the independent Secretariat which its
Charter is designed to protect.
The Court's Construction of Article 100 of the Charter and the Tribunal's
Error of Law relating to Article 100
The Court rejects the Applicant's contention that the Tribunal committed an
error of law relating to Article 100, paragraph 1, of the Charter, which
provides:
"In the performance of their duties the Secretary-General and the staff
shall not seek or receive instructions from any government or from any other
authority external to the Organization. They shall refrain from any action
which might reflect on their position as international officials responsible
only to the Organization."
The Court holds:
"His [Mr. Yakimetz's] argument rests on the following premises: that the
Secretary-General believed that he could not give the Applicant any further
employment whatever without the consent of his former national Government;
that the Tribunal found that this was the Secretary-General's belief; that
that belief was wrong as a matter of law; and that the Tribunal failed to
find that it was wrong in law. The Court however does not consider either
that the Tribunal found the existence of the belief attributed to the
Secretary-General, or that the Tribunal found that such a belief was or
would have been correct.[p 125] In view of the nature of the decision
actually taken by the Tribunal on the facts of the case, it does not appear
necessary to consider the matter further." (Para. 77.)
In my view, the Court's terse interpretation of Article 100, paragraph 1, as
it applies to the current case, is unduly confining. It fails to take
account of the import for this case of the second sentence of Article 100,
paragraph 1. And it is difficult to reconcile with the construction of
Article 100 which the Court rightly adopted in its Advisory Opinion on
Reparation for Injuries Suffered in the Service of the United Nations.
It may be recalled that, in that landmark decision, the Court held that the
United Nations has the capacity to bring an international claim in respect
of the damage caused to the victim, its agent. In the course of the
proceedings, Mr. G. G. Fitzmaurice of the United Kingdom argued for a
liberal construction of Article 100 of the Charter in the following terms:
"In its written statement the United Kingdom Government has suggested that
the requisite basis may be found in Article 100 of the Charter which creates
a special relationship of international allegiance between the Organization
and its servants. This, it is suggested, does forge between the
Organization and its servants a link going beyond the ordinary relationship
of master and servant, and which may provide the necessary basis for claims
made by the Organization on behalf of the servants themselves in respect of
the damage done to them.
If we follow the argument out, I think we shall see how this comes about.
The special allegiance partially displaces the normal allegiance owed by
individuals to their national State, and, in all matters affecting the
United Nations, replaces it by an allegiance due exclusively to the
Organization. Thus, where the servant concerned suffers injury in the course
of doing the work of the Organization, in respect of which his allegiance is
owed solely to the Organization, and even, if necessary, as against his own
national State, it seems not only an appropriate, but even a necessary
consequence of this position, that the Organization should be regarded as
having the capacity to make a claim in respect of the loss or damage caused
to him or his dependents.
Indeed, one might go further and say that the effect of Article 100 of the
Charter is that the Members of the United Nations can be regarded as having
implicitly recognized that such capacity must exist if the Organization is
to be in a position adequately to carry out its functions. The point may be
illustrated by considering the case of a United Nations servant who is
required in the course of his work to do something which his own national
State disapproves of [p 126] or considers to be contrary to its own
interests. If he suffers injury in the course of doing this, it is then very
possible that his national State will refuse to make any claim on his
behalf, or will, at any rate, not feel called upon to do so. Consequently,
unless the Organization itself be regarded as having the capacity to make
claims on behalf of these persons, and in respect of the loss or damage
caused to them, there will exist a lack of adequate protection, a position
which may be prejudicial to the good functioning of the Organization,
because if United Nations servants feel that they cannot look to the
Organization for protection if they suffer injury in carrying out their
duties, and that they must look, if at all, to their own national State for
protection, their allegiance is liable, to that extent, to be divided, and
the work of the Organization to suffer in consequence. This is precisely the
situation which it was the intention of Article 100 of the Charter to guard
against, and the Members of the United Nations must be considered as having
recognized this fact. To put the matter in another way, the capacity of the
Organization to make a direct claim on behalf of its servants in respect of
injuries suffered by them in the course of performing their duties, is
really the necessary complement to or, as it were, the opposite facet of the
exclusive allegiance owed by them to the Organization; for you cannot ask a
man to be faithful solely to an international organization in doing his
work and even as against his own national State, and yet expect him to
remain solely dependent on that State for protection in case he suffers
injury in the course of doing this same work — especially when ... he may be
placed in especial danger by the very nature of this work. Such a position
would be obviously contrary to the principle enshrined in the Charter, and
clearly inherent in the very conception of the United Nations, that the
Organization and its servants should function independently of all
consid-erations of nationality: because, if they ought to do so, then they
must also be enabled to do so, that is to say the Organization must have
such capacities as are necessary to bring this about, or, if you prefer it,
must not lack capacities in the absence of which this independence may be
prejudiced." (I.C.J. Pleadings, Oral Arguments, Documents, Reparation for
Injuries Suffered in the Service of the United Nations, 1949, pp. 123-124.)
The Court responsively construed Article 100 of the Charter in the
following way:
"Having regard to its purposes and functions already referred to, the
Organization may find it necessary, and has in fact found it neces-[p
127]sary, to entrust its agents with important missions to be performed in
disturbed parts of the world. Many missions, from their very nature, involve
the agents in unusual dangers to which ordinary persons are not exposed. For
the same reason, the injuries suffered by its agents in these circumstances
will sometimes have occurred in such a manner that their national State
would not be justified in bringing a claim for reparation on the ground of
diplomatic protection, or, at any rate, would not feel disposed to do so.
Both to ensure the efficient and independent performance of these missions
and to afford effective support to its agents, the Organization must provide
them with adequate protection.
………………………………………………………………………………………………
For this purpose, the Members of the Organization have entered into certain
undertakings, some of which are in the Charter and others in complementary
agreements. The content of these undertakings need not be described here;
but the Court must stress the importance of the duty to render to the
Organization 'every assistance' which is accepted by the Members in Article
2, paragraph 5, of the Charter. It must be noted that the effective working
of the Organization — the accomplishment of its task, and the independence
and effectiveness of the work of its agents — require that these
undertakings should be strictly observed. For that purpose, it is necessary
that, when an infringement occurs, the Organization should be able to call
upon the responsible State to remedy its default, and, in particular, to
obtain from the State reparation for the damage that the default may have
caused to its agent.
In order that the agent may perform his duties satisfactorily, he must feel
that this protection is assured to him by the Organization, and that he may
count on it. To ensure the independence of the agent, and, consequently, the
independent action of the Organization itself, it is essential that in
performing his duties he need not have to rely on any other protection than
that of the Organization (save of course for the more direct and immediate
protection due from the State in whose territory he may be). In particular,
he should not have to rely on the protection of his own State. If he had to
rely on that State, his independence might well be compromised, contrary to
the principle applied by Article 100 of the Charter. And lastly, it is
essential that — whether the agent belongs to a powerful or to a weak State;
to one more affected or less affected by the complications of international
life; to one in sympathy or not in sympathy with the mission of the agent —
he should know that in the performance of his duties he is under the
protection of the Organization. This assurance is even more necessary when
the agent is stateless." (I.C.J. Reports 1949, pp. 183-184; emphasis added.)
It was observed years ago of this holding of the Court that:[p 128]
"The breadth of the Court's construction of Article 100 is instructive. The
Court was prepared to hold, as in fact it did, that in the relatively
unlikely event of an agent of the Organization being injured in the course
of his duties in circumstances involving the responsibility of a State, or,
rather, in the contingency of the agent's anticipating the possibility of
the occurrence of such an event, his independence might be compromised
unless he were able to rely upon the very limited protection afforded by
the presentation of a monetary claim post facto, not by his State, but
rather by the Organization. This atti-tude of the Court is of importance for
its possible approach to a less indirect encroachment upon Article 100." (S.
M. Schwebel, "The International Character of the Secretariat of the United
Nations", XXX The British Year Book of International Law (1953), p. 82.)
Is there not a more direct encroachment upon Article 100 in the
Administrative Tribunal's disposition of the Yakimetz case? If the
Secretary-General believed, as the evidence uniformly indicates that he did
believe, that Mr. Yakimetz could not be considered for a career appointment
in the absence of the consent of the USSR Government, and if, as it did, the
Administrative Tribunal failed so to find despite the evidence requiring
that finding, those errors may, in my view, be seen as errors "relating to"
Article 100, paragraph 1, of the Charter. Error did not consist of the
Secretary-General's seeking or receiving instructions from the Government of
the USSR in violation of the first sentence of that paragraph; consequently,
there is no error of the Tribunal in failing so to hold. But if, under a
misapprehension about the weight to attach to the lack of consent of the
Soviet Union to a career appointment for Mr. Yakimetz, the Secretary-General
gave that Soviet position determinative weight, then the Secretary-General
did not merely commit an error of law. He failed to fulfil his obligation
under the second sentence of Article 100, paragraph 1, to "refrain from any
action which might reflect" on his position as an international official
"responsible only to the Organization", because, in effect, he ceded
responsibility in this respect to a "government or . . . other authority
external to the Organization". Therein lies the error relating to a Charter
provision. In my view, this conclusion is consistent both with the facts, in
so far as the facts have been placed before the Court, and with the law, in
the construction of it earlier made by the Court in the Reparation for
Injuries Suffered in the Service of the United Nations case. It is equally
consonant with Judgement No. 431 of the Administrative Tribunal of the
International Labour Organisation, In re Rosescu. The failure of the
Administrative Tribunal to assign this error constitutes an error of law
relating to a provision of the Charter.[p 129]
The Question of Whether a State May Lawfully Require that All of Its
Nationals Engaged by the United Nations Be Seconded
The Court's opinion does not do more than to allude to the rights and duties
of a State in respect of its nationals who are seconded for service in the
United Nations Secretariat, though this is a question which was argued in
the course of the proceedings. In this regard, two observations may be
made. The first is that, as the Government of Canada rightly submitted in
its written statement:
"the only interpretation of secondment that is consistent with the terms of
the Charter is that in such an arrangement an individual makes his services
available to the U.N. Secretariat, while the member State concerned grants
the individual a right to return to his previous employment. Any
interpretation that seeks to provide member states with a veto power over
any staffing decision of the Secretary-General is contrary to the Charter.
The Secretary General undoubtedly has a legitimate interest in consulting
with member states on staff appointments in the interests of securing the
highest standard of efficiency, competence and integrity, or to seek out
staff to improve the geographical distribution of employees in the
Secretariat. Indeed, the relationship of an employee with his or her country
of nationality may be a factor in determining the extent to which an
individual fulfills the requirements of Article 101. The views of the
member state, in this regard, may be a relevant factor but cannot be the
sole criterion in decisions of the Secretary General with respect to
secondments.
If the appointment or re-appointment of an employee were refused solely for
want of the consent of the country of the employee's nationality, or indeed
of any other member state, such decision would be contrary to Articles 100
and 101 of the U.N. Charter."
The second observation is that it is difficult to reconcile with the
Charter the policy pursued by certain States of Eastern Europe in requiring
that 100 per cent of their nationals appointed to the Secretariat of the
United Nations have fixed-term contracts (the Report of the
Secretary-General on the Composition of the Secretariat, A/41/627 of 27
September 1986, pp. 31-35, shows that, whereas 100 per cent of the nationals
of the Soviet Union are on fixed-term contracts, 32 per cent of China's,
18.5 per cent of France's, 14 per cent of the United Kingdom's and 16.4 per
cent of the United States's nationals in the Secretariat serve on fixed-term
contracts). Does a United Nations Member which, by the terms of Arti-[p
130]cle 100, paragraph 2, of the Charter, "undertakes to respect the
exclusively international character of the responsibilities of the
Secretary-General and the staff and not to seek to influence them in the
discharge of their responsibilities" fulfil those obligations when it
requires that all of its nationals serving in the Secretariat be seconded
from its Government service? Can it be supposed that such nationals are
well-placed to fulfil their obligation not to "seek or receive instructions
from any government or any authority external to the Organization" and to
"refrain from any action which might reflect on their position as
international officials responsible only to the Organization"?
In view of these considerations, the recommendation contained in the report
of the "Group of 18" that "no more than 50 per cent of the nationals of any
one Member State employed by the United Nations should be appointed on a
fixed-term basis" is to be welcomed. (Report of the Group of High-Level
Inter-Governmental Experts to Review the Efficiency of the Administrative
and Financial Functioning of the United Nations, GAOR, Forty-first Session,
Supplement No. 49, A/41/49, p. 22.) Also to be welcomed, if for
distinguishable reasons, is the judgment on 8 April 1986 of the United
States District Court for the Eastern District of Pennsylvania in Hinton v.
Devine (Civ. No. 84-1130), declaring unconstitutional the International
Organizations Employees Loyalty Program instituted pursuant to US Executive
Order No.10422 of 9 January 1953. It is reported that the United States
Government has decided not to appeal that judgment and that it has suspended
the investigative programme of Executive Order No. 10422. (See Mark A. Roy,
"U.S. Loyalty Program for Certain UN Employees Declared Unconstitutional",
80 American Journal of International Law (1986), p. 984.)
I believe that the observations of the late Secretary-General of the United
Nations, Dag Hammarskjold, on the question of secondment remain as valid
today — in their legal as well as political conclusion — as they were when
he set them out in a famous Lecture delivered to Con-gregation at Oxford
University on 30 May 1961:
"A risk of national pressure on the international official may also be
introduced, in a somewhat more subtle way, by the terms and duration of his
appointment. A national official, seconded by his government for a year or
two with an international organization, is evidently in a different position
psychologically — and one might say, politically — from the permanent
international civil servant who does not contemplate a subsequent career
with his national [p 131] government. This was recognized by the Preparatory
Commission in London in 1945 when it concluded that members of the
Secretariat staff could not be expected 'fully to subordinate the special
interests of their countries to the international interest if they are
merely detached temporarily from national administrations and dependent upon
them for their future'. Recently, however, assertions have been made that it
is necessary to switch from the present system, which makes permanent
appointments and career service the rule, to a predominant system of
fixed-term appointments to be granted mainly to officials seconded by their
governments. This line is prompted by governments which show little
enthusiasm for making officials available on a long-term basis, and,
moreover, seem to regard — as a matter of principle or, at least, of
'realistic' psychology — the international civil servant primarily as a
national official representing his country and its ideology. On this view,
the international civil service should be recognized and developed as being
an 'intergovernmental' secretariat composed principally of national
officials assigned by their governments, rather than as an 'international'
secretariat as conceived from the days of the League of Nations and until
now. In the light of what I have already said regarding the provisions of
the Charter, I need not demonstrate that this conception runs squarely
against the prin-ciples of Articles 100 and 101.
This is not to say that there is not room for a reasonable number of
'seconded' officials in the Secretariat. It has in fact been accepted that
it is highly desirable to have a number of officials available from
governments for short periods, especially to perform particular tasks
calling for diplomatic or technical backgrounds. Experience has shown that
such seconded officials, true to their obligations under the Charter,
perform valuable service but as a matter of good policy it should, of
course, be avoided as much as possible to put them on assignments in which
their status and nationality might be embarrassing to themselves or the
parties concerned. However, this is quite different from having a large
portion of the Secretariat — say, in excess of one-third — composed of
short-term officials. To have so large a proportion of the Secretariat staff
in the seconded category would be likely to impose serious strains on its
ability to function as a body dedicated exclusively to international
responsibilities. Especially if there were any doubts as to the principles
ruling their work in the minds of the governments on which their future
might depend, this might result in a radical departure from the basic
concepts of the Charter and the destruction of the international civil
service as it has been developed in the League and up to now in the United
Nations."[p 132](The International Civil Servant in Law and in Fact, Oxford
at the Clarendon Press, 1961, pp. 17-19.)
The Possibility of Hearings in this Class of Case
As the Court's Opinion records, hearings in this case were not held, a
decision which was the more understandable because neither the
Secretary-General nor Mr. Yakimetz requested oral argument. Had hearings
taken place, however, it may be that certain significant factual
uncertain-ties might have been resolved. At all events the Court could have
decided to hold hearings in this case and is at liberty to do so in future
such cases. A matter which has been the subject of some misunderstanding
has, I believe, been usefully clarified by the following statement of the
Secretary-General:
"One of the objections against the present system of review by ICJ advisory
opinions is the truncated Court procedure foreseen. Because no way was seen
for individual applicants to appear through counsel in oral proceedings in
the Court, the General Assembly, in the resolution by which it adopted
article 11 of the UNAT statute (957 (X), para. 2), recommended that neither
States nor the Secretary-General seek to present oral statements in such an
ICJ proceeding. The Secretary-General and all interested States have so far
complied with this request, but unease has been expressed that this does
vio-lence to the judicial procedures of the Court, that in some cases a
hearing may be necessary for the proper presentation of a case and that the
entire procedure is thus at the mercy of any State that might insist on its
right to make an oral statement under article 66 (2) of the ICJ Statute
(which would result in the type of inequality of arms vis-à-vis the
applicant that would almost surely cause the Court to abort the proceeding).
However, this entire procedural limitation appears to be unnecessary. Under
article 11 (2) of the UNAT statute, the Secretary-General is obliged to
transmit to the Court the views of the applicant in the Tribunal proceeding
as to which the Court's opinion was requested. In the 'appeals' so far
brought to the Court under UNAT statute article 11 and the one brought
under ILOAT statute article XII, the applicant's views were presented to the
Court by having the exe-
[p 133] cutive head concerned (respectively the United Nations
Secretary-General and the UNESCO Director-General) forward directly,
without any editing or censorship, all written communications received from
the applicant or his counsel. Precisely in the same way, if oral proceedings
were held, counsel selected by the applicant (and acceptable to the Court)
could be introduced as the Secretary-General's special representative to
express the applicant's views. With respect to this proposal the President
of the Court has indicated 'that the Court, which has stressed on several
occasions the maintenance of the principle of equality among the parties,
will continue to bear it in mind in determining its own procedure in each
particular case'.
Whether or not UNAT statute article 11 is maintained unchanged, or is
restricted to purely State-initiated proceedings ... or a new type of
reference to the Court is introduced . . . the General Assembly might
consider changing the recommendation in its resolution 957 (X) in the sense
indicated . . . This recommendation should be formulated broadly enough so
as also to apply to reviews sought under article XII of the ILOAT statute."
(Report of the Secretary-General on the feasibility of establishing a single
administrative tribunal, A/C.5/397, paras. 88-90.)
(Signed) Stephen M. Schwebel.
[p 134]
Dissenting opinion of judge sir Robert Jennings
I regret that I have been unable to agree with the Court on the second
question put to the Court for its advisory opinion, and therefore am under
some obligation to explain why I see this case differently. Before turning
to the substance of the matter, however, I wish to make some observations
upon the form in which questions are put to the Court, not only in the
present case but also generally in this kind of review case.
The Role of the Committee on Applications for Review of Administrative
Tribunal Judgements
Not a little of the difficulty of dealing with this kind of case is that
specific problems arising from the particular situation of an individual,
whether he be the Applicant or not, appear before this Court in the form of
questions of a general, abstracted and conceptual nature. This seems to be
the consequence of the provisions of the UNAT Statute, and the Applications
Committee's view of its role. Article 11 of that Statute, in the
immediately relevant sections, provides as follows:
"1. If a Member State, the Secretary-General or the person in respect of
whom a judgement has been rendered by the Tribunal (including any one who
has succeeded to that person's rights on his death) objects to the judgement
on the ground that the Tribunal has exceeded its jurisdiction or competence
or that the Tribunal has failed to exercise jurisdiction vested in it, or
has erred on a question of law relating to the provisions of the Charter of
the United Nations, or has committed a fundamental error in procedure which
has occasioned a failure of justice, such Member State, the
Secretary-General or the person concerned may, within thirty days from the
date of the judgement, make a written application to the Committee
established by paragraph 4 of this article asking the Committee to request
an advisory opinion of the International Court of Justice on the matter.
2. Within thirty days from the receipt of an application under paragraph 1
of this article, the Committee shall decide whether or not there is a
substantial basis for the application. If the Committee decides that such a
basis exists, it shall request an advisory opinion of the Court, and the
Secretary-General shall arrange to transmit to the Court the views of the
person referred to in paragraph 1."[p 135]
Thus, paragraph 1 of Article 11 of the UNAT Statute sets out four grounds of
objection, each of which may justify reference to this Court:
"that the Tribunal has exceeded its jurisdiction or competence; or that the
Tribunal has failed to exercise jurisdiction vested in it, or has erred on a
question of law relating to the provisions of the Charter of the United
Nations; or has committed a fundamental error in procedure which has
occasioned a failure of justice".
Article 11.1, however, is not a list of the kinds of questions that may be
asked of the Court; it is a list of the grounds for a valid objection to a
judgement of the Tribunal, by "a Member State, the Secretary-General or the
person in respect of whom a judgement has been rendered by the Trib-unal".
In order to comprehend within a short provision all the permissible grounds
for challenging a judgement, it was obviously necessary for the draftsman of
the Article to express those grounds of objection in general terms (as does
the comparable Statute of the ILO Administrative Tribu-nal). There was no
other way it could have been done.
What then is the Committee's role when an objection to a judgement of the
Tribunal comes before it? This is stated in paragraph 2 of the same Article,
namely to "decide whether or not there is a substantial basis for the
application". Presumably this means that, provided that the application
raises one or more of the valid grounds of legal challenge set out in 11.1,
the Committee must then decide whether the case is important enough, and
sufficiently substantiated by the evidence, to justify being referred to the
International Court of Justice. Such an assessment is appropriate for an
essentially political body like the Committee. It is more doubtful whether
it is also part of the task of the Committee to determine whether the
Applicant's objection or objections to the Tribunal's Judgement properly
fall within the particular categories of Article 11.1 in which he himself
has expressed them. That is, ultimately at least, the task of this Court;
furthermore, being an essentially juridical task and a technically difficult
one at that, it would be a curious task for a committee whose procedures are
neither judicial nor even quasi-judicial in character.
However that may be, the present questions seem to exhibit a tendency to
assume that the questions to be put to this Court should themselves be
couched in, or very nearly couched in, the language of one or more of the
categories of grounds of valid objection set out in Article 11.1. The
grounds of objection, expressed inevitably in the most general terms, have
thus become in practice the language of permissible questions to the Court.
It is rather as if, to take an analogous series of grounds of jurisdiction,
an applicant to the Court's contentious jurisdiction under para-graph 2 of
Article 36 of the Court's Statute were to assume that his case must not only
fall within that provision, but that his submissions should [p 136] finally
be reduced to the actual language of the famous list in that paragraph of
Article 36.
The effect of this interpretation of Article 11 is that questions are put to
this Court, not in the terms of the applicant's specific grievance, but in
abstract and conceptual terms of the list of grounds of objection in
Article 11.1. This manner of proceeding can easily transform a simple
grievance into a jurisprudential problem of some complexity and doubt. It
is instructive to read the record of the public session of the Committee in
the present case, where Mr. Rosenstock of the USA (A/AC.86/XXIV/PV. 5 at p.
11) said, speaking of the first question put to the Court:
"To those of us from the common-law tradition it appears more clearly to be
a failure to exercise jurisdiction. To those from the civil-law tradition
the failure apparently amounts more obviously to a procedural error
occasioning a denial of justice. We believe both perceptions lead to the
same conclusion."
It seems permissible to ask why it should have been thought necessary for
the Committee, where the Applicant has himself pleaded both these grounds,
to choose one and reject the other, thus pre-empting what is surely a matter
more suitable for determination by this Court — and no less so if in fact
they might each lead to the same conclusion. There is a further danger: that
the Applicant's grievance, when thus distilled to produce the pure
jurisprudential spirit of Article 11, can finally be found to have no more
than a tenuous and frangible connection with the grievance the case is
actually about; as will indeed be seen shortly when we look at the first
question in the present case.
The Task of the Court
In the present case the Applicant himself objected to the Tribunal's
Judgement on each and all of the four grounds of objection stated in
Article 11.1. The Committee, in deciding whether the Applicant's case
showed a "substantial basis for the application", drafted two questions to
the Court, by which in effect two of the Applicant's grounds for his
application were struck out, and so two remained. There can be no doubt,
however, that the Court's task, in giving an advisory opinion, is to give an
answer to the two questions as they have been put to the Court by the
Committee.
In order to answer the questions asked, the Court has to examine both the
Judgement of the Tribunal and the pleadings before it, as well as the [p
137] arguments put directly to this Court by the Applicant and the
Respondent. Indeed, its role was put in wider terms in the Fasla case
(I.C.J. Reports 1973, p. 188, para. 47):
"Its role is to determine if the circumstances of the case, whether they
relate to merits or procedure, show that any objection made to the Judgement
on one of the grounds mentioned in Article 11 is well founded."
From this passage it would seem that the decision of the Committee to select
only certain of the grounds alleged by the Applicant, was indeed a work of
supererogation. However that may be, it is made very clear in the
immediately following passage, that:
"In so doing, the Court is not limited to the contents of the challenged
award itself, but takes under its consideration all relevant aspects of the
proceedings before the Tribunal as well as all relevant matters submitted to
the Court itself by the staff member and by the Secretary-General with
regard to the objections raised against that judgement. These objections the
Court examines on their merits in the light of the information before it."
In order to give an advisory opinion the Court must therefore look to the
juridical issues involved in the two questions upon which its advice has
been requested. As the Court said in the Interpretation of the Agreement of
25 March 1951 between the WHO and Egypt case,
"The Court points out that, if it is to remain faithful to the requirements
of its judicial character in the exercise of its advisory jurisdiction, it
must ascertain what are the legal questions really in issue in questions
formulated in a request." (I.C.J. Reports 1980, p. 88, para. 35.)
What then are the legal questions really in issue in this case?
The "Legal Questions Really in Issue" in the Present Case
There can be little doubt what is the main legal question really in issue in
the present case; it is whether the Tribunal was right or wrong in law in
holding that, on the evidence before it, the Respondent had, in accordance
with resolution 37/126, section IV, paragraph 5, given "every reasonable
consideration" to the Applicant as a candidate for a career appointment?
Indeed, the Comments made by the Respondent himself to the Committee on
Applications (A/AC.86/R.118) said,
"the dispute between the parties is essentially whether the Applicant [p
138] was given 'every reasonable consideration' for a career appointment
pursuant to General Assembly resolution 37/126, section IV, paragraph 5".
But the procedures just examined resulted in an attempt to embody this issue
in two questions formed from the wording of two of the grounds of objection
taken from Article 11.1 of the Tribunal's Statute. In this way, a simple and
narrow point of law is transformed into two questions at a high level of
abstraction, and involving juridical concepts of no little difficulty. In
this way also the Applicant's simple grievance has been transformed into
questions which per se, and independently of the Applicant's grievance,
raise matters upon which differences of opinion are not only possible but
likely. The Court thus finds itself in an unenviable position. It can see
the main point of the case very clearly, but is asked nevertheless to
attempt to answer these different questions, which may indeed be said to
arise from the Applicant's grievance, but also present quite different and
more difficult problems. It is entirely possible to have a clear view on the
main point of the case, yet be extremely doubtful on the answers to be given
to the questions in the form in which they are put to the Court for
resolution. Take, for example, the first question asked of the Court,
whether the Tribunal "failed" to exercise its jurisdiction in regard to the
matter of a "legal impediment". After anxious contemplation of the
kaleidoscopic changes in the appearance of this teasing question, according
as to whether one sees it one way or another, it becomes after a time
tolerably clear that, even though the existence or not of a legal impediment
is highly relevant to the second question, it is quite possible to give
either a positive or alternatively a negative answer to the first question,
irrespective of what is concluded to be the right answer to the second
question. The first question must nevertheless be answered one way or
another, and to this we may now turn.
**
The First Question Asked of the Court
"(1) In its Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the United
Nations Administrative Tribunal fail to exercise jurisdiction vested in it
by not responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 1983?"
One can appreciate why the first question was constructed around the matter
of a legal impediment ; whether there existed a legal impediment — in the
sense of a legal bar — to the further employment of the Applicant in a
career appointment is central to the interpretation of the Respondent's [p
139] correspondence with the Applicant in late 1983; which again is central
to the answer to be given to the second question. All three members of the
Tribunal were apparently in agreement that there might have been legal
impediments to the further employment of the Applicant by way of extension
or renewal of a fixed-term appointment. The question is, was there a legal
impediment to the further employment of the Applicant by way of a new career
appointment? Here opinions have been divided. Mr. Ustor went out of his way
to emphasize that in his opinion there was still an impediment because the
agreement of the seconding government was needed even for a career
appointment. Mr. Kean was clear that there was no legal impediment. The
Respondent himself, in his pleadings before this Court, is now entirely
clear that there was not only no legal impediment but that he had indeed
given the matter of a career appointment "every consideration".
It might be thought that the Tribunal's Judgement is less than perspicuous
on this question of a legal impediment. In fact it is not easy, even after
careful study of the text, to collect from it any clear, unambiguous view on
the matter, even though there are several passages that touch on it. It is
interesting to note, however, that the Committee on Applications, judging by
its wording of the first question, was simply assuming as beyond argument
that the Tribunal failed to deal with the question of a legal impediment;
and moreover that the Respondent himself seemingly has no doubts about the
Tribunal's failure to deal with the question of the legal impediment. In his
written statement to this Court he makes it plain that in his opinion the
Tribunal's Judgement did not address the question of a legal impediment to
a further appointment; and he attempts to explain this omission by arguing
that the matter was not an issue between the parties before the Tribunal,
because the Respondent had himself conceded that there was indeed no legal
impediment to a career appointment. So, in paragraph 58 he states that this
question:
"was ... not at issue between the parties ... because the Respondent
indicated to the Tribunal that he did 'not dispute that it was within the
Secretary-General's authority and discretion to re-appoint the Applicant
after the expiry of his contract'. Consequently, there appears to have been
no call for the Tribunal to have dealt with this question explicitly." (See
also paras. 80 ff., which summarize the Respondent's conclusions on Question
1.)
It is evident, therefore, that the Respondent himself by no means agrees
with the ultramontane views of Mr. Ustor on this question. Yet the
Respondent's concession before the Tribunal, and before this Court, that in
his view there was no legal impediment does not dispose of the point; the
significant question — which we shall examine below — is whether the [p 140]
Respondent's dealings with Mr. Yakimetz himself display a sufficient
awareness at that time that there was no legal impediment to a further
employment of the Applicant by way of a career appointment.
But the first question as it is put to the Court is not itself directly
coupled with these questions of substance. Having been pressed into the
conceptual language of Article 11.1 of the Tribunal's Statute, it emerges
as an inquiry whether the Tribunal's alleged lack of a clear, explicit
decision on this point, amounts to a "failure to exercise the jurisdiction
vested in it". To pursue this question is to be side-tracked into a
different inquiry peripheral to the central issue. The members of the
Tribunal were obviously aware of the point about a legal impediment, for
otherwise it is difficult to see why Mr. Ustor, though forming part of the
majority, felt it necessary to make a separate declaration manifestly
intended to go further than the Tribunal's Judgement on this very point.
Whether the Judgement's lack of a readily identifiable and quotable
pronouncement on the matter amounts to a "failure to exercise the
jurisdiction vested in it", is an academic question on which opinions might
differ irrespective of the view held on the main point of substance. What is
clear is that there is absolutely no need to pursue this academic by-road in
order to arrive at a solution of the main point of the case.
Accordingly, I have been content to agree, or at any rate not to disagree,
with the Court's opinion on this question, and will pass now on to the
second question.
**
The Second Question Asked of the Court
"(2) Did the United Nations Administrative Tribunal, in the same Judgement
No. 333, err on questions of law relating to the provisions of the Charter
of the United Nations?"
The relevant provisions of the Charter are to be found in Chapter XV, and in
Articles 100 and 101; but these Charter provisions lay down general
principles. They are not expressed in self-executing language, but need to
be implemented by the Staff Regulations and Rules, and indeed by the
jurisprudence of the Administrative Tribunals acting under the terms of
their statutes. Moreover it is clear from the preparatory work of the UNAT
Statute that
"The words 'relating to the provisions of the Charter' covered not only
interpretations of the provisions of the Charter but also the interpretation
or application of staff regulations deriving from [p 141] Chapter XV of the
Charter" (statement on behalf of the sponsors of the text; see
A/AC.78/SR.10, p. 3, and also I.C.J. Reports 1982, p. 469).
There must also be included in this corpus of applicable law the General
Assembly's decision in paragraph 5, section IV, of resolution 37/126, which
the Respondent acknowledges to have been binding on him at the material
time. The question is, therefore, whether the Tribunal in its Judgement No.
333, erred in interpreting and/or applying the relevant parts of this body
of law to the facts of the present case? In so adjudging the Court is
entitled to render an opinion which "is to have a conclusive effect with
regard to matters in litigation in that case" before the Adminis-trative
Tribunal (I.C.J. Reports 1973, p. 182, para. 39).
It will be convenient first to consider two provisions of the Charter which
have been prominent in the Applicant's arguments both before the Tribunal
and before this Court: Article 101, paragraph 1:
"The staff shall be appointed by the Secretary-General under regulations
established by the General Assembly",
and Article 101, paragraph 3:
"The paramount consideration in the employment of the staff and in the
determination of the conditions of service shall be the necessity of
securing the highest standards of efficiency, competence, and integrity. Due
regard shall be paid to the importance of recruiting the staff on as wide a
geographical basis as possible."
This paramount consideration appears again in Regulation 4.2 of Article IV
of the Staff Regulations:
"The paramount consideration in the appointment, transfer or promotion of
the staff shall be the necessity for securing the highest standards of
efficiency, competence and integrity. Due regard shall be paid to the
importance of recruiting the staff on as wide a geographical basis as
possible."
The correct procedures for giving effect to Staff Regulations are to be
found in the Staff Rules; where relevant Staff Regulations are set out, as
the governing principles, in the rubric to the relevant chapter of the
Rules. Thus Regulation Article IV appears as the rubric of corresponding
Chapter IV of the Rules, which is entitled "Appointment and Promotion". But
Rule 104.14 (a) (ii) refers not only to Regulation 4.2, but also back to
Article 101, paragraph 3, of the Charter itself thus demonstrating how these
provisions of the Charter, the Staff Regulations and the Staff Rules, belong
to each other and form a single corpus of law. This Staff [p 142] Rule
104.14 (a)(ii) also incorporates a related Rule, established in Regulation
4.4, and which is clearly conceived as part of the governing, "paramount"
principle, according to which, where qualifications are equal, preference
shall be given to staff members already in the secretariat or in other
international organizations.
To these Staff Regulations and Rules must be added General Assembly
resolution 37/126, section IV, paragraph 5, which is clearly made in
further implementation of this same paramount principle, and binding upon
the Respondent as he has readily conceded, and reads as follows:
"5. Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment."
Having assembled the Charter provision Article 101.3 together with the
Regulations, Rules, and the resolution which look to its implementation, we
may now turn to the question whether the Tribunal erred on a question or
questions of law relating to it.
**
As concerns paragraph 1 of Article 101 of the Charter, it is entirely clear
that it is the Secretary-General, under the appropriate regulations, to whom
alone is given the competence to appoint staff. The decision in a particular
case is in his discretion and subject to his judgment of the matter. Neither
the Tribunal, nor this Court, may usurp that discretion. It was without
doubt for the Secretary-General to decide whether to give further employment
to Mr. Yakimetz or not.
Yet this discretion must be exercised within and in conformity with
"regulations established by the General Assembly", and any failure to
conform to the legal requirements of the exercise of the discretion is a
matter which comes within the jurisdiction of the Tribunal, and where
accordingly it is possible that the Tribunal in its Judgement may commit an
error relating to the provisions of the Charter, which error is subject to
review and reformation by this Court. Is there then, in the case of Mr.
Yakimetz, evidence of any such failure to act in accordance with the corpus
of Charter law and derivatory regulations adopted by the General Assembly;
and if so did the Tribunal's Judgement err in not detecting such a failure?
This is the question to which this Court has to address itself.
First it is necessary to dispose of the argument that the effect of
paragraph 3 of Article 101 — certainly a provision of the greatest possible
importance for the efficiency and integrity of the United Nations staff —
has the effect that a person with reports indicating that he has displayed
the highest standards of efficiency, competence and integrity, can hardly [p
143] be refused further employment. Thus the Applicant, in his letter of 13
December to the Secretary-General, avers that:
"To deny me the right to reasonable consideration for a career appointment
for any reason unrelated to merit — efficiency, competence, integrity —
would, I believe, be a violation of Article 100 [? 101] of the Charter."
This is to go too far (quite apart from the interpolation of the notion of
"merit", which does not appear in Article 101.3). Efficiency, competence and
integrity are surely a paramount consideration but this does not mean that
this is the only consideration permitted by the Charter; in fact the very
word "paramount" implies that there are other relevant and permissible
grounds. And if considerations other than efficiency, competence and
integrity, may sometimes have to be taken into acount besides the paramount
consideration, it must be assumed that there can be cases where
considerations other than the paramount consideration may prevail.
There remains, however, the single narrow point crucial for the
determination of this case; a point of mixed fact and law. Did Mr.
Yakimetz's candidature for a career appointment, Mr. Yakimetz having given
five years "excellent" service, receive "every reasonable consideration" as
the General Assembly's decision in paragraph 5 of section IV of resolution
37/126 requires? For this purpose it is now necessary once again to look at
the events against which this question must be judged.
The Background Events
The facts are stated systematically in the Court's Opinion (paras. 10 to
16), so there is no need in the present opinion to go over the same ground.
But for the purposes of this opinion I shall call attention to certain
facts, or alleged facts, and their inter-relation, which seem to me
essential for a proper comprehension of the crucial correspondence of the
latter part of 1983.
Mr. Yakimetz was at first employed by the United Nations in the language
service. It appears however that during 1980 the USSR authorities
recommended him for posts outside the language service. He was, inter alia,
put forward for a post in the Programme Planning and Co-ordination Office of
the Department of International Economics and Social Affairs (PPCO/DIESA),
where at the time there was only one national from a Socialist country
amongst over 30 professional posts. It appears (from the "Applicant's
Statement of Facts and Argument" before the Administrative Tribunal, of 3
January 1984, and not demurred to by the Respondent) that PPCO was reluctant
to take him on because the work required a specialized training and
therefore continuity in the work was essential.[p 144]
Nevertheless the Assistant Secretary-General for PPCO, Mr. Hansen (whose
later letters about the Applicant were to be so important) eventually tried
him out, partly with voluntary work undertaken at home or after office
hours. The upshot of all this was that, as soon as a post became vacant, in
September 1981, Mr. Hansen formally requested Mr. Yakimetz's transfer; at a
time when he had little more than a year to go of his existing fixed-term
contract. Mr. Hansen, finding Mr. Yakimetz's work excellent, and therefore
desirous of keeping him on, in September and October of 1982 discussed with
the chief of Personnel Services of the USSR Mission the possibility of a
two-year extension of the Applicant's fixed-term contract; but was advised
that "for technical reasons" it was easier to propose extensions of one year
at a time. So, the Department requested a year's extension — to 26 December
1983 — and this was in the event to prove Mr. Yakimetz's last appointment at
the United Nations. According to the Applicant's statement before the
Tribunal:
"While the new contract was being prepared, and the old contract was still
in force, the Applicant was told by his Mission that although they had
agreed to an extension, he must understand it was only so that the post
would be held for a Russian, and he would actually stay only until the
middle of the year."
In January 1983, Mr. Yakimetz was, again according to his own statement to
the Tribunal, told to take a vacation in Moscow in February in order to help
prepare a substitute candidate — who had already been selected — for his
United Nations post. It is a fact that the Applicant did request leave, but
was refused by Mr. Hansen because of pressure of work.
It was on 8 February that Mr. Hansen (see Court's Opinion, para. 11) wrote
to the Applicant indicating his intention of seeking an extension of his
contract (i.e., his existing fixed-term contract), and asking whether he
would be in a position to accept it. It was on 9 February, the day following
the date of this letter, that Mr. Yakimetz applied for asylum in the United
States. Then there is a short interval until 28 February when the Applicant
was notified by Mr. Sadry that the Secretary-General had decided to place
him "on special leave with full pay, effective 1 March 1983 and until
further notice". On 11 March, Mr. Sadry further conveyed to Mr. Yakimetz
the Secretary-General's decision "in the best interest of the Organization",
that "you do not enter the premises of the United Nations".
There must be some explanation for these stormy developments in respect of
an officer the reports on whose work continued to be glowing,[p 145] and who
enjoyed throughout the backing of his head of department, and who indeed was
promoted to P-5 during his banning from the United Nations premises. No
explanation appears in the documents or has been vouchsafed to the Court or
indeed to the Tribunal. But there are here no doubt matters which the
Respondent might have needed to be able to take into account, one way or the
other, in later decisions about the further employment of the Applicant. All
the Court can do is to note that, behind these dramatic events of February
and March 1983, there must be other considerations of which the Court cannot
have any knowledge.
Against this background we may now turn to the exchanges concerning the
possible further appointment of Mr. Yakimetz.
The Official Correspondence over Mr. Yakimetz
It is a curiosity of this case that although the Respondent, in his
pleadings before the Tribunal and before this Court, avers that he did give
every consideration to Mr. Yakimetz for a career appointment, in
contradistinction to the wholly different matter of a possible extension of
his fixed-term appointment, he is apparently unable or unwilling to provide
any evidence of when this was done, or of the reasons for his decision
resulting from this consideration. The only indications of what transpired
are in the various letters to or from the Applicant, or between officials
about him. Accordingly, it is essential to an understanding of this case, to
have an appreciation of the content of these letters; and of how they relate
to each other, because, for example, Mr. Negre's crucial letter of 21
December 1983 to Mr. Yakimetz, cannot be properly understood unless it is
appreciated that it is not only a reply to Mr. Yakimetz's letter of 13
December to the Secretary-General, but that part of Mr. Negre's actual
phraseology is taken from Mr. Yakimetz's letter. So it will be convenient
at this point to set out, in their chronological order, the important
passages. The aim of the present analysis, therefore, is to bring together
those letters which are directly concerned with the question of any further
appointment of the Applicant, so that their relationship to each other can
be appreciated.
The first of these letters was a letter of 8 February 1983 from Mr. Hansen,
Mr. Yakimetz's head of department, informing Mr. Yakimetz that Mr. Hansen
was minded to request an extension of Mr. Yakimetz's contract, "after your
current contract expires on 26 December 1983"; and asking whether Mr.
Yakimetz would be in a position to accept an extension of his contract.
The next is dated 29 October 1983, and is from Mr. Yakimetz to Mr. Hansen,
"through" Mr. Curzon, Chief of the Programme Planning Section. The subject
of the letter is "Extension of contract", and in it the [p 146]Applicant
expresses the hope that he may be recommended for "a further extension of my
contract with the United Nations, or even better a career appointment". Thus
the Applicant at a relatively early moment raised the alternative of a
career appointment and expressed a clear preference for it. This letter led
to a reply from Mr. Hansen of 8 November, saying that "from my perspective
as head of this Office, I find no difficulty in recommending a further
extension of your contract and intend to do so at an appropriate time". He
did not refer to the suggestion of a career appointment.
The Applicant must have been surprised therefore to receive the next letter
in the series: one of 23 November, from Mrs. Tsubota-Gruson, Deputy Chief,
Staff Service, which may be cited in full :
"Upon instruction by the Office of the Secretary-General, I wish to inform
you that it is not the intention of the Organization to extend your
fixed-term appointment beyond its expiration date, i.e., 26 December 1983."
The wording of this letter is important because it is referred to in later
letters from the Secretariat. It will be noted that it makes no reference
whatsoever to any consideration of, or decision about, a career appointment
for Mr. Yakimetz.
This provoked Mr. Yakimetz to write on 29 November to Mr. Nègre, Assistant
Secretary-General, Personnel Services; and this bringing of Mr. Nègre onto
the stage is important because it is Mr. Nègre's eventual reply that is the
key to the proper understanding of the case. In this letter, Mr. Yakimetz
refers to his having been informed by his head of department that he
intended to recommend him for an extension, asks to be told the reasons for
the decision not to grant an extension, and complains that the procedure
followed had been in any case "irregular and arbitrary and contravenes the
legal expectancy of renewal which I have as well as my acquired rights under
the General Assembly resolution 37/126, IV, paragraph 5" ; and he then
quotes paragraph 5 of section IV of that resolution.
As to the "procedure" followed, the next letter on the file is from Mr.
Hansen to Mr. Nègre, on 2 December, in which he says he has just become
aware of Mrs. Tsubota-Gruson's letter of 23 November, and goes on to add:
"I find it extraordinary that such a decision should be taken without
consulting the head of the Office concerned, especially in the case of an
officer with eleven years of excellent service to the Organization, who has
received a personal evaluation report with the highest rating only four
weeks ago, was promoted to the P-5 level and was elected Vice-Chairman of
the Appointment and Promotion Committee earlier this year and is currently
in the midst of important assign-[p 147]ments for one of which he is in
some ways uniquely well qualified and which are regarded as of considerable
importance by Member States. Bearing all these factors in mind I had assured
Mr. Yakimetz, shortly after signing his latest performance evaluation
report, that 1 intended to recommend a further extension of his contract."
Next, on 13 December 1983, Mr. Yakimetz wrote (the letter is signed by his
counsel but speaks in the person of the Applicant) to the Secretary-General
himself asking for a review of the administrative decision conveyed to him
in Mrs. Tsubota-Gruson's letter of 23 November. He refers to several staff
rules and regulations, and cites General Assembly resolution 37/126, IV,
paragraph 5, as well as his excellent performance report. Several paragraphs
of this letter are so important that they should be cited verbatim as it
appears in the documents submitted to the Court:
"General Assembly resolution 37/126, IV, paragraph 5, states that 'staff
members on fixed term contracts upon completion of five years of continuing
good service shall be given every reasonable consideration for a career
appointment'. Staff regulation 4.4 requires that... 'the fullest regard
shall be had, in filling vacancies, to the requisite qualifications and
experience of persons already in the service of the United Nations'. Staff
Rule 104.14 (a) (ii) says that 'subject to the criteria of Article 101,
para. 3, of the Charter, and to the provisions of staff regulations 4.2 and
4.4, the Appointment and Promotion Board shall, in filling vacancies,
normally give preference, where qualifications are equal, to staff members
already in the Secretariat. . .' Article 101 (3) of the Charter and staff
regulation 4.2 give as the 'Paramount consideration'... 'the necessity for
securing the highest standards of efficiency, competence and integrity'.
My Department has made it clear to me that in their view I have met those
standards. My performance was rated 'excellent' in my most recent
Performance Evaluation Report. I was recently promoted to P-5. I was given
to understand on many occasions, both verbally and in writing, that my
Department intended to recommend a further extension of my appointment or
conversion to a career position. The most recent assurance was a memorandum
to me dated 8 November 1983 from the Assistant Secretary-General for
Programme Planning and Co-ordination, who wrote: [p 148]
'From my perspective as head of this Office, I find no difficulty in
recommending a further extension of your contract and intend to do so at an
appropriate time.'
I understand that such a recommendation has been made. I have at all times
tried to govern my conduct in accordance with the letter and the spirit of
the Staff Rules and the terms and conditions of my contract with the United
Nations. My Performance Evaluation Report indicates that I enjoy harmonious
relationships with my colleagues. I was elected Vice-Chairman of the
Appointment and Promotion Committee earlier this year, a Chairman of the
Appointment and Promotion Committee earlier this year, a position of some
trust.
Given this service record and these assurances, and after six years of
continuous service, most staff members would have an expectancy that their
candidacy for a career appointment would be 'given every reasonable
consideration', as General Assembly resolution 37/126 IV requires. The
contested administrative decision appears to preclude such reasonable
consideration. The interests of good administration cannot be served by the
interruption of the work with which I have been entrusted by my Department.
I can think of no impediment to the forwarding of my name to the Appointment
and Promotion Board except factors extraneous to my performance. The quoted
General Assembly resolution places no restrictions as to eligibility, nor do
staff regulations 4.2 and 4.4 nor staff rule 104.14 (a) (ii). Extraneous
factors may not be used as a consideration in promotion, extension,
transfer or in any of the areas where the paramount consideration must be
the necessity of securing the highest standards of efficiency, competence or
integrity. Extraneous factors may not be used to deny a candidate for a post
fair and reasonable consideration, a position upheld in Tribunal Judgement
No. 310 (Estabial).
To deny me the right to reasonable consideration for a career appointment
for any reason unrelated to merit — efficiency, competence, integrity —
would, I believe, be a violation of Article 100 [? 101] of the Charter.
Therefore, I respectfully request that the Administrative decision be
withdrawn and my name forwarded to the appropriate Appointment and
Promotion body for reasonable consideration."
[p 149] It will be noted that the Applicant in this letter, whilst
protesting about and asking for a review of the decision conveyed to him in
Mrs. Tsubota-Gruson's letter of 23 November, is expressly asking to be
"given every reasonable consideration" for a career appointment, as
resolution 37/126 "requires"; and he refers twice to that resolution, and
also to Article 100 [? 101] of the Charter, though he leaves the reason for
this latter reference to be inferred.
Finally comes the most important letter of all, Mr. Negre's of 21 December
1983, to Mr. Yakimetz, which letter is the official answer to Mr. Yakimetz's
letter of 13 December to the Secretary-General. Let us recall that in that
letter Mr. Yakimetz had asked for a review of the decision conveyed on 23
November not to renew his fixed-term appointment; but had principally asked
for every consideration for a career appointment, twice quoting the terms
of resolution 37/126, IV, paragraph 5. Again the more pertinent of the
paragraphs of Mr. Negre's 21 December letter need to be cited verbatim:
"The Secretary-General has given careful consideration to the issues raised
in your request for administrative review dated 13 December 1983 (signed by
Ms. Diana Boernstein as your counsel), as well as in your earlier letter
dated 29 November 1983, in connection with the communication, dated 23
November 1983, that 'it is not the intention of the Organization to extend
your fixed-term appointment beyond its expiration date, i.e., 26 December
1983'."
In your letters, after referring to your service record and the evaluations
of your supervisors, you state that under such conditions 'most staff
members would have an expectancy that their candidacy for a career
appointment would be "given every reasonable consideration", as General
Assembly resolution 37/126 IV requires'.
Your situation, however, is not similar to that of 'most staff members'
with comparable service records, because your present contract was concluded
on the basis of a secondment from your national civil service. At the time
your present appointment was made your Government agreed to release you for
service under a one-year contract, the Organization agreed so to limit the
duration of your United Nations service, and you yourself were aware of that
arrangement which, therefore, cannot give you any expectancy of renewal
without the involvement of all the parties originally concerned.
Furthermore, you are serving under a fixed-term appointment, which, as
expressly provided in staff rule 104.12 (b) and reiterated [p 150] in your
letter of appointment, 'does not carry any expectancy of renewal or of
conversion to any other type of appointment'.
In view of the foregoing, the reasons advanced by you in your memorandum of
13 December do not require the Secretary-General to alter the decision
communicated to you by letter of 23 November 1983. That decision is
maintained and, therefore, the Secretary-General is not in a position to
agree to your request 'that the Administrative decision be withdrawn and
[your] name forwarded to the appropriate Appointment and Promotion body for
reasonable consideration' for career appointment."
In construing these words, Mr. Nègre's lumping together of the question of
a legal expectancy of an actual appointment — and all members of the
Tribunal and of this Court agree there was none — and the expectancy of
"every consideration" under resolution 37/126, which Mr. Yakimetz was saying
he was entitled to, need not detain us, though it should be noted and is not
without significance (and is important in Vice-President Kean's dissent).
The crucial point is that, in reply to Mr. Yakimetz's request for "every
consideration" for a career appointment, Mr. Nègre, speaking for the
Respondent, did not say, as the Respondent does now, that "every
consideration" had been given before coming to a comprehensive negative
decision. On the contrary, he seems clearly to be saying that because Mr.
Yakimetz was on secondment, it followed, "as you yourself were aware", that
he could not be considered for a career appointment "without the involvement
of all the parties originally concerned". I fail to see how this passage in
Mr. Nègre's letter can be construed in any other way. He is, after all,
picking up Mr. Yakimetz's own phrase, about the position of "most staff
members". Let us recall that, in Mr. Yakimetz's letter the phrase is, "most
staff members would have an expectancy that their candidacy for a career
appointment would be given 'every reasonable consideration', as General
Assembly resolution 37/126 IV requires" (emphasis added). Thus Mr. Nègre is,
in the passage about secondment difficulties and the organization's
agreement to limit the duration of Mr. Yakimetz's United Nations service,
replying specifically to Mr. Yakimetz's particular plea for "every
consideration" for a career appointment ; and Mr. Nègre is saying that,
unlike most staff members, he enjoys no expectancy of such consideration.
If there were any lingering doubt about this being what Mr. Nègre was
saying, he puts the matter beyond doubt in his paragraph to the effect that
[p 151] the reasons advanced by Mr. Yakimetz do not require any alteration
of the decision "communicated to you by letter of 23 November 1983". There
is, therefore, clearly stated to have been no further or other decision,
after that of 23 November concerning the fixed-term appointment; apparently
because of a belief that no further decision was possible, since Mr.
Yakimetz could not be considered for a career appointment. There is,
therefore, no suggestion that any consideration had been given to a career
appointment. On the contrary, the clear suggestion is that there could not
be; see also Mr. Nègre's concluding statement that the Secretary-General "is
not in a position to agree to" Mr. Yakimetz's request to forward his name
"to the appropriate Appointment and Promotion body for reasonable
consid-eration for career appointment". If there had in fact been any
"reasonable consideration" of a career appointment as such, Mr. Nègre would
surely have both said so, and also conveyed the decision, whatever it might
have been, resulting from it. The reason he did not is inescapable : no
consideration was given because it was believed in the administration, at
that time, that a career appointment could not legally be made without the
agreement of the USSR. In fact, at that time, the view of the Secretariat
appears to have coincided with the view later expressed by Mr. Ustor in his
separate declaration appended to the Tribunal's Judgement.
Mr. Yakimetz did, even after the commencement of the submission process,
apply once more for consideration for a career appointment, on 9 January
1984, having been encouraged to do so by the Respondent's spokesman, at his
press conference (see paras. 15 and 16 of the Court's Opinion). No
acknowledgement was ever made of this further application. The first time
the Secretary-General specifically mentions consideration of a career
appointment in the light of the General Assembly resolution, as an issue
separate from an extension of the fixed-term appointment and governed by
different factors, was in the presentation of his case first to the Tribunal
and then to this Court. It is then, under pressure of preparing a case for
adversarial presentation, that the Respondent displays consciousness that a
career grade appointment was legally possible without the co-operation of
the formerly seconding Government; and that, accordingly, there was a legal
necessity to have given every consideration to the possibility of such a
career appointment separately from consideration of an extension of the
fixed-term contract.
No wonder that the Tribunal in its Judgement wished that the Respondent
had, in his dealings with Mr. Yakimetz, declared plainly to him that the
Respondent had indeed given "reasonable consideration" to a career
appointment. The rebuke, however, implies the assumption that the
[p 152] Respondent had indeed, as the Tribunal found, already given every
reasonable consideration to a career appointment, and had come to a
negative conclusion nevertheless on this question as well as on that of an
extension of the fixed-term appointment; and had merely omitted to mention
this second and separate point to the Applicant. But, as shown above, the
letter of 21 December from Mr. Nègre, far from justifying such a
comfortable assumption, indicates unambiguously that the Respondent had not
done so because he believed he was not in a position to do so.
**
The Tribunal's Decision
One can readily agree with the Court's Opinion that the Tribunal saw the
problem, and in a way dealt with it; though it is not at first reading of
the Judgement easy to disentangle the ratio decidendi from many different
ideas that are lightly adumbrated but not pursued. The reason that seems to
emerge as the ratio decidendi of the Tribunal's decision on the key
question whether the Respondent had complied with paragraph 5 of section IV
resolution 37/126, is a very simple one, and the paragraph of the Judgement
where this argument is reached is worth setting out in full:
"XVI. However, even if the Applicant did not draw sufficiently early the
Respondent's attention to the resolution under discussion, the Respondent
was bound nonetheless by its terms and the Tribunal has to decide how and to
what extent he carried out his obligations under it.
The Respondent's letter dated 21 December 1983, addressed to the Applicant
in reply to his counsel's letter of 13 December 1983, states that he has
'given careful consideration to the issues raised in your request for
administrative review', and since these issues are particularly related to
the provision of the General Assembly resolution in question, the plain and
simple inference is that the Respondent had given the required (i.e., 'every
reasonable') consideration for a career appointment for the Applicant. This
is further elaborated in the Respondent's answer to the application when he
states:
'Respondent notes that the General Assembly only stated a desideratum,
namely, that fixed-term appointees be given reasonable consideration; the
Assembly did not specify new procedures for effecting such consideration, or
suggest that existing procedures not be utilized, and did not convert
fixed-term appointments to probationary appointments, whose holders must, as
a matter of [p 153] right, be reviewed by the Appointment and Promotion
Board before being separated after two years of probationary service.
Respondent therefore submits that, in the absence of such specification,
suggestion or conversion, the existing procedures under the Staff
Regulations and Rules, which form an integral part of all staff members'
terms of appointment, including Applicant's, remain applicable.'"
This determinative paragraph of the Judgement must now be considered.
It is difficult to understand the Respondent's purpose in his suggestion,
which the Tribunal here seems to be accepting, that the General Assembly's
resolution "only stated a desideratum, namely, that fixed-term appointees be
given reasonable consideration". The resolution did not in fact require
"reasonable consideration" but "every reasonable consideration"; and it was
clearly not a desideratum but a decision. The resolution's many paragraphs
are variously introduced: Requests, Welcomes, Approves, Calls Attention,
Notes, Considers, etc. — only three paragraphs, namely 3 and 4 of section
III (to do with childrens' allowances and education allowances), and
paragraph 5 of section IV, are introduced by the word "Decides". In any
event the Respondent has pleaded both that he was bound by the decision and
has complied with it, and the Tribunal has so held. So this suggestion of a
desideratum seems in any event to be without point.
Turning now to what seems to be the actual ratio decidendi of the
Tribunal's Judgement, what it amounts to is simply this: the Respondent has
stated to the Tribunal that he gave every reasonable consideration, in
accordance with the resolution, to the possibility of a career grade
appointment of the Applicant, and if the Respondent says he has done so, his
assertion must be accepted to be true, at least in the absence of proof to
the contrary. To this way of deciding the matter there are two objections:
the first is one of juridical principle; and the second is that the
Respondent's assertion is irreconcilable with the documents presented to the
Tribunal.
The objection of juridical principle may be very shortly stated. The UNAT
Statute — itself an enactment of the General Assembly in pursuance of the
relevant provisions of the Charter — establishes a system of judicial
control of administrative discretions of the sort familiar in
admin-istrative law generally. The essence of such a system is that the
judicial tribunal's task is to ensure that administrative decisions are made
within the applicable legal framework. Thus, in the present case, whilst it
is no part of the Tribunal's functions to usurp the discretion which the
Respondent alone can exercise, it is for the Tribunal to ensure that, in [p
139] making his decision, the Respondent did comply with the law; which
everybody agrees included the resolution 37/126, IV, paragraph 5.
Such a system of judicial control of administrative discretion is subverted
if the Tribunal simply accepts the assertion of the administrator, after the
event, that his decision was made in accordance with the legal requirements.
There is no purpose in having an administrative tribunal at all if it
accepts as sufficient the administrator's assurances, made not even to the
objecting applicant at the material time, but subsequently, and to the
Tribunal; and, moreover, in the absence of evidence at the material time
that the law was indeed complied with, and in the absence of reasons for the
decision. This situation is incompatible with a system of judicial control
of administrative discretion.
For the Respondent it has been pleaded that the resolution 37/126, IV, 5,
provided no set procedure for carrying it into effect; did not require that
fixed-term appointments be deemed to have been probationary appointments
thus ensuring that the Appointment and Promotion Board should be brought
into the matter; and that the resolution generally left the procedures of
implementation to the discretion of the Respondent. All this is true. One
can imagine a number of questions about the implementation of the
resolution which could only be solved by leaving the Respondent to decide
what to do. But leaving the decisions about the procedure or procedures to
be followed in the discretion of the Respondent, even perhaps to the extent
of allowing different procedures to be used in different cases, cannot mean
that a mere assertion, made to the Tribunal but not to the Applicant, that a
decision was made after proper consideration, will suffice. Some procedure
or other must be seen to have been followed. The absence of any particular
required procedure should indeed make it easier for the Respondent to be
able to tell the Applicant when and how a decision, after consideration, has
been made. That no particular procedure is required cannot mean that the
process can be purely subjective and notional.
**
Here, however, — and quite apart of the question of juridical principle —
we come to the further difficulty, or rather, as it seems to me, the
impossibility, of reconciling the Respondent's present assertion that every
consideration of a career appointment had been given, with what was said to
the Applicant in the administration's letters to him. To some extent this
difficulty has already been indicated above in the analysis of the exchanges
of late 1983 concerning the Applicant's, up till then, twice repeated
express application for a career appointment (the third applica[p 155]tion was the one on 9 January 1984). Concerning the crucial letter of
21 December from Mr. Nègre, it is really not possible to construe that
letter as saying anything other than that even a career appointment would
require the consent of the USSR Government, and since this is not
forthcoming no such appointment could be considered at all. In short, the
plain documentary evidence is that no consideration was given to the
Applicant for a career appointment because such an appointment was not
thought legally possible.
Now, it may well be that, had the seeming misapprehension of the legal
position not been present, and had every consideration been given to the
Applicant's career appointment as an issue separate from that of an
extension of his fixed-term contract and strictly in accord with the
resolution, the Respondent's decision would still have been not to offer Mr.
Yakimetz a career appointment. What the Tribunal and this Court have to be
concerned with, however, is not whether the Respondent's decision was the
right one, but whether the manner of its making was in accordance with the
requirements of the law. In so far as it objectively has the appearance of
having been made under a legal misapprehension, the decision must be
invalid, whether or not the same decision might have been made if the law
had been complied with. The argument is not that Mr. Yakimetz should have
been granted a career appointment; it is to say that the Tribunal was wrong
in holding that the question had been given every consideration as required
by the General Assembly's resolution, when there was no evidence at the
material time that this was the position, and there was compelling evidence
that at the material time this was not the position.
The plain meaning of Mr. Negre's letter of 21 December 1983 to the Applicant
would in itself be sufficient in my view to dispose of this case. But there
is, oddly enough, corroboration of this conclusion to be found in the
Tribunal's Judgement itself, in the Tribunal's curious reproof of the
Respondent in the following terms (see para. XVIII of the Judgement):
"He [the Respondent] thus exercised his discretion properly, but he should
have stated explicitly before 26 December 1983 [i.e., the date of the
termination of the Applicant's fixed-term appointment] that he had given
'every reasonable consideration' to the Applicant's career appointment."
This passage clearly shows that the Tribunal itself was uneasy about Mr.
Negre's letter of 21 December 1983 not so much, it seems, for what it said
as for what it did not say; and an applicant ought not to have to take his
case to the Tribunal in order to find out what the respondent had decided.
The unspoken assumption of this passage of the Judgement [p 156] appears to
be that, although the letter of 21 December did not state explicitly that
the Respondent had given "every reasonable consideration" to the Applicant's
career appointment, such a message must have been somewhere implicit in the
letter. Indeed, the Judgement purports to find no difficulty over such a
"plain and simple inference" (para. XVI). But it must be said again, even at
the risk of labouring the point, that Mr. Negre's letter simply leaves no
room for any such inference, for the reason that it deals with the question
in explicit terms, to the effect that, because of the secondment, the
Secretary-General was not in a position to consider a career appointment.
Now, then, we see the full significance of the terms of the Tribunal's
reproof. The Tribunal itself knew full well that there ought to have been,
before 26 December, an explicit statement that a career appointment had been
considered. It was troubled because it could find no such "explicit"
statement in the letter of 21 December. So it fell back on an assertion that
it must have been possible to infer it. Unfortunately, the terms of the
letter do not admit of any such inference, because the career question is
dealt with in explicit, but legally mistaken, terms.
**
If further collaboration of this conclusion were needed, it is now found in
the Legal Counsel's letter of 22 April 1987, replying to questions put by
the Court (see the Court's Opinion, para. 3). The first question asked,
"what has so far been the practice with regard to the implementation within
the Secretariat of the United Nations of paragraph 5 of Section IV of
resolution 37/126 adopted by the General Assembly on 17 December 1982?" The
answer shows that, even though the decision of the General Assembly has not
yet been "transformed into a formal procedure for inclusion in the Staff
Rules", there has in practice been a recognized procedure for its
implementation, including examination of cases "on their own merits" by the
Office of Human Resources Management. The answer continues:
"If the examination by OHRM leads to a negative result, the case is not
referred to the appointment and promotion body. However, even in such
situations, the matter may be considered by the Secretary-General himself.
This happens rarely, but occurred in the case of Mr. Yakimetz: see paragraph
28 of the written statement submitted on behalf of the Secretary-General."
There is no evidence that Mr. Yakimetz's case was ever before the OHRM; but
let us look at paragraph 28 of the Secretary-General's statement to which
we are referred. This paragraph is a short, but accurate, [p 157]summary of
the effect of the Assistant Secretary-General's letter of 21 December 1983
to Mr. Yakimetz, and it may be quoted in full:
"the Assistant Secretary-General for Personnel Services advised the
Applicant that the Secretary-General had given careful consideration to his
request of 13 December 1983, distinguished his situation from that of'most
staff members' with comparable service records in connection with his claim
to an expectancy, cited Staff Rule 104.12 (b) and the terms of his
appointment, maintained the position stated on 23 November 1983, declined to
forward his case to the Appointment and Promotion Board and agreed to the
direct submission of any appeal to the United Nations Administrative
Tribunal (the Administrative Tribunal)".
To understand this summary it is necessary to consult the preceding
paragraph 27 of the Secretary-General's Statement which summarizes Mr.
Yakimetz's letter of 13 December 1983, to which the Assistant
Secretary-General's letter was a reply. Again, it had better be cited in
full:
"On 13 December 1983 the Applicant's United Nations counsel, chosen by him
from the panel of counsel comprised of United Nations staff members, wrote
to the Secretary-General citing paragraph 5 of Section IV of General
Assembly resolution 37/126, Staff Regulations 4.2 and 4.4, Staff Rule 104.14
(a) (ii) and Article 101, paragraph 3, of the Charter, recalled his service
record and the evaluations of his supervisors, claimed an expectancy that
he would be given every reasonable consideration for a career appointment,
postulated a violation of Article 100 of the Charter and finally requested
that his name be forwarded to the appropriate Appointment and Promotion body
for reasonable consideration."
One thing stands out from the careful and accurate summaries in those two
paragraphs of the two most important letters. Mr. Yakimetz had asked,
precisely in the terms of the resolution, that, like "most staff members"
(perhaps in not saying "all staff members" he was being overcautious as
Legal Counsel's statement shows) in his position, he should be given "every
reasonable consideration for a career appointment". In the Respondent's
answer, Mr. Yakimetz's case is distinguished from that of "most staff
members", by referring solely to the terms of his fixed-term appointment,
and the manifest impossibility of renewing that without the assent of the
seconding government; and it refers to Staff Rule 104.12 (b)[p 158] which
provides that "The fixed-term appointment does not carry any expectation of
renewal or of conversion to any other type of appointment") and so distorts
Mr. Yakimetz's letter by treating it as if the expectancy he had expressed
was not an expectancy of every reasonable consideration for a career
appointment, but an expectancy of appointment.
The question this Court has to ask is not whether the Respondent should or
should not have granted the Applicant a career appointment — that is for the
Secretary-General to decide in his discretion and in accordance with the
provisions of the Charter and regulations enacted by the General Assembly in
pursuance of those provisions. The question is whether the Respondent gave
the Applicant every reasonable consideration for an appointment. The only
evidence before the Court consists of the Respondent's own written words,
and they all — not only the letters exchanged with Mr. Yakimetz, but the
Respondent's own summary statement of their effect — say that he did not,
because he believed that a career appointment was not legally possible.
**
For all these reasons I have had to conclude that the Court's answer to the
second question ought to have been "yes", because the Tribunal's Judgement
did err on questions relating to the Charter of the United Nations, in
finding that the Respondent had given every reasonable consideration to a
career appointment for the Applicant as required by resolution 37/126, IV,
paragraph 5.
(Signed) Robert Y. Jennings.
[p 159]
Dissenting opinion of judge Evensen
1. In its request of 28 August 1984 the Committee on Applications for Review
requested an advisory opinion of the Court on two questions relating to
Judgement No. 333 of the United Nations Administrative Tribunal, namely:
"1. In its Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the United
Nations Administrative Tribunal fail to exercise jurisdiction vested in it
by not responding to the question whether a legal impediment existed to the
further employment in the United Nations of the Applicant after the expiry
of his contract on 26 December 1983?
2. Did the United Nations Administrative Tribunal, in the same Judgement No.
333, err on questions of law relating to provisions of the Charter of the
United Nations?"
Article 11, paragraph 1, of the Statute of the Administrative Tribunal
provides for the following four grounds of objection, which may justify a
request for an advisory opinion of the Court:
(A) the Tribunal has exceeded its jurisdiction or competence;
(B) the Tribunal has failed to exercise jurisdiction vested in it;
(C) the Tribunal has erred on a question of law relating to the provisions
of the United Nations Charter;
(D) the Tribunal has committed a fundamental error in procedure which has
occasioned a failure of justice.
The application for an advisory opinion was filed within the time-limits
provided for in Article 11, paragraphs 1 and 2, of the Statute of the United
Nations Administrative Tribunal and in Article II of the Rules of Procedure
for the Committee on Applications (doc. A/AC.86/2/Rev.3 of 25 March 1983).
No substantial procedural objections exist as to the Court's competence to
comply with the request for an advisory opinion. The Court has decided to do
so in accordance with Article 96 of the United Nations Charter.
Question 1
2. The first issue addressed to the Court, whether the Administrative
Tribunal has failed "to exercise jurisdiction vested in it by not responding
to the question whether a legal impediment existed to further employment in
the United Nations", seems to contain abstractions which may becloud [p 160]
the real issue. It seems to emphasize procedural issues rather than the
substantive issues involved. In a procedural sense, the Tribunal may be
said to have exercised its jurisdiction. The case was pleaded before the
Tribunal and the Tribunal in its Judgement dealt with a host of issues and
arguments. One may agree or disagree with the Judgement on the merits. But
the test as to whether there has been a failure to exercise jurisdiction
"must be the real one of whether the Tribunal addressed its mind to the
matters on which a plea was based and drew its conclusions therefrom . . ."
(Application for Review of Judgement No. 158 of the United Nations
Admini-strative Tribunal, I.C.J. Reports 1973, p. 193, para. 56).
The answer to the issue of whether the Tribunal failed to exercise its
jurisdiction in cases of this nature is in whether or not the Tribunal
conscientiously and judiciously evaluated the elements of fact and law in
such a manner as to use the powers and discretion vested in it as a court of
law to reach a decision, both in regard to the relevant facts and the law.
In the Fasla Advisory Opinion of 12 July 1973 the Court held to this effect
as follows:
"this ground of challenge covers situations where the Tribunal has either
consciously or inadvertently omitted to exercise jurisdictional powers
vested in it and relevant for its decision of the case or of a particular
material issue in the case" (I.C.J. Reports 1973, p. 189, para. 51, emphasis
added).
And the Court explains this principle in some detail as follows:
"Clearly, in appreciating whether or not the Tribunal has failed to exercise
relevant jurisdictional powers, the Court must have regard to the substance
of the matter and not merely to the form." (Ibid., pp. 189-190, para. 51,
emphasis added.)
This Advisory Opinion also emphasizes that the Court must:
"appreciate in each instance, in the light of all pertinent elements,
whether the Tribunal did or did not in fact exercise with respect to the
case the powers vested in it and relevant to its decision" (ibid., p. 190,
para. 51, emphasis added).
The guidelines appended to this Advisory Opinion in the declaration
formulated by Judges Foster and Nagendra Singh are also relevant in the
present instance. It states:
"In such cases it would be essential to consider whether in coming to its
conclusion the Tribunal has remained within the margin of reasonable
appreciation or what may be called a normal reasonable exercise of
discretion in the evaluation of the facts and issues . . ." (Ibid., p. 218.)
Consequently, the relevant question to be decided in this case is not [p
161] whether the United Nations Administrative Tribunal failed to exercise
its jurisdiction; it obviously exercised its jurisdiction. The pertinent
question is rather that raised in question 2, namely whether in exercising
its jurisdiction, the Tribunal erred on questions of law relating to the
provisions of the United Nations Charter.
I therefore agree with the findings of the Court on question 1, that the
United Nations Administrative Tribunal did not fail to exercise
jurisdiction vested in it by not responding to the question whether a legal
impediment existed to the further employment in the United Nations of the
Applicant after the expiry of his contract on 26 December 1983.
Question 2
3. The second question addressed to the Court is whether the Administrative
Tribunal in its Judgement No. 333 erred "on questions of law relating to
provisions of the Charter of the United Nations". On this issue, I feel
constrained to present a dissenting opinion because I do not share the views
expressed by the majority of the Court.
4. The main provisions of the United Nations Charter relevant to the present
case are found in Chapter XV of the Charter dealing with the Secretariat;
and especially in Articles 100 and 101.
Article 100 provides:
"1. In the performance of their duties the Secretary-General and the staff
shall not seek or receive instructions from any government or from any other
authority external to the Organization. They shall refrain from any action
which might reflect on their position as international officials
responsible only to the Organization.
2. Each Member of the United Nations undertakes to respect the exclusively
international character of the responsibilities of the Secretary-General and
the staff and not to seek to influence them in the discharge of their
responsibilities."
Article 101 provides in paragraphs 1 and 3:
" 1. The staff shall be appointed by the Secretary-General under regulations
established by the General Assembly.
3. The paramount consideration in the employment of the staff and in the
determination of the conditions of service shall be the necessity of
securing the highest standards of efficiency, competence, and integrity.
Due regard shall be paid to the importance of recruiting the staff on as
wide a geographical basis as possible."
In these Articles the Charter lays down general principles. These have been
implemented by the Staff Regulations and Staff Rules, as provided [p 162]
for in Article 101, paragraph 1, of the Charter, and also by the
jurisprudence of the Administrative Tribunal. The formulations contained in
Section IV, paragraph 5, of General Assembly resolution 37/126, which the
Respondent acknowledges to be binding on him, also belong to this corpus of
law.
Therefore, the question is whether the Tribunal, in its Judgement No. 333,
erred in interpreting and applying the relevant parts of this body of law to
the facts of the present opinion.
5. The above principles of the Charter have been reiterated and elaborated
in Article IV of the Staff Regulations. Thus, Article IV contains in
Regulation 4.4 provisions which seem especially relevant for the present
case. It provides:
"Subject to the provisions of Article 101, paragraph 3, of the Charter, and
without prejudice to the recruitment of fresh talent at all levels, the
fullest regard shall be had, in filling vacancies, to the requisite
qualifications and experience of persons already in the service of the
United Nations." (Emphasis added.)
Similar provisions are found in the Staff Rules, which contain detailed
rules as to the procedures to be followed in implementing the
above-mentioned provisions of the United Nations Charter and of the Staff
Regulations. Rule 104.14 of these Staff Rules provides, INTER ALIA, in
subparagraph (A) (i): "An Appointment and Promotion Board shall be
established by the Secretary-General to give advice on the appointment,
promotion and review of staff . . ." And according to sub-paragraph (A)
(ii), this Appointment and Promotion Board shall "in filling vacancies,
normally give preference, where qualifications are equal, to staff members
already in the Secretariat..." (emphasis added.)
6. To the provisions of the Charter and the Staff Regulations and Rules must
be added General Assembly resolution 37/126, section IV, paragraph 5, which
entails a further implementation of the aforementioned principle. This
paragraph of the resolution reads as follows:
"5. Decides that staff members on fixed-term appointments upon completion of
five years of continuing good service shall be given every reasonable
consideration for a career appointment."
7. It is an established fact that Mr. Yakimetz had the unqualified
recommendations of his superior. His qualifications were rated excellent and
the need for his continued services and extensive experience as a United
Nations employee was likewise expressed and is part of the records of this
case. Thus, in regard to Mr. Yakimetz's Performance Evaluation Report of 3
November 1983, the Assistant Secretary-General stated in his letter of 8
November 1983 (doc. AT/DEC/333, pp. 5-6) in no uncertain terms that:[p 163]
"I have recently signed your performance report which shows that the
excellent work you performed during the first year with the Office... has
been continued to the full satisfaction of your... supervisors. I am glad
to note that you have fully met our expectation of continued
professionalism, dedication to your task and hard work, which was the basis
for your promotion. I consider you a staff member whose contribution...
meets the high demands of competence and commitment which are to be
expected from a United Nations official... I find no difficulty in
recommending a further extension of your contract...-" (Emphasis added.)
In his letter of 29 October 1983, Mr. Yakimetz applied for "a further
extension of my contract" of employment or "even better a career
appointment". In reply to his letter, Mr. Yakimetz received on 23 November
1983 the following, rather peculiar, answer:
"Upon instruction by the Office of the Secretary-General, I wish to inform
you that it is not the intention of the Organization to extend your
fixed-term appointment beyond its expiration date, i.e., 26 December 1983."
(Ann. 36 to Applicant's Statement of Facts and Argument.)
The letter seems extraordinary for several reasons. In form, its BREVITY is
excessive. Here, it should be borne in mind that Mr. Yakimetz had served
with distinction as a staff member of the United Nations for several years,
first in the period 1969-1977 as a Reviser and then for a five-year term
from December 1977 to December 1982, extended with one year to 26 December
1983, as a Reviser and subsequently as a Programme Officer in the Department
of International Economic and Social Affairs.
In substance the letter offers no reasons for the refusal to consider an
extension of Mr. Yakimetz's employment contract. There were no indications
in the letter that his request for a career appointment had been referred to
the Appointment and Promotion Board established by the Secretary-General "to
give advice on the appointment, promotion and review of staff in the General
Service and Professional categories . . ." (Staff Rule 104.14 (A) (i)).
Indeed it was not even acknowledged that his request for a career
appointment had been registered, let alone been dealt with. No reference was
made as to whether the governing provision of section IV, paragraph 5, of
the General Assembly resolution 37/126 had been complied with. Furthermore,
no indications were given that due consideration had been given to Staff
Rule 104.14 (A) (ii), and to Article IV, Regulation 4.4, of the Staff
Regulations, which reads:
fullest regard shall be had, in filling vacancies, to the requisite [p 164]
qualifications and experience of persons already in the service of the
United Nations".
In response to the refusal by the Secretariat to extend Mr. Yakimetz's
contract, Mr. Yakimetz's superior, the Assistant Secretary-General for
Programme Planning and Co-ordination, expressed his views in a letter, dated
2 December 1983, addressed to the Assistant Secretary-General for Personnel
Services (doc. AT/DEC/333, p. 7):
"I find it extraordinary that such a decision should be taken without
consulting the head of the Office concerned, especially in the case of an
officer with eleven years of excellent service to the Organization, who has
received a personal evaluation report with the highest rating only four
weeks ago, was promoted to the P-5 level and was elected Vice-Chairman of
the Appointment and Promotion Committee earlier this year and is currently
in the midst of important assignments for one of which he is in some ways
uniquely well qualified . . ." (Emphasis added.)
8. Of course, the decision of the Secretary-General to prolong or not to
prolong a contract for service in the United Nations Secretariat, or to give
a staff member a career appointment, is a discretionary decision. But as
stated by the Administrative Tribunal of the International Labour
Organisation in the Rosescu case (Judgment No. 431, p. 7, para. 5):
"Although a decision on the extension of an appointment is a discretionary
one, it does not fall entirely outside the scope of review by the Tribunal.
The Tribunal will set it aside if it is tainted with some such flaw as lack
of authority, breach of formal or procedural rules, mistake of fact or of
law, disregard of essential facts, misuse of authority or the drawing of
clearly mistaken conclusions from the facts." (Emphasis added.)
With regard to the need to consult the national government concerned where a
renewal of a government official's appointment is contemplated, the
Administrative Tribunal made the following observation in the Rosescu case
(ibid., p.7, para. 6):
"if such a government official's appointment is to be extended, it is
reasonable that the organisation should again consult the member States,
which may have good reason to re-employ him. This does not mean that a
director-general must bow unquestioningly to the wishes of the government he
consults. He will be right to accede where sound reasons for opposition are
expressed or implied. But he may not forego taking a decision in the
organisation's interests for the sole purpose of satisfying a member State.
The organisation has an interest in being on good terms with all member
States, but that is no valid ground for a [p 165] director-general to fall
in with the wishes of every one of them." (Emphasis added.)
9. I shall now revert to the central question whether the Applicant was
given "every reasonable consideration for a career appointment" as provided
for in General Assembly resolution 37/126, section IV, paragraph 5. An
additional question is: how shall the Secretary-General properly exer-cise
his discretionary powers in this respect and what specific procedures
recommend themselves in this regard?
As observed above, the Secretary-General of the United Nations exercises
and must necessarily exercise a discretionary power in recruiting and
retaining staff members. But his discretion must be exercised within
certain bounds and accepted guidelines, both of a general nature and more
specifically as provided for in regard to staff appointments.
The principal provisions governing the Secretary-General's competence to
appoint the United Nations staff are contained in Article 101, paragraph 1,
of the United Nations Charter. "The staff shall be appointed by the
Secretary-General under regulations established by the General Assembly."
(Emphasis added.) It follows that his discretionary power is subject to
regulations established by the General Assembly. These questions were
discussed at the preparatory phases of the drafting of the Charter.
In the Commentary on the Charter of the United Nations by Goodrich, Hambro
and Simons (3rd. and rev. edn., p. 601) it is noted that in the drafting of
the Charter a proposal to share the Secretary-General's authority in this
respect with governments was not accepted:
"During the discussions concerning the organization of the Secretariat in
the Administrative and Budgetary Committee... a proposal was submitted under
which appointments of officials of the Secretariat would require the
concurrence of the governments of the candidates concerned. In support of
this proposal, it was argued that governments were in the best position to
assess the qualifications of candidates, that persons appointed should
command the confidence of their governments, and that once appointed their
exclusively international responsibilities would be respected. The view
prevailed that the suggested procedure would impinge on the exclusive
responsibility of the Secretary-General under Article 101." (Emphasis
added.)
10. It follows from Article 101, paragraph 1, of the Charter that not only
has the Secretary-General been imbued with the power to appoint the United
Nations staff, but the Secretary-General must exercise his discretionary
power. He cannot abide by or be unduly influenced by the [p 166] orders or
wishes of governments, organizations or other external forces. Secondly, and
especially important, is that the Secretary-General's discretionary power
is not synonymous with unlimited or absolute powers. Under general
principles of law, this discretionary power has to be exercised in
accordance with accepted governing procedures.
On the other hand, it is clear under Staff Rule 104.12 (B) that a fixed-term
appointment does not carry any legal expectancy of renewal or conversion to
a career appointment. Consequently, the discretionary power of the
Secretary-General is of major importance for the appointment and composition
of the Secretariat. It is equally clear that, in exercising his
discretionary power, the Secretary-General must apply certain established
standards and norms.
Reference may here be made to the basic requirements and standards expressed
in Judgement No. 54 of the Administrative Tribunal in the Mauch case. The
Tribunal stated (p. 272, para. 5):
"While the measure of power here was intended to be left completely within
the discretion of the Secretary-General, this would not authorize an
arbitrary or capricious exercise of the power of termination, nor the
assignment of specious or untruthful reasons for the action taken, such as
would connote a lack of good faith or due consideration for the rights of
the staff member involved." (Emphasis added.)
Such an abuse of discretionary power might result in a wilful or negligent
denial of justice not consonant with the exercise of such powers.
11. Concrete provisions in regard to the exercise of the Secretary-General's
discretionary power in regard to staff appointments have been spelt out in
General Assembly resolution 37/126, in the Staff Regulations, Article VI,
Regulations 4.2 and 4.4, and in Staff Rule 104.4.
General Assembly resolution 37/126 provides in section IV, paragraph 5:
"staff members on fixed-term appointments upon completion of five years of
continuing good service shall be given every reasonable consideration for a
career appointment" (emphasis added).
Section IV, paragraph 4, of the resolution provides that the organizations:
"should establish their needs for permanent and fixed-term staff on a
continuing basis in conjunction with the human resources planning
process..."
In addition to General Assembly resolution 37/126, the rather firm
commitments made in the Staff Regulations, Article IV, Regulation 4.4,[p
167] and in the Staff Rules, Rule 104.14, would make it highly irregular to
disregard the Applicant for a career appointment. However, in view inter
alia of the correspondence that passed between the Secretary-General and Mr.
Yakimetz, I feel compelled to assume that every reasonable consideration
for a career appointment was not given to the Applicant according to the
terms and spirit of General Assembly resolution 37/126.
12. In the letter of 13 December 1983 to the Secretary-General (Ann. 39 to
the Applicant's Statement of Facts and Argument), Mr. Yakimetz's counsel
refers to General Assembly resolution 37/126 (sec. IV, para. 5), Staff
Regulation 4.4, and Staff Rule 104.14, as well as to Article 101, paragraph
3, of the United Nations Charter. In that letter it is correctly maintained
that Mr. Yakimetz's application for an extension of employment or a new
career appointment should be given "every reasonable consideration" ;
furthermore, that extraneous factors could not be used to deny him such
"fair and reasonable consideration".
The reply letter of 21 December 1983, signed by Mr. Nègre of the Secretariat
on behalf of the Secretary-General (Ann. 40 to Applicant's Statement of
Facts and Argument), reveals that "every reasonable consideration" was not
given to Mr. Yakimetz's application because of serious flaws in the
underlying legal reasoning. This letter, on the contrary, gives unequivocal
expression to the erroneous assumption that Mr. Yakimetz could not benefit
from the principle of "every reasonable consideration" for continued
employment because his situation was: "not similar to that of 'most staff
members' with comparable service records, because your present contract was
concluded on the basis of secondment from your national civil service"
(ibid.).
In passing, it may be mentioned that even the factual assertions here quoted
seem to be incorrect or at least tendentious. Furthermore, Mr. Nègre's
letter seems to assume that because of this original secondment, it would
follow that a staff member, who initially worked in the Secretariat on a
secondment basis, should be barred from obtaining a career contract "without
the involvement of all the parties originally involved". This seems to imply
that a career appointment in such cases would inherently be a kind of
secondment contract in disguise. The fact that a secondment contract "does
not carry any expectancy of renewal or of conversion to another type of
appointment" is not intended to bar a possible renewal thereof or a
conversion to a career appointment. On the contrary, this formulation
envisages the possibility of renewal or conversion when it is reasonable
and expedient in the concrete case.
An assumption to the effect that a career appointment would not be possible
unless such appointment was seconded, or at least met with the approval of
the previously seconding State, entails an error of law relating [p 168] to
provisions of the United Nations Charter. Nor would it serve the best
interests of the United Nations Organization, the Secretariat or its
individual members. Further somewhat bizarre developments seem to confirm
the impression that Mr. Yakimetz's application was not given due
consideration.
13. Thus, on 28 February 1983 the Applicant received "a memorandum" from
Mr. Sadry, Director of the Division of Personnel Administration, informing
him that Mr. Sadry had:
"been requested to communicate to you the decision by the Secretary-General
to place you on special leave with full pay, effective 1 March 1983 and
until further notice" (Ann. 26 to Applicant's Statement of Facts and
Argument).
This unusual step was couched in harsh language. It took immediate effect
and it was for an indefinite period of time. Even more remarkable is the
fact that no reasons were given for this unusual step. Staff Rule 105.2 (A)
on Special Leave was quoted, but no explanations were given as to why this
provision was invoked. In this context, it should be noted that in addition
to special leave "for advanced study or research in the interest of the
United Nations, in cases of extended illness", special leave can also be
given "for other important reasons". It seems to follow from the drafting of
the provisions of Staff Rule 105.2 that these reasons must be spelt out,
especially when no request for special leave has been made. The duration of
this involuntary leave of absence was also left in the air, viz., "until
further notice".
When such extraordinary measures were summarily taken against a respected
staff member, it seems to follow from ordinary decency and the very nature
of things that full and detailed reasons should have been given for such
steps.
In my respectful opinion, the Secretary-General should, in conformity with
principles of justice and equity, also have stipulated a time-limit for a
reply of the Applicant and should not have enforced the measures until such
time-limit had expired and the Applicant had had the opportunity to respond,
to protest or to request negotiations in regard to this sudden and
unexpected curtailment of his employment prospects.
In my opinion, the Secretariat did not follow a reasonable procedure when
placing the Applicant on an involuntary and indefinite leave of absence.
Certain minimum procedural standards should have been complied with in the
exercise of such discretionary power.
Certain statements in Judgement No. 333 of the Administrative Tribunal seem
pertinent in this context. On page 18, paragraph XX, the Judgement states:
"The Tribunal would however express its dissatisfaction with the failure of
the Respondent to record sufficiently early and in specific [p 169] terms
the fact that he had given the question of the Applicant's career
appointment 'every reasonable consideration' as enjoined by the General
Assembly resolution. However, this omission on the part of the Respondent
has not caused any discernible injury to the Applicant..." (Emphasis added.)
The statement that such omission on the part of the defendant has not caused
any discernible injury seems surprising in light of the fact that Mr.
Yakimetz's appointment was not renewed and his request for a career
appointment passed over in silence.
14. One question that arises is how the proper exercise of the
discretionary power by the Secretary-General is to be implemented in the
absence in the Staff Regulations of any specified procedure, and without an
indication of the process by which the decision of the Secretary-General has
been arrived at, and the reasons therefor. Neither the Staff Regulations nor
the Staff Rules contain provisions as to the procedure to follow.
Nevertheless, the Secretary-General is not entitled to act without due
process.
In my opinion, the absolute lack of formality in the decision-making
procedure in the Yakimetz case, as well as the lack of reasons which would
substantiate the operative conclusions of the decision, border on a denial
of justice. Thus, in connection with the question of the exercise of the
Secretary-General's discretionary power, serious abuse of this
discretionary power may have been committed when, in a memorandum of 11
March 1983 by the Secretary-General's office, the Applicant was prohibited
from entering the premises of the United Nations "until further notice "
(Ann. 29 to Applicant's Statement of Facts and Argument). No reasons were
given therefor. Furthermore, according to the available information, Mr.
Yakimetz was also prohibited from visiting the United Nations cafeteria.
Yet, it should be borne in mind that Mr. Yakimetz still had a valid
contract of employment. The legal basis for these steps was and is tenuous.
No factual or legal grounds were given for this extraordinary decision other
than the unrevealing statement that:
"at this juncture and pending further review, it is in the best interest of
the Organization that you do not enter the premises of the United Nations"
(Ann. 30 of Applicant's Statement of Facts and Argument).
But what about the justified interests of the Applicant? Such an
exceptional ban must have been been felt by Mr. Yakimetz — and regarded by
others in the staff and elsewhere — as demeaning.
15. It follows from basic principles of justice and reasonable behaviour in
dealings with the members of the Secretariat that adequate reasons should
have been given in writing to Mr. Yakimetz, spelling out why he was not
accorded a career appointment.
As a matter of fact, the Applicant did not receive an answer to his
appli-[p 170]cation for a career appointment, and has not up to this day
received any communication in response to it.
The above chain of unusual events seems to me to indicate that Mr.
Yakimetz's application for a career appointment did not receive the
reasonable consideration required under General Assembly resolution 37/126.
It is furthermore unlikely that due regard was paid to the provisions of
Article IV, Regulations 4.2 and 4.4, of the Staff Regulations, and to Staff
Rule 104.14. Further developments seem to confirm this conclusion.
Although he was refused permission to work in his established office in the
Headquarters building for unspecified reasons, later Mr. Yakimetz was
allowed to work in quarters across the street, in the Chrysler Building and
then in the Burroughs Building. When the new CD-2 Building was opened, he
was permitted to rejoin his section and serve out his contract in that
building.
The Court does not possess adequate information about the underlying
reasons for these steps. But at least they also seem to throw a rather
revealing light on the question whether the Applicant was given "every
reasonable consideration for a career appointment" according to General
Assembly resolution 37/126. Whatever the underlying reasons may have been,
they cannot have been lack of qualifications for the job or lack of personal
integrity as Mr. Yakimetz was promoted to P-5 on 29 June 1983, obviously in
recognition of his qualifications and his dedication to his work in the
service of the Organization.
I feel compelled to deduce also from these occurrences that "every
reasonable consideration for a career appointment" was hardly accorded to
the Applicant.
16. In rounding off the examination of what should be the standard for the
exercise of his discretionary power conferred upon an administrative
officer, mention may be made of the following additional elements: the
requirement laid down in the United Nations Charter, Article 100, to the
effect that neither the Secretary-General nor his staff shall "seek or
receive instructions from any government or from any authority external to
the Organization" must be complied with. Article 101, paragraph 3, must
likewise be borne in mind, stipulating that the Secretary-General must
provide for a staff with "the highest standards of efficiency, competence,
and integrity"; furthermore, that the Secretary-General must pay attention
to "the importance of recruiting the staff on as wide a geographical basis
as possible".
Mention should also be made of the following elements:
(a) the obligation to act in good faith and with reasonable regard for
accepted standards of reasonable behaviour;
(b) the obligation to take into reasonable consideration the rights and
obligations of the staff in general and the staff member involved in
particular;[p 171]
(c) in applying the standard of reasonable consideration, the possibility of
a career appointment should obviously have been evaluated, and a reasoned
reaction to Mr. Yakimetz should have been given without undue delay.
17. In dealing with the question whether the United Nations Administrative
Tribunal in Judgement No. 333 "erred on questions of law relating to
provisions of the Charter of the United Nations", the legal nature of the
concept of secondment must briefly be touched upon.
The application and legal consequences of the rather elusive concept of
secondment must be undertaken in the light of the principles briefly
examined above. Thus, Article 100 of the United Nations Charter provides
that in the exercise of their duties, the members of the United Nations
Secretariat "shall not seek or receive instructions from any government or
from any other authority external to the Organization". The staff members
shall furthermore "refrain from any action which might reflect on their
position as international officials responsible only to the Organization".
These basic obligations are further elaborated in Article 1 of the Staff
Regulations.
18. Neither the United Nations Charter nor the Staff Regulations and Staff
Rules contain provisions on secondment. On the contrary, the very principle
of secondment may raise certain questions in regard to Article 100 of the
United Nations Charter and to the above-mentioned provisions of the Staff
Regulations.
One conclusion to be drawn from these provisions is that, if a seconded
person later applies for a renewal of his appointment and especially a
career appointment, his earlier secondment appointment should in principle
not act as a legal impediment against such renewal or career appointment. It
may be in the interest of the Organization to secure for its Secretariat
staff members who have demonstrated their qualifications and have acquired
valuable experience as previously seconded appointees.
In its Judgement No. 333 the Administrative Tribunal stated that:
"IV. In his letter of 21 December 1983 addressed to the Applicant, the
Respondent concluded, that, since the involvement of all parties concerned
was necessary for the renewal of the Applicant's appointment, such renewal
was impossible in the circumstances."
This statement of the Tribunal is a simplification so severe as to make it
untenable. The possibility of a career appointment, independent of
secondment, seems to have been neglected or disregarded by the
Administrative Tribunal. Secondment may be a useful tool inasmuch as a
person seconded by his Government may be presumed to have the personal and
professional qualifications for the appointment in question.
Career-appointees will, of course, also frequently have some official
recommendations short of official secondment.[p 172]
In Mr. Yakimetz's Application for Review of the Administrative Tribunal
Judgement No. 333 (doc. A/AC.86/R.117, p. 5, para. 9) one problem of
secondment was succinctly summed up as follows:
"did the Respondent err in his belief that having once served under a
contract labelled 'secondment', the Applicant was thereby permanently
disabled from further United Nations service under any other form of
contract or appointment".
In my opinion, this is a basic issue in the case which the Administrative
Tribunal seems to have obscured.
One essential aspect of this issue was dealt with by Judge Arnold Kean in
his dissenting opinion as follows (Judgement No. 333, p. 23, para. 10):
"there was in the circumstances no possibility, and no desire on the part of
the Government or of the Applicant, that he should rejoin the service of
that Government, from which he had recently resigned. The only effect,
therefore, of a supposed preclusive agreement (expressed or implied) would
have been to prevent the Applicant from being employed, then or at any
future time, by the United Nations, however valuable or necessary his
services might be. It cannot be believed that the Respondent would ever
have been a party to so unreasonable an agreement, bearing in mind the
provision of Article 101.3 of the Charter ... that 'the paramount
consideration in the employment of the staff... shall be the necessity of
securing the highest standards of efficiency, competence, and integrity'.
(Emphasis added.)"
19. My conclusions on this brief examination of the concept of secondment
are the following:
There may exist an inherent conflict between the provisions in Article 100
of the United Nations Charter on the independence and integrity of the
Secretariat and the practice of secondment if the principle of secondment
is too rigidly applied. At least in cases of career appointments, lack of
secondment cannot constitute a legal impediment for further employment in
the United Nations. In my opinion, it must also be open to a staff member,
whose appointment is based on a contract of secondment, to apply for a new
stint in the Secretariat on the basis of a career contract.
In view of the foregoing, I find that the Administrative Tribunal in its
Judgement No. 333 of 8 June 1984 erred on questions of law relating to
provisions of the Charter of the United Nations. It erred in acquiescing in
the Secretary-General's apparent failure to apply regulations binding upon
him under Article 101, paragraph 1, of the Charter. It erred in not finding
that the administrative measures taken against Mr. Yakimetz were
inconsistent with Article 100 of the Charter. And it erred under Arti-[p
173]cle 101, paragraph 3, of the Charter in treating government consent to
Secretariat appointments as a paramount consideration.
Since I disagree with the Advisory Opinion in regard to question 2,I am
constrained to file this dissenting opinion.
20. In concluding, may I add some observations on an issue relating both to
question 1 and question 2, namely what are the legal consequences, if any,
of the fact that Mr. Yakimetz changed his permanent residence and opted for
United States' nationality.
Judge Ustor stressed in his opinion in Judgement No. 333 of the
Administrative Tribunal (p. 19) that:
"the Applicant was . . . not eligible for consideration for a career
appointment. In any event, the Applicant, in view of the circumstances in
which he elected to break his ties with his country, 'could no longer claim
to fulfil the conditions governing employment in the United Nations' and
could not expect that any consideration would lead to his career
employment."
This statement seems too absolute to be tenable. In the foregoing, I have
examined the requirement laid down in General Assembly resolution 37/126
that "every reasonable consideration shall be given to a staff member's
application for a career appointment".
In his statement, Judge Ustor seems to turn this principle upside down in
actually claiming that no consideration whatever should be given to a
"Yakimetz category" application for a career appointment. I am likewise
concerned that Judge Ustor's absolutism comes very close to infringing upon
the principles underlying Article 100 of the Charter of the United Nations
concerning the independence and integrity of staff members, and also close
to infringing upon basic principles of law spelt out in the Universal
Declaration of Human Rights of 10 December 1948, inter alia, the principles
laid down in Articles 13 and 15 thereof to the effect that: "Everyone has
the right to leave any country, including his own, and return to his
country" (Art. 13, para. 2), and the provisions of Article 15, paragraph 2,
that: "No one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality."
Of course, a change in nationality may create certain complications, both in
view of the need and effects of secondment and of the provisions in the
United Nations Charter, Article 101, paragraph 3, to the effect that: "Due
regard shall be paid to the importance of recruiting the staff on as wide a
geographical basis as possible."
But the "paramount consideration", expressed in Article 101, paragraph 3,
of the Charter, refers to "the necessity of securing the highest standards
of efficiency, competence, and integrity" in appointing staff [p 174]
members. These qualifications Mr. Yakimetz undoubtedly possessed. It may be
said that the Applicant upheld his loyalties to the United Nations
Organization in spite of certain pressures and adversities. In my opinion,
the question of breaking ties with a government is a two-way street.
Possibly, a government may break its ties with a citizen in various ways.
Should this situation have an absolute impact on his chances of a career
appointment? In my opinion, the answer must be in the negative.
To what extent mere change of residence should have adverse effects seems
even less obvious. The fact that a person serves for a great number of his
adult years in a country or city where that organ of the United Nations is
situated, might often make it natural for a staff member to establish his
residence there. Hypersensitivity from the national government in such cases
should not be encouraged. In such cases, a first secondment should be
sufficient for the continued service of such staff member and if
difficulties arise, a career appointment might ease the situation. The Staff
Rules do not preclude changes of residential status.
In its Judgement No. 326 (p. 8, para. VII), the Fischman case, the
Administrative Tribunal entertained a somewhat different view in referring
to an Information Circular of 19 January 1954 to the following effect:
"The decision of a staff member to remain on or acquire permanent residence
status in ... [the] country [of their duty station] in no way represents an
interest of the United Nations. On the contrary, this decision may adversely
affect the interests of the United Nations in the case of internationally
recruited staff members in the Professional category..."
This formulation seems to me much too categorical. Such restrictions on the
essential freedom of highly qualified professional persons may, for many
reasons, adversely affect the interests of the United Nations in preventing
the Organization from obtaining qualified personnel or in losing seasoned
personnel who have worked with the United Nations Organization for a long
time, and have thus acquired invaluable expertise in and for the United
Nations.
These views, applied to the present case, indicate that Mr. Yakimetz's
establishment of permanent residency in New York and his application for
United States citizenship could not be regarded as a bar to his application
for a career appointment.
(Signed) Jens Evensen.
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