27 May 1987

 

General List No. 72

 
     

international Court of Justice

     
     
     

Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE: President: Singh;
Vice-President: Mbaye;
Judges: Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Bedjaoui, Ni, Evensen, Tarassov
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1987.05.27_judgment333.htm
   
Citation: Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, 1987 I.C.J. 18 (May 27)
 
     
 
 
     
 

[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 requιrant ΰ 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 considιration 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 prιparatoires, 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 prιparatoires 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 prιparatoires 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-ΰ-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. Nθgre, Assistant Secretary-General, Personnel Services; and this bringing of Mr. Nθgre onto the stage is important because it is Mr. Nθgre'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. Nθgre, 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. Nθgre'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. Nθgre, 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. Nθgre'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. Nθgre 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. Nθgre 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. Nθgre 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. Nθgre'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. Nθgre 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. Nθgre, 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. Nθgre, 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. Nθgre 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. Nθgre'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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