Exposés écrits

INTERNATIONAL COURTOF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

APPLICATION FOR REVIEW OF
JUDGEMENT No. 333 OF THE
UNITED NATIONS
ADMINISTRATIVE TRIBUNAL

COUR INTERNATIONALE DEJUSTICE
MÉMOIRES. PLAIDOIRIES ET DOCUMENTS

DEMANDE DE RÉFORMATION
DU JUGEMENT No 333
DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIESRequest for Advisory Opinion - Requêtepour avis consultatif

Dossier transmitted by the Secretary-General of the United Nations
(Art. 65, para. 2, of the Statute- Dossier transmis par le Secrétaire
généraldesNations Unies (article 65, paragraphe 2, du Statut)....

INTROOUCTOR NYOTE ......................
Part 1of the dossier. Documents relatina ta the ~roceedings leading
to the request by the Committee on App~icafions for ~eview 07
Administrative Tribunal Judgements for an advisory opinion of
the International Court of ~Justice in relation ta Judgement
No. 333 of the United Nations Administrative Tribunal .....
A. Documents of the Twenty-fourth Session of the Committee
B. Other documents cited in or relevant to documents con-
sidered by the Committee at its Twenty-fourth Session. ..
C. Documents suhmitted to the United Nations Administrative
Tribunal: Case No. 322: Yakimetz against the Secretary-
General of the United Nations .............
D. Administrative Tribunals Judgements cited in the documents
submitted to the Committee or to the United Nations
Administrative Tribunal or in its Judgement No. 333....

1. Judgements of the United Nations Administrative
Tribunal (UNAT) .................
2. A judgment of the International Labour Organisation
Administrative Tribunal (ILOAT) ..........
Part II of the dossier. Documents directly relating to the formulation
of paragraph 5 of section IV of General Assembly resolution 37/
126 of 17 December 1982 and of paragraph 5 of section VI of
General Assemhly resolution 38/232 of 20 December 1983 ....

A. Paragraph 5 of section IV of General Assembly resolution
37/126 .......................
1. Documents of the Thirty-fifth Session of the General
Assembly .....................
2. Documents of the Thirty-sixth Session of the General
Assembly .....................
3. Documents of the Thirty-seventh Session of the General
Assembly .....................
B. Paragraph 5 of section VI of General Assembly resolution
38/232 .......................

Documents of the Thirty-eighth Session of the General
Assembly ..................... CONT~NT SF THE DOSSI~R (under this heading are Iisted the titles of the
documcnts reproduccd. whilc the ritles of rhore not reproduced are
mentioned in the text) ....................

Application of Mr. Vladimir Victorovich Yakimetz dated 21 June
1984 ...........................
Commentsof the Secretam-General on Aon..cant's written statement
(A/AC.86/R. 117) .....................
Decision of the Committee on the a~~lication of Mr. Yakimetz
rcqucsting an advisory opinion of.;hc International Couri of
Justice in rcspcct of the United Nations Administrative Tribunal
Judnement No. 333 (Yokirner: oaoinsr rhe Secrerarv-Generalof
the Vnited Nations) .... .-................
Rcport of the Committce ...................
Verbatim record of the 5th meeting (held at Headquarters, New
York, on Tuesday, 28 August 1984, at 10.30am.) .......
Administrative Tribunal: Judgement No. 333 ..........
Rulesof procedure ......................
Procedures of the Committee. Second report of the Committee . .

Written Stalements - Expods éeriis

1. WRITTEN STATEMENSTUBMITTE TO THE ~NTERNATIONAL COURT OF
JusrtcE ON BEHALF OF THE SECRETARY-GENEIU OL THE UNITED
NATIONS ..........................
1.Background .......................
A. Summary of the facts .................
B. The previous proceedings................

(i) The Administrative Tribunal: Case No. 322 .....
(ii) The Committee on Applications for Review of
Administrative Tribunal Judgements : Application
No. 32. .....................
II. The questions addressed to the Court by the Committee on
Applications for Review of Administrative Tribunal Judge-
ments .........................

1. Question: In its Judgement No. 333 of 8 June 1984
(AT/DEC/333), did the United Nations Administrative
Tribunal fail Io exercisejurisdiction vested init by not respon-
ding 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 19?3...
A. introduction ...................
(i) Jurisdiction of the Administrative Tribun....
(ii) The Court's approach to allegations of failure to
exercise jurisdiction..............

B. The issue in the present cas.............
(i) The Application Io the Tribunal and the Tribunal's
Judgement ..................
(ii) The Application to the Committee and its outcome CONTENTS XI

Poge
C. Response to question posed by the Committee . . . . 88
(i)Committee's question not at issue between partie. . 89
(ii)The Tribunal is not obligated to answer abstract
questions. . . . . . . . . . . ... . . . . . 89
(iii)Question was not relevant to the Tribunal's adjudica-
tion . . . . . . . . . . . . . . . . . . . . . 89
(a) The Tribunal found no expectancy for further
employment . , , . . . . . , , . . . . . .
(6) The Tribunal found that every reasonable con-
sideration was given the Applicant for a career
appointment , , , . . . . . , . . . . . . .
D. Conclusions . . . . ... . . . . . .. . . . . .
2. Question : 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
A. Introduction . , , , , , . . . . . . . . . .. . .

(i)The Court's approach to questions concerning error
of iaw relating to provisions of the Charter . . . .
(ii)Relationship between the Judgement and the Charter
(iii)The Application to the Committee and its outcome
B. The Judgement in relation to the Charter provisions cited
in the Application to the Committee . . . . . . . . ..
(i)Article 101, paragraph 1, of the United Nations
Charter . . . . . . . . . . . . . . . . . . . .
(ii)Article 100, paragraph 1. of the United Nations
Charter . . . . . . . . . . . . . . . . . . ..
(iii)Article 101, paragraph 3, of the United Nations
Charter. . . . . . . . . .. . . . . . . . . .
(iv) Article 8 of the United Nations Charte. . . . . .
(v) Article 2, paragraph 1, and Article 100,paragraph 2,
of the United Nations Charter . . . . . . . . . .
III. Conclusion . . . . . . . . . . . . . . ... . . . . . .
Appendix. Outline of essential characteristics of career appoint-
ments. fixed-term a~v..ntments and fixed-term appoint-
ments on secondment . . . . . . . . . . . . . . . . . .
1. Career appointment . . . . . . . . . . . . . . .
II. Fixed-term appointment . . . . . . . . . . . . . .
Ill. Fixed-term appointment on secondment . . . . . . . .

STATEMEN ON BEHALF OF Tm APPLICANT MR. VLADIMIR YAKIMETZ
WITH RESPECT TO JUDGEMENN TO. 333 OF THE UNITEDNATIONS
ADMINISTRATIV TRIBUNAL . . , , , . . . , , , , . . . . . .
A. Request to the Court to accept jurisdiction. . . .. . . . . .
B. Explanatory statement . . . .. . . . . . . . . . . . . . .
C. The legal issues. . . . , , . . . . . . . . .. . . . . . .
Preliminary observations on the scope of review . . . . . . .XII COXTENTS

1. Did the United Nations Administrative Tribunal fail to exer-
cisethe jurisdiction vested init by no1responding to the ques-
tion whether a legal impediment existed to the further
employment in the United Nations of the Applicant after the
expiry of his contract,6 December 1983 ? . . . , , . . .
(i) The standard Io be applied . . . . . . . . . . . .
(ii) The issues before the Tribuna. . . . . . . . . . .
(iii) Did the Tribunal "apply ils mind" Io the questions put
by the Applicant, and exercise itsjurisdictional powers
in its resolution?. , , , . . . . . . . . . . . .
A. Concerningthe Applicants contractual status. . .
(a)The Applicant's arguments . . . . . . . . .
(b) The previous jurisprudence of the Tribuna. .
(c) The Tribunal's analysis in Judgement No. 333
B. Concerning the obligation of the Secretary-General
towards the Applicant under General Assembly
resolution37/126, IV, paragraph 5 . . . . . . .

(a) The Applicant's arguments . . . . . . . . .
(c)The Tribunal's analysis in Judgement No. 333.

(iv) Conclusion . . . . . . . . . .. . . . . . . . .
II. Did the United Nations Administrative Tribunal, in the same
Judgement No. 333, err on questions of law relating to provi-
sions of the Charter of the United Nations . . . . . . .
(i) The scope of review . . . . . . . . . . . . . . .
(ii) The Charter provisions at issu. . . . . . . . . .
(iii) In regard to the principle of me. . . . . . . . .
(iv) In regard to the principle of neutral. . . . . . .
(v) In regard to the principle of equali. . . . . . . .
(vi) In regard to the administrative principles of the
Charter . . . . . . . . . . . . . . . . . . . .
(vii) In regard to Chapter XV . . . . . . . . . . . . .
(viii) Conclusion . . . . . . . . . . . . . . , , . . .
Annex A. Statementof the United Nations Staff Union
in respect of Judgement No. 333 (Yakirnerz v. the
Secretary-General of the United Nations). . . . .

2. WRITTEN STATEMEN OF THE UNION OF SOVIET SOCINISTREPUBLICS
3. EXPOSE ÉcRIT DU GOUVERNEMEN ITALIEN . . . . . . . . . . .

4. WRITTEN STATEMEN OF THE GOVERNMEN O FCANADA . . . . . .

5.WRITTEN STATEMEN OF THE GOVERNMEN OTTHE UNITEDSTATE S F
AMERICA. . . . . . . . . . . . . . . ..... . . . . . . . .
1. Introduction . . . . . . . . . . . . .. . . . . . . . .
A. Questions presented . . . . . . . .. . . . . , . . .
B. The Court's jurisdictio. . . . . . . . . . . . . . . .
C. The Court's discretion . . . . . . . . ... . . . . . CONTENTS

II. Summary of the facts ..................
III. The Tribunal's decision .................
A. The questions presented to the Tribunal by the Applicant
B. The issues as defined by the Tribunal ..........
C. Discussion of the Tribunal's Judgement .........
1. The legal reasoning underlying the Tribunal's holding
that the Aoolicant had no legal expectancy of further
employme~~with the United Nations is flawed ....
2. The Respondent was obligated under General Assembly
resolution 37/126, IV, to give the Applicant's request
"every reasonable consideration". It did not comply with
this obligation .................
(a)Resolution 37/126, IV, was hinding upon the Res-
pondent ...................
lb)The Resoondent does not have unfettered and self-

ableconsideration" wa\ giwn the Applicant's request-
/cJUnder either the ~onlicant's or the Resoondent's ver-
. .sion of the facts, th;~espondent abused itsdiscretion
in deciding that it had given the Applicant's request
"every reasonable consideration" ........

3. The Tribunal's holding that the Respondent did not
"allow the wishes of a member State prevail over the
interests of the United Nations" is in error......
4. The Tribunal erred in ruling that the Respondent was
required to take into account the Applicant's desire to
change hisnationality when deciding whether to continue
his employment ..................
5. The Tribunal erred in findine that a secondment contract
was in effect al the tirne the~espondent considered the
Applicant's request for continued employment. Mr.
Ustor's view that a contract of secondment bars con-
tinued employment without the consent of the sending
organization is in erro...............
la)The secondment contract is a symmetrical trilateral
agreement,defined by three sets of reciprocal obliga-
tions ..............
lb)A valid contracr of secondment could no1 have been
concluded among rhc Applicani. the Respondent, and
theGovcrnrneni of the USSR at the beainning of the
Applicant's finalcontinuous term of sérvicein 1977
fc) Even if the Applicant had been employed under
secondment durine his final fixed-term contract. the
waiverof his right;o re-employment with the sending
organization on IO February 1983 would have
vitiated the secondment ..........
/d) A contract of secondment contains no implicit agree-
ment on the part of the receiving organization no1to
employthe employee subsequent to ifsexpiry without
the consent of the sending organization ......XN CONTENTS

Poge
IV. The Tribunal's decision in the light of the questions posed to the
Court by the Committee . . . . . .. . . . . . . . . . . 181
A. The Tribunal failedto exercisejurisdiction vested init by no1
responding to the question whether a legal impediment
existed to the further employment of the Applica. . . . 181
1.The Court defined in the Fasla case the standard of
review to be aoolied Io determine whether jurisdiction
has been exercise. . . . . . . ... . . . . . . . 181
2. The Tribunal failed to "address its mind" Io the question
of whether the contract of secondment contains a
preclusive agreement . . . . . . . . . . . . . . . 182
3. The Tribunal found, albeit implicitly, that an employee's
change of nationalityoes not constitutea legal bar Io
his continued employment by the United Nations . . . 183
B. The Tribunal erred on questions of law relating Io the
Charter of the United Nation. . . . . . . . . . . . . 183

1. The Tribunal's linding that the Respondent had no1
allowed the wishes of a member State to influence its
decision with respect to the Applicant was based upon a
misinterpretation of Article 100, paragraphs 1and 3, of
2. The Tribunal's finding that the Respondent was justified3
in taking in10 account the Applicant's desire to change
his nationality in deciding whether to offer him con-
tinued employment was based upon a misinterpretation
of Article 101,paragraph 3, of the Chart. . . . . . 184

Written Comments - Observations efrites

1. COMMENT ON BEHALF OF THE SECRETARY-GENER OATHE UN~D
NATIONS SUBMITTEP DURSUANT TO ARTICLE 66, PARAGRAP4 H,OF
THE STATUT EF THE INTERNATIONC AOLURT OF JUSTICE. . . . . . 187

Summary of the principal contentionsof the Applican. . . . . . 187
Comments of the Secretary-General . . . . . . . . . . . ... 188
A. The nrinciole of merit (Art. LOI.vara. . . . . . . . .. 189

Summary of the principal contentions of the Applican. . . 189
Comments of the Sccreiary-General . . . . . . . . . . . 189
B. The principle of neutrality (Art. 1. . . . . . . . . . . 190
Summary of the principal contentions of the Applican. . . 190
Comments of the Secretary-General . . . . . . . . ... 190
C. The principle of equality (Art. 2, para. 1, and Art.. . . 191

Summary of the principal contentions of the Applican. . . 191
Comments of the Secretary-General . .. . . . . . . . . 191
D. Administrative principles ofthe Charter (Art. 97and An. 101,
para. 1). . . . . . . . . . . . . . . . . . . . . . . 191
Summary of the principal contentions of the Applicant . . 191
Comments of the Secretary-General . . . . . . . . . . . 192 CONTENTS

E. The career concept (Chap. XV of the Charter) . . . . . . .
Summary of the principal contentions of the Applicant . . .
Comments of the Secretary-General . . . . . . . . . . .

Conclusion . . . . . . . . . . . .... . . . . .. . . .
COMMENT SF THE APPLICANTMR. VLADIMIR YAKIMETZ ON THE
WRITTENSTATEMENTSSUBMITTEO TO THE ~NTERNAT~ONAL COURT
OF JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . .
1. Preliminary observations of the Applicant . . . . . . . . .
II. The first question addressed ta the Court by the Cornrnittee on
Applications for Review of Administrative Tribunal Judge-
ments :did the Tribunal failta exercise the jurisdiction vested
in it? . . . . . . . . . . . . . .. . . . . .. . . . .
III. The second question addressed ta the Court by the Committee
on Applications for Review of Administrative Tribunal Judge-
ments : did the Tribunal err on questions of law relating ta pro-
visions of the Charter? . . . . . . . . . . ... . . . .
1. Article 101,paragraph 1, of rhe United Nations Charter . .
2. Arricle 100.paragraph 1.of the United Nations Charier . .
3. Article 101.oaraeraoh 3. of ihe United Nations Charter . .
4. Article 8 if'the-~nited~ations Charter . . . . . . ..
5. Article 2, paragraph 1, and Article 100,paragraph 2, of the
United Nations Charter . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .

Annex B. Legal opinion on the validity of Judgement No. 333
of the Administrative Tribunal of the United Nations with
ta1 principles of international civil service .a.t. .un.a. . .

1. The Tribunal has failed to uphold the provisions of the
Charter guaranteeing the independence of the international
civil service , , . . . . ... . . . . . . . ... .
1. The Tribunal has sanctioned the existence of a new
category of appointment . . . . . . . . . . . . . .
2. The Tribunal has failed to uphold the discretionary
power of the Secretary-General in thematter . . . . .
3. The Tribunal has failed to uphold respect for the fun-
damental guarantees accorded to United Nations staff
II. The Tribunal has failed to uphold the sovereign policy-
making power vested in the General Assembly . . .. .
Plan of the legal opinion . . . . . . . . . . . . . . . . .
Annex l . .. . . . . . . . . . . . . . . . .. . .
Annex 2 . . . . . . .. . . . . . . . .. . . . . . .

2. COMMENTS OF THE GOVERNMEN TF THE UNITEDSTATES OF
AMERICA . . .. . . . . . . . . . . . .. . . . . . . . .
1. Introduction . . . . . . . . . . . . . . . . . . . . .
II. Comments of the United States of America on the statement
submitted by the Secretary-General of the United Nations. . CONTENTS

A. The Tribunal's judgement fails to meet even the minimal
standard suggested by the Respondent for determining
whether the Tribunal exercised the jurisdiction conferred
uvonit ...................... 230
B. ~he Respondent's statement with respect to the issue of
failure to exercise jurisdiction is ill-founded and unper-
suasive ...................... 231
1. Contrary to the Respondent's statement, the question
of whether a legal bar existed to the furtheremploy-
ment of the Applicant war in issue hetweenthe parties 231
2. The auestion of whether a legal bar existed to the fur-
ther émploymentof the ~~aicant is a concrete issue
that the Tribunal was obligated to address and ad-
judicate .................... 231
3. Adjudication of the question of whether a legal bar
existed to the further employment of the Applicant is
logically required at the threshold of the analysis of
this case .................... 232

C. The Respondent misconstrues the Tribunal's decision
with respect to whether "every reasonahle consideration"
was given to the Applicant's request .......... 233
D. The Respondent's statement with respect to the Com-
mittee's question concerning Charter interpretation
misconstrues the Respondent's obligations under the
Charter ..................... 234
1. Article 101................... 234
2. Article 100, paragraph 1 ............. 235
3. Article 100..nara-.anh 3 ............. 236
III. Comments of the United States on the Statement suhmitted
hy the USSR ................. 236
A. The Statement of the USSR misconstrues the issues raised
hv the Committee with resnect to exercise of the
Tribunal's jurisdiction ........ 236
B. The Statement of the USSR with respect to the question
posed by the Committee to the ~ourtconcerning exercise
of jurisdiction is inconsistent with the nature of employ-
ment contracü in the United Nations. misconstrues the
effect of Staff Rule 104.12 (bl. and misinternrets the
Tribunal's judgemeni with respect to the effeci of change
of nationaliiy on an empl-ye~'s eligibiliiy for furiher
emolovment ................... 237
C. hé "answer" of the Soviet Union to the question posed
hy the Committee to the Court concerning Charter inter-
pretation ................... 238
IV. Conclusion ..................... 239

Reading of the Advisory Opinion ................. 241

Correspondence - Correspondance ................ 247WRITTEN STATEMENTS

EXPOSÉS ÉCRITS 1. WRITTEN STATEMENT SUBMITTED

TO THE INTERNATIONAL COURT OF JUSTICE
ON BEHALF OF THE SECRETARY-GENERAL

OF THE UNITED NATIONS

LBACKGROUND

A. Summary of the Facts

1. The facts relevant to the proceedings in the Administrative Tribunal of the
United Nations to which Judeement No. 333 relates were outlined bv the
Tribunal in that Judgement (d&. No. 9, pp. 43-49, supro). In so far as théyare
relevant to the questions addressed to the Court in the present proceeding (see
nara. 43 helow): the facts mav be summarized as follows.
7~~ ~ ~ ~ ~ ~
2. On 20 ~uii 1977 the ~eput~ Permanent Rcprcsentative of the Union of
Soviet Socialist Republics (USSR) recommended 111the Assistant Secreiary-
General for Personnel Servicesof the United Nations ihai a Soviet professional.
Mr. Vladimir V. Yakimetz [the Applicani to whom Judgcmcnt No. 333 of the

Tribunal relaies]' be appointed Io the United Nations Secreiariai. The Appli-
cant had been previously employed by thc United Nations Secretariat in 1969-
1974as a reviser (P-4) in the Russian Translation Serviceof the Unitcd Nations
Secretariat in ~ek ~ork.

3. On 31 October 1977 the Appointment and Promotion Board recom-
mended, and the Officer-in-Charge of the Office of Personnel Services
thereafter approved on behalf of the Secretary-General, the appointment of the
Applicant.
4. On 23 November 1977the Deouty Chief, Secretariat Recruitment Service,

Office of Personnel Services, wrotito ihe Applicant, c/o United Nations Infor-
mation Centre in Moscow, on hehalf of the Secretary-Generai of the United
Nations. offerina a five-year fixed-term ap~ointment, on secondment from the
USSR Go\ernm;nt. ai step IV of the ~irsi~fficer (P-4) level, as a reviser in the

Russian Service. Translation Division. Deparimeni of Conference Services.
5. On thesame dav. thc Secrctariat of the Uniied Nations sent a Note Vcrbalc
to the Permanent Mission of the USSR, informing the Mission that the
Organization had offered a five-year fixed-term appointment, on secondment
from the USSR Government. to the Aoolicant.
~ ~ ~ ~~ ~~~ ~ ~ ~
6. On 28 December 1977a'ietter of abpointment was issued on behalf of the
Resoondent. was accepted by the Applicant on 24 January 1978.but took effect
as f;om 27 ~ecember-1977[the letter of aooointment did no1 mention second-
ment and, under item 5 ("~~ecial conditi&sn), specified "None".

7. On 5 October 1981the Applicant was transferred as a Programme Officer
to the Programme Planning Section, Programme Planning and Co-ordination
Office, Department of International Economic and Social Affairs.
8. On 22 October 1982the Secretariat of the United Nations requested the
assistance of the Permanent Mission of the USSR in securing the consent of its

' In thc interestof uniforrnityof citation,Mr. Yakimetzwillbe refcrrcdto as the
Applicant and theSccrctary-Genera lsthe Respondent.sinccthcscare the tems used in
Tribunalproceedingr78 APPLICATION FOR REVIEW

Government to the extension of the Applicant's secondment to the United
Nations for one year, that is, up to 26 December 1983.
9. On 15 November 1982 the Permanent Mission communicated to the
United Nations Secretariat ils agreement to the extension of the contract of the
Applicant Io 26 December 1983.
10. On 6 December 1982the Applicant was recommended for promotion to
the Senior Officer (P-5) level by the Assistant Secretary-General, Programme
Planning and Co-ordination Office.

II. On 8 December 1982 a Personnel Officer in the Office of Personnel
Services. acting in the name of the Respondent issued a letter of appointment
to the Applicant. This letter of appointment was signed by the Auulicant on 9
December 1982. It nrovided for anextension of his-aonointment for one vear~ ~ ,---.
to take effecton 2fDecember 1982,specifying under'iiem 5: "On secondment
from the Government of the Union of Soviet Socialist Republics."
12. On 8 February 1983the Assistant Secretary-General, Programme Plan-

ning and Co-ordination Office, expressed his belief to the Applicant that it
would be in the interests of the Office Io have his services continue, and
reauested him to indicate at his earliest convenience whether he would be in a
po;ition to accept such an extension.
13. On 9 Febmary 1983the Applic~~t applie~~for asylum in the United States
of America.
14. On 10 February 1983 the Applicant advised the Permanent Represen-

tative of the USSR to the United Nations that he was lhereby resigning from
his position with the Ministry of Foreign Affairs of the USSRand from dl other
officiai positions that he held and that he had made an application to the
Government of the United States of America requesting asylum.
15. On 10 February 1983 the Applicant advised the Respondent that he
intended to acquirepermanent residence status in the United States of America,
that he had made an aoolication to the Government of the United States - ~ ~ ~ ~ - -

reqnesting asylum, that he.had resigned-from dl official positions he held in the
Government of the USSR; he also enclosed a copy of his resignation and
assured the Resuondent of his continued dedication and devotion to the United
Nations and of his wish and intention to continue t6 perform al1his obliga~o~~
under his employment contract.
16. On 28February 1983the Director, Divisionof PersonnelAdministration,
Office of Personnel Services,informed Applicant of the Respondent's decision
to place him on special leave with full pay, effective 1 March 1983and until

further notice, in accordance with Staff Rule 105.2 (a),and informed him that
any other decision pertaining to his case would be taken by the Respondent at
a later stage.
17. On 1March 1983the Applicant requested the Director, Divison of Per-
sonnel Administration. Io advise him of the precise reasons as to why he had
been placed on specid leave as well as the effect of the leave on: his use of
United Nations facilities; his continuation as a member of the Appointment and

Promotion Committee and as Vice-Chairman of ils Third Working Group; the
promotion which was in Drocess for him: and his career develooment at the
United Nations including a possiblee.xtensionof his appointment. and indicated
that he would look forward to receiving writien answers to his questions at the
Director's convenience, but that in the meanwhile he would remain actively at
his post.
18. On Il March 1983the Director, Division of Personnel Administration,
Office of Personnel Services, adnsed the Applicant that in the exercise of his

authority and responsibility as the chief administrativeofficer of the Organiza- STATEMENT OF THE SECRETARY-OENERAL 79

tion, the Respondent had determined that, at that juncture, and pending further
review, it was in the best interests of the Organization that he not enter the
premises of the United Nations, reauested him to com~lv with this decision of
Ïhe Respondent with immediate efiea and until furth;r.notice, informed him
that he would he adviscd in due course of any modification to this instruction,
assured him that the Appointment and Promotion Board would givehis promo-

tion due consideration~at an aonrooriate tim~ ~ ~the~ ~ ~ ~ of 2s oroceedines. "~.
indicated that consideration ofthe ;ossible extension of hisappoiniment at that
time would be premature. and, finally, advised him that he might also wish to
refer to Staff Rule 104.12 (b) (relating to fixed-term appointments and quoted
in para. 66 below) which was applicable to this issue.
19. On 17March 1983the Aooiicant reauested the Res~ondent to reviewthe
decision to place him on specialléave,rcnewed hisrequestfor a written cxplana-
lion as IO why itwas considered in the brsr interest of the Organization that he

not enter the premises of the United Nations and advised that, on the advice of
his counsel and under protesi, he would complywith the Respondent's decision.
20. The Application to the Tribunal indicaies ihat the Applicant continued
to work on his assinnments off the nremises and. in due course. when the Pro-
gramme Planning and CO-ordination Office was relocated in the Summer of
1983from the Secretariat buildina to rented accommodation across the Street,
he was permitted officially to reGin his section and to resume his dulies.
21. On 29 June 1983the Applicant was promoted to the Senior Officer (P-5)

level with effect from 1 April 1983.
22. On 25 October 1983 the Applicant reminded the Assistant Secretary-
General, Programme Planning and Co-ordination Office, that his fured-term
contract with the United Nations was due to expire on 26 December 1983,
recalled their discussions on the orosnects of his continuine-emol.-ment in the
Office, recited the elements which could contribute to his potential usefulness
to the Organization and, finally, expressedhis hope that the Assistant Secretary-

General would find it possible on the basis of his performance to recommend
a funher extension of his contract with the United Nations or, even better, a
career appointment.
23. oh8 Novcmber 1983the Asistant Secretary-General. Programme Plan-
ning and Co-ordination Office. acknouledged this reminder in connection with
the expiration of Applicant's contract, commended his contribution to the work
of that Office and also to theoffices in whichhe had served before and indicated
that, from his perspective as head of that Office, he found no difficulty in

recommending a further extension of Applicant's contract and intended to do
so at an appropriate time.
24. On 23 November 1983the Deputy Chief, Staff Services, Office of Per-
sonnel Services, upon instruction by the Office of the Secretary-General,
informed the Applicant that his fixed-term appointment would not be extended
beyond its expiration date, Le., 26 December 1983.
25. On 29 November 1983the Applicant recalled to the Assistant Secrefary-

General for Personnel Servicesthe information that the Applicant had recently
received from the head of his Office and cited naraaraph 5 of section IV of
General Assembly resolution 37/126 whichprovides th; siff members on fixed-
term appointmcnts upon completion of rive years of coniinuing good service
shall be given every reasonahle consideration for a career appointment. The
Applicant requested a three-month extension of his contract in order to allow
the Panel on Discrimination and Other Grievances to look into his case and
advised that this request was without prejudice to his claim to a longer-term
appointment in the Organization.80 APPLICA~ON FOR REVIEW

26. On 2 December 1983the Assistant Secretary-General, Programme Plan-
nine and Co-ordination Office. recalled to the Assistant Secretarv-General for
personnel Servicesihai the former had recentlyassured the ~p~licani ihat iwas
intcnded io recommend a furiher cxtcnsion of his contract, reiierarcd the view
that it was in the best interest of his Office to continue to have t~e~services of
the Applicant and strongly recommended that hisappointment be cxtended.
27. On 13Dcccmber 1983the Applicant's United Naiions counsel.chosen by
him from the oanel of counsel comorised of United Nations staff members~.
wrote to the ~ecretary-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 bis 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.
28. On 21 December 1983the Assistant Secretary-General for Personnel Ser-

vices advised the Applicant that the Secretary-General had given careful con-
sideration to his reauest of 13December 1983.distinauished hissituation 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
a~oointment. maintained the oosition stated on 23 November 1983.declined to
foiward his case to the ~ppointment and Promotion Board and airced 10 thc
direct submission of any appeal io the Uniied Nations Adminirtrativc Tribunal
(the Administrative Tribunal).
29. On 26 December 1983the Applicant's fixed-term appointment expired in

accordance with its terms and he was duly separated from service with the
United Nations.

B. The Previous Prnceedings

(i) The Administrative Tribunal: Case No. 322

30. On 6 January 1984 the Applicant filed an Application with the Ad-
ministrative Tribunal. requesting the Tribunal:

"A. To consider his case at the Spring 1984session of the Tribunal.
B. To order the rescission of the administrative decision, dated 23
November 1983, not to consider an extension to (sic) the Applicant's
United Nations service.
C. To adjudge and declare that no legal impediment existed to his fur-
ther United Nations employment after the expiry of his contract on 26
December 1983.

D. To adjudge and declare that he had an expectancy of further
employment.
E. To adjudge and declare that he was illegally denied his right to
reasonable consideration for a career appointment.
F. To order that his name be forwarded to an appropriate body to give
him such reasonable consideration for a career appointment.
G. To order payment to the Applicant of salary lost during the period
of unernployment between the expiry of his contract and the reconstitution
of his career.

H. To order reimbursement of expenses, if any, reasonably incurred by82 APPLICATION FOR REVIEW

(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 Appli-
cant'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 con-
sideration for a career appointment.
3. The Applicant was denied the reasonable consideration for further
employment to which he had a right.

Whereas the Respondent's principal contentions are:

1.The Applicant has no entitlcmcnt, 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
neriod of United Nations aooointment did not result in new terms
of contract with the unitid Nations;
(ii) the commendations by supervisors did not commit the Secretary-
General to extend the appointment. The pre-conditions to con-

sideration 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 the Staff Regulations:

(a) in reaching his decision, the Secretary-General took into account al1
the circumstances in the case;
(b) in taking his decision in the case, the Secretary-General acted in the
interest of the Organization." (Doc. No. 9, pp. 49 to 50, supro.)

36. The Tribunal then identified the legal issues in the case, as follows:

"(a) whether the Applicant's work with the United Nations in different
periods created a legal expectancy for further servicewith the United
Nations;
(b) whether, and if so to what extent, paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982which reads:

'Decides that staff members on fixed-lerm oppoinlments upon com-
pletion of jive years of continuing good service sholl be given every
reasonable consideralion for o career appointment'
has been carried out;
(c) the consequences of the application of United Nations rules and
regulations in relation to the United Nations law on resident status
and citizenship." (Doc. No. 9, p. 50, supra, para. 1.) STATEMENT OF THE SECRETARY-GENERAL 83

37. On issue (a), the Tribunal unanimously concluded that

"al1 three parties (the Respondent, the Government of the USSR and the
Applicant) consideredthe Applicant's appointments of 28 December 1977
and 8 December 1982as being on secondment from the USSR" (doc. No.
9, p. 51, supra, para. III and dissenting opinion, p. 56, supra, para. 1)

and that

"it does not appear that the Applicant has produced evidence of cir-
cumstances sufficient to establish that he had a legal expectancy of any
type of further appointment following the end of his fixed-term appoint-

ment" (doc. No. 9, p. 51,supra, para. VI and p. 56, supra. dissenting opin-
ion, para. 1).

38. On issuefb). the Tribunal maioritv concluded that "the plain and simple
infcrencc is thar the Kespondenr had-giventhc rcquired (Le.. 'every reasonable')
consideraiion for a career appointment for the Appliianr" (doc. No. 9, p. 54.
su.ra...ara XVI). The Siaiement by hlr. Usior noied that "the Applicanr war
in [his] view no; eligible for consideration for a career appointment" (doc.

No. 9, p. 56. supra, Statement by Mr. Ustor, third para.). Although Mr. Kean
aereedwith the reiection of the Aoolicant's claim in so far as itwas basedupon
expectancy of a firther appointme&, he considered that "the Tribunal should
accept the Applicant's plea that he was illegally denied his right to reasonable
consideration for a carëer aooointment" (doc. No. 9. p. 59, supra, dissenting

immediate problem" (doc. No. 9. p. 52, supra, para. XII)

(ii) The Commitfee on Applicarions for Review of Adminisrrative Tribunal
Judgemenls: Application No. 32

40. On 23 July 1984 the Committee on Applications for Review Of
Administrative Tribunal Judgements (the Committee) received an application

from the Applicant (doc. No. 1). in accordance with Article II, paragraph 1,
of the Statute of the Administrative Tribunal (doc. No. 16). The Applicant
alleged that the Tribunal had exceededitsjurisdiction and competence,that the
Tribunal had failed to exercisejurisdiction vested in it;that the Judgement of
the Tribunal had erred on questions of law relating to provisions of the United

Nations Charter and that the Tribunal had committed fundamental errors of
procedure which occasioned a failure of justice.
41. On 10 August 1984the Respondent filed his comments (doc. No. 4) on
the Application. 'The Respondent submitted that the Tribunal had properly
exercisedils jurisdiction and competence under Article 2 of its Statute when it

heard and passedjudgement on the Application (to the Tribunal) in the manner
which is reflected in ils Judgement in the case, that the Tribunal had correctly
interpreted applicable provisions of the Charter in favour of the Respondent
who properly discharged his responsibilities as chief administrative officer of
the Organization and that the Tribunal had not committed an error, let alone

a fundamental error of procedure which could have occasioned a failure of
justice.
42. On 21August 1984the Committee wasconvenedto consider the Applica-
tion. The Committee met for this purpose in closed meetingson 21, 22 and 23

August 1984 (doc. No. 7, para. 7) and in a public meeting on 28 August (doc.
No. 8). In compliance with the provisions of paragraph 1 of Article IX of its STATEMENT OF THE SECRETARY-GENERAL 85

"l'hcCommitree on Applications for Rcvieu of AdministraiivçTribunal
Judgcmcnts at the 4th meeting of ils twcnty-fourih session on 23 August
1984decided that thcre was a sub\taniial bacis. within the meaning of Arti-
cle IIi~frhe Staiute of ihe Administratii~e Tribunal. for the applicaiion for
revieu of AdministraiireTribunal Judgemcnt No. 333deliiered ai Genera
on 8 June 1984

Accordingly, the Committee on Applications for Review of Ad-
ministrative Tribunal Judgements requests an advisory opinion of the
International Court of Justice on the following questions:
(1) In ils 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 impedi-
ment existed Io the further employment in the United Nations of the
Applicant alter the expiry of his contract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judge-
ment No. 333, err on questions of law relating to provisions of the
Charter of the United Nations?" (Doc. No. 6.)

Sixteen members of the Committee voted in favour: Belgium, Canada, Colom-
bia, France, Guyana. Japan, Norway, Panama, Sierra Leone, Singapore,
Sudan, Swaziland, Thailand, United Kingdom, United States and Venezuela;
nine members voted against : Algeria, Bhutan, Burundi, Czechoslovakia, Ger-
man Democratic Republic, Libyan Arab Jamahiriya, Nepal, Tunisia and
USSR; one member abstained: Pakistan (Doc. No. 8, p. 35, supro). There being
16votes in favour, 9 against and I abstention, the decision was adopted. After

the decision the following members of the Committee made statements:
Bhutan, France, USSR, United States and Czechoslovakia (Doc. No. 8, pp. 35-
42, supra) '.

II. THE QUESTIONS ADDRESSEI) l'O THE COURT BY THE
COMMITTEE ON APPI.ICATIONS FOR REVIEW OF AI>.MINISTRATIVE
TRIBUNAL JUDGEMENTS

1. Question: In Its Judgement No. 333 ofII June 19x4(A'I'/UEC/333!, Did Ihe
Uniled Nation. Administrative Tribunal Fail Io Exercise Jurisdiction Veïted in
Il bv no1 Resoonding to the Oueslion Whether a Le~al Impedimenl Kxisled Io
the burther ~mployment in th; United Nations of thei~pplican1 aflerthe Expiry
of His Contract on 26 December 1983?

A. ~NTRODUCTION

44. In order Io ascertain whether the Tribunal had failed Io exercise its
jurisdiction it is first necessary to define that jurisdiction and then to examine
the actual decision on the basis of the facts and pleas presented Io it.

' AlthoughPanama madea Statement(doc. No. 7,para. 15).ilwasno1recorded in
the VerbatimRecord(doc. No. 8) asthe Statementrelatedonlyto atechnicalcorrection
relatingto the annauncernentofthe vating record.86 APPLICATION FOR REVIEW

(i) Jurisdicrion of the Adminisrrative Tribunal
45. Paragraph I of Article 2 of the Statute of the Administrative Tribunal
(doc. No. 16) provides as follows:

"1. The Tribunal shall be competent 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. The words 'contracts' and 'terms of
appointment' include al1pertinent regulations and rules in force at the time
of the alleged non-observance, including the staff pension regulations."

46. Paragraph I of Article9 of the Statute provides. inrer olia, as follows:

"1. If the Tribunal finds that the application is well founded, it shall
order the rescinding of the decision contested or the specific performance
of the obligation invoked. At the same time the Tribunal shall fix the
amount of compensation to be paid to the applicant for the injury sus-
tained should the Secretarv-General. within thirtv davs of the notification
of the judgement, decideVsinthe in~erestof theUnited Nations, thatihe
a..licant shall be com~ensated without further action beine. t-ken in his
case; ..."

(ii) The Court's Approach to Alleg[rlions of Failure to Exercise Jurisdiction

47. In its Advisory Opinion of 12 July 1973, Applicalion for Review of
Judgement No. 158 of the Unired Narions Adminisrrurive Tribun01 (I.C.J.
Reports 1973. p. 166) (hereinafter the "Fasla Opinion"), the Court declared
that:

"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 opin-
ion 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 Io merits or procedure, show that any objection made to the
Judgement on one of thegrounds mentioned in Article 1I is well founded."
(I.C.J. Reports 1973, pp. 187-188, para. 47.)

48. The Court cited this statement in Applicorion for Review of Judgemenr
No. 273 of rhe Unired Norions Adminisrrorive Tribunal (I.C.J. Reports 1982,
p. 325at p. 356, para. 58) (hereinafter the "Mortished Opinion"). Furthermore,
theCourt gave, in its Fasla Opinion, detailed guidance in evaluating a challenge
that the Tribunal failed to exercise jurisdiction vested in it:

"51. In the Court's view. therefore. this eround of challenee covers
situations where the ~ribunal has eitherconsc~usly or inadverteitly omit-
ted to exercisejurisdictional powers vested in it and relevant for its decision
of the case or of a particular material issue in the case. 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 no1 merelv Io the form. Conseauentlv. th..mere fact that the
Tribunal has purported to exercise ils powers with respect to any particular
material issue will not be enough: it mus1in fact have applied them Io the
determination of the issue. No doubt, there may be borderline cases where
it may be difficult Io assess whether the Tribunal has in any true sense con- STATEMENT OF THE SECRETARY-GENERAL 87

sidered and dcterminçd the exersisc of rekvant jurisdictioiial potiers. But
that docs not alter the duty of the Court IO appresiate in eaçh instance. in
the Iiaht of al1ocrtinent elements. uhether thr Tribunal did or did not in
fact ekercise wh respect to the case the powers vesfed in it and relevant
ta ils decision." (I.C.J. Reports 1973. pp. 189-190, para. 51.)

The Court cautioned, however, that:

"The test of whether there has been a failure Io exercise jurisdiction with
respect Io 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
judgement :the test must be the real one of whether theTribunal addressed
ils mind to the matters on which a plea was based, and drew ifsown conclu-
sions therefrom as to the obligations violated by the respondent andas to
the compensation to be awarded therefor." (I.C.J. Reporrs 1973, p. 193,
para. 56.)

49. In this context it ought 10 be noted that the jurisdiction of the Tribunal
is limited Io determining whether contracts or terms of appointment have been
observed. The Tribunal exercises ils iurisdiction if it examines the substance of
an Applisant's allepaiions or pleasJnd determines whether ihose allegationi
constitute "non-observance of sontracts of cmployment of staff members of the

Secretariat of the United Nations or of the terms of ao.o.ntment of such staff
members" (see para. 45 above).

B. THE ISSUE IN THE PRESENT CASE

50. The facts of this case, including the Pleas and arguments submitted ta the
Tribunal bv the Aoolicant toeether with those of the Resoondent. are set out
in Part 1 0.fthis wiitten ~tafement (see paras. 1 to 35 aliove). ~he real issue
between the parties-and thar upon which the Tribunal adjudicated-was
whether the Applicant's rights were violated by the decision of the Respondent

no1 to grant him a further appointment after 26 Decemher 1983. be it a fixed-
term appointment on secondment, a fixed-term appointment or a career
appointment (the essential characteristics of these appointments are descrihed
in the Appendix).

(i) The Applicarion ro rhe Tribunal and the Tribunal's Judgemenr

51. The Tribunal commenced its Judgement by setting out the Applicant's
Pleas, including the Plea direcfly relevant fo the first question addressed by the
Committee Io the Court for an advisorv ooinion. i:e..~A.olic..t's Plea C. "Io
adjudge and declare that no legal impediment existed to his further ~nited
Nations employrnent after the expiry of his contract on 26 December 1983"
(Judgement, p. 43. supra; doc. ~0.9).
52. The Tribunal summarized the Applicant's principal contentions in sup-
port of this plea as follows:

"1. No legal impediment existed at the fime of the contested decision,
or exists now, to the continuation of the Applicant's service with the
United Nations:

/a) the Applicant was not in any legally cognizable sense on secondment ;
(b) after 10February 1983. the Respondent had neither the obligation nor
the right Io solicit or receive instructions as Io the Applicant from any
authority extraneous to the Organization;88 APPLICA~ON FOR REVIEW

(c) no legal constraint existed, after 26 Decemher 1983,on the Applicant's
further appointment to the United Nations." (Judgement, p. 49, supro;
doc. No. 9.)

53. The Trihunal then assimilated the Annlicant's Plea and his contentions
in support thereof to its analysis of what it'had identified as the legal issues
involved in that Plea and supporting contentions, namely:

"(O) whether the Applicant's work with the United Nations in different
periods created a legal expectancy for further service with the United
Nations :
(6) whether, and if so to what extent, paragraph 5 of Ceneral Assembly
resolution 37/126, IV, of 17 Decemher 1982which reads:

'Decides that staff rnernhers on fixed-term appointments upon comple-
tion of five years of continuing good serviceshall he given everyreasonahle
consideration for a career appointment'
has heen carried out." (Judgement, p. 50, supro, para. 1;doc. No. 9.)

54. Pursuant to Article 2 (1) of its Statute, it was not incumhent upon the
Trihunal to givean advisory opinion on the Plea, but rather to examine the Plea
to determine the legal issues it contained that were relevant to the Tribunal's

iurisdiction. The Tribunal did this hv identifvine that the Plea entailed an
hlegation that the Applicant had a legaiexpectancGor further employment and
involved determining whether the Aoolicant had heen given every reasonahle
consideration for a career aooointm&t oursuant to nariaraoh 5 of section IV
of resolution 37/126 (~udgement, p. i0, supra, para. ï; doc. No. 9). The
Trihunal carried out this function hy examining and adjudicating upon those
issues and concluding that the Applicant's terrns of employment were not
violated hy the failure Io offer him a further appointment.

(ii) The Application lo the Committee and Ils Outcome
55. The Application to the Committee argued that the Trihunal failed to

exercisethe jurisdiction vested in it by its ~tatÜteby allegedly failing to respond
to the Plea to determine whether a legal impediment existed to his further
em~loyment with the United Nations after the ex~iration of his a~oointrnent on
26 ~eiemher 1983 (Application to Comrnittee, Sec. II; doc. N;.. 1).
56. The Committee requested the Court to advise whether the Tribunal failed
to exercisethe iurisdiction vested in~t~,v notesnondine to the auestion whether
a lcgal impçdihent exisied to the further îrnpioymenïof the Àpplicant in the
United Nations afier the expiry of his ioniract on 26 December 1983(Decision
of Committee: doc. No. 61:Most statements made at the ouhlic meeting of the
Committee weie against ~"hmission of the question to thé Court (docr~o. 8)
and therefore are not directly relevant to interpretation of that question.

57. This Written Statement will submit: first, that the question to which the
Committee referred was not in issue hetween the parties; second, that the
Trihunal does not have jurisdiction to answer or advise on ahstract questions;
and third, that an answer, in terms, to the question was not required in logic STATEMENT OF THE SECRETARY-CENERAL 89

(i) Commirree's Question nor or Issue herween Parties

58. At the outset, it should be noted that the question whether a legal impedi-
ment existed to the further emn.ov,ent of the Annl..ant after the exoi.v .f his
coniraci of employment on 26 December 1983 (Desision of Committee: doc.
No. 6) was. in realiiy. noi ai issue beiween the parties. This is so because the
Kespondent indiçated io the Tribunal rhat he did "noi di5pute thar iwas uiihin
the Secreiary-General's auihoriiy and discretion Io re-appuini the Applicani

afier the enpiry of his conirasi" (Respondent's Ansuer io Tribunal. para. 27
(c); doc. N;. 21). ~onsequently,'there appears to have been no cal1 for the
Tribunal to have dealt with this question explicitly.

(ii) The Trihunol Is not Ohligored to Answer Ahstrocr Questions

59. Consistent with the limited jurisdiction of the Tribunal (see paras.45 to
46 ahove) Article 9 provides that the Tribunal may only rescind the contested
decision or order specific performance of an obligation and, at the same time,
must fix damanes in lieu of further action if the Secretary-General decides to
maintain the décisionin the interests of the ~rganizatio". It follows that the
Tribunal does not have the power to giveadvisory opinions and so does not have
to-and indeed cannot-respond to al1 questions posed to it by Applicants
but must limit itself to pass judgement upon allegations (or pleas) of non-
observance of contracts and terms of appointment. The Tribunal must, there-
fore, analyse any pleas submitted to it to determine whether those pleas involve
an allegation of non-observance and, if so, then pass judgement on those
allegations.
60. In other words. the Tiihunal cannot simulv answer in termsquestions and
pleas suhmitted to it but must determine whether an issue exists upon which it

iscomoetent to adiudicate pursuant to Article 2 of its Statute. This is the reason
why the Tribunalopened & Judgement by associating the relevant arguments
with the legal issuesraised by Mr. Yakimetz's Plea that it "adjudge and declare"
that no leaal imoediment existed to his further employment hy the United
Nations (~Ldgemént,p. 50, supro, para. 1; doc. No. 9) and thenadjudicating
upon the Application on the basis of those legal issues.

(iii) Question Wos nor Relevmt ro the Tribunal's Adjudication

61. A determination by the Tribunal on the existence or otherwise of a legal
impediment to the Applicant's further employment would be necessary ifhe had
a legal expectancy for further employment and ifhe had not been given "every
reasonable consideration" for a career appointment pursuant to paragraph 5of
section IV of resolution 37/126. If those premises were true the legal rights of
the Applicant would have been violated and he would have been entitled to the
remedies provided in Article 9 of the Tribunal's Statute, unless the Tribunal
determined that there was a legal impediment to his further employment. How-
ever, as discussed in turn below, the Tribunal found that neither of these pre-
conditions existed that would have required an answer in terms to the question
posed by the Applicant. Since neither of these pre-conditions existed it follows

logically that no answer is required.
(a) The Trihunol found no expectancy for further employment

62. The Tribunal rejected the contention of the Applicant that he was no1on
secondment by finding that "it can be concluded that al1 three parties (the!XI APPLICATION FOR REVlEW

Respondent. the Ciovrrnment of the USSK and the Appliiani) considered the
Applicani'\ appointmenis ot 28 Dccemher 1977and 8 Deceiiiber 1982 a, being
on secondment from the Covernment of the USSR" (Judaem.nt.-o. 51. s.Dro...
para. III; see also p. 51, supro, para. VII; doc. No. 9).
63. The Tribunal then considered whether the Applicant had a legal expec-
tancy to a renewal of that fixed-term appointment on secondment and con-
cluded that such expectancy did not exist :

"IV. In his letter of 21 December 1983addressed to the Applicant, the
Respondent concluded that, since the involvement of al1parties concerned
was necessary for the renewal of the Applicant's appointment, such
renewal was impossible in the circumstances.Thisaccords with the analysis
of secondment in the Tribunal's Judgement No. 92 (Higgins) as requiring
the agreement of the 'three parties to the arrangement. namely, the releas-
ing organization, the receiving organization and the staff mrmber con-
cerned' (oara. VI) and with the decision of the Tribunal in oaraaraoh V of
~udgement No. 1'92(Levcik) that 'any subsequent change in the Grms of
the secondment initially agreed on. for example, its extension, obviously
requires the agreementof the three parties involved'." (Judgement, p. 51,
supro, para. IV; doc. No. 9.)

64. The Tribunal thereupon examined the Applicant's contentions that his
resignation from the service of the Covernment of the USSR on 10 February
1983 created a new contractual relationship between himself and the United
Nations, which relationship was accepted by the latter (Judgement. p. 52, supro,
para. VIII; doc. No. 9). After reviewing the circumstances surrounding his
resignation (Judgement, pp. 52 to 53, supro, paras. X to XII; doc. No. 9), the
Tribunal reached the following findings of fact:

". . .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 al1three parties
and that no tacit agreement existed between the Applicant and the Respon-
dent between 10 February 1983 and 26 December 1983 changing the

character of their relationship" (Judgement, p. 53, supra, para. XIII;
doc. No. 9).
65. Having reached the conclusion ihat extension of the fixed-term appoint-
ment on secondment was not possible without the consent of al1 three parties
-which conclusion is not disputed by the Applicant-the Tribunal examined
whether the refusal to grant the Applicant a further appointment constituted a

non-observance of his contract of employment or violated the terms of his
appointment.
66. The Applicant's final fixed-term appointment provided, inler alio, as
follows :
"You are hereby offered a FIXED-TERM APPOINTMENT in the Secretariat

of the United Nations, in accordance with the terms and conditions
specified below, and subject to the provisions of the Staff Regulations and
Staff Rules. together with such amendments as may from lime to time be
made 10 such Staff Regulations and such Staff Rules . . .
.................................
3. Tenure of oppointment

This temporary appointment is for a fixed-term of one year from the STATEMENT OF THE SECRETARY-GENERAL 91

effective date of appointment shown above. It therefore expires on the
twenty-sixth day of December 1983.
. . .The Fixed-TermAppointment does not carry any expectancyof renewal
or of conversion to any other type of appointment in the Secretariat of the

United Nations." (Letter of Appointment; doc. No. 20. Annex 19.)
67. This language is based on Staff Rule 104.12which provides, in relevant
parts, as follows:

"Rule 104.12

TEMPORARY APPOlNTMENTS

On recruitment staff members may be granted one of the following types
of temporary appointments: probationary appointment, fixed-term ap-
pointment, or indefinite appointment.

(a) ~iobationar~ appointment

.................................
(b) Fixed-term appointment

T~ ~fixe~-term aoo..ntment. havine. an exoiration date specified in the
Icttcr of appointment. may be grantedior itp;riod nor ex;ceding Cive)cars
to Dersons recruiied for service of pro~ribed durarion. including perrons
temoorarilv seconded bv national Governments or institutions for service
with the United Nations. The fixed-term appointment does not carry any
expectancy of renewal or of conversion to any other type of appointment.

(c) Indefinite appointments
. .." (See UN Staff Rules, doc. No. 18.)

68. The appointment also specified, under Special Conditions, that the
appointment was "On secondment fromthe Government of the Union of Soviet
Socialist Reoublics" (Letter of Aooointment; doc. No. 20, Annex 19).
69. The Applicant;s contract oi&nployment thus clearly stated that no legal
expectancy to further employment existed. However, the Tribunal's juris-
prudence recognizes that despite such unequivocal contractual terms, cir-
cumstances may arise which create a legally enforceable expectancy to further

employment (Judgement, p. 51, supra, para. VI (doc. No. 9) citing Judgement
No. 142 (Bhaffacharyya) (doc. No. 23) and Judgement No. 205 (El-Naggar)
(doc. No. 24)).
70. The Tribunal examined al1the circumstances of the case and concluded
that, in the present case. no circumstances existed to create a legal expectancy
of future employment:

"Applying the principles followed in Judgements Nos. 142 (Bhal-
facharyya) and 205 (El-Naggar), it does not appear that the Applicant has
rroduced evidence of circumstances sufficient to establish that he had a
legal expeitancy of any type of further appoiniment follotvinp the end of
his fixed-ierm a~~ointmeni." (Judgement. p. 5l.supra. para. VI: dos. NO.

71. The seoarate statement of Mr. Ustor. which is no1 part of the majority
Judgemeni, did not dispute the finding thiit. in acsordance uiih the Tribunal's
juricprudencc on legalexpectancy, the Applicanl did no1have a Iegalexpertancy92 APPLICATION FOR REVIEW

to a further appointment. The statement, however, noted that Applicant was
not in any event entitled to a career appointment because of the special nature
of a fixed-term appointment on secondment (Judgement; p. 56, supra, state-
ment by Mr. Ustor; doc. No. 9).
72. Mr. Kean, although delivering a dissenting opinion, agreed with the
majority that the Applicant was on secondment during his last appointment and
that renewal of a fixed-term appointment on secondment would require consent
of al1parties. MI. Kean also agreed with the inajority that there was no expec-
tancy of further employment (Judgement. p. 56, supra, dissenting opinion of

Mr. Arnold Kean, para. I;doc. No. 9). Mr. Kean differed with the majority
on whether the Applicant received "every reasonable consideration" for a fur-
ther appointment (see paras. 78 to 79 below).
73. The Tribunal concluded that the Avvlicant had no enforceable legal right
ro further employment in the United p ai ion,. It neccssarily follows that ;hc
failure by rhc Respondeni ro offer him furrher employment did not violare hi,
terms of appointment and that, therefore. the question of a possible legal
impediment to such appointment did not arise.

(b) The Tribunal found lhal every reasonable considerarion was given the
Applicant for a career appoinlnienl

74. The plain terms of the Applicant's appointment were also affected by
naranranh 5 of section IV of General Assemblv resolution 37/126 (doc. No. 12)
;hich provides that "staff members on fixed-ierm appointments "pan compl~
tion of fiveyears of continuing good serviceshall be given every reasonable con-
sideration for a career annoin;ment". TheTribunal held that CheAoolicant was
entitled to the benefit k'that resolution and concluded that this consideration

had, rnfacl, been given(Judgement, pp. 53 to54, supra, paras. XIV to XVIII;
doc. No. 9).
75. The Tribunal then examined the manner in which the Respondent exer-
cised his discretion and found as a fact 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 and thus disr-earded his duties under Article 100.
paragraph 1, of the Charter. Indeed, he States al1 throughout that the
measures he took were in the interests of the United Nations taking into
account al1the facts, 'together with the representations to diverse effëct by
the permanent missions of Iwo rnember States'." (Judgement, p. 55,supra,
para. XIX; doc. No. 9.)

76. The Tribunal concluded by expressing 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
enioined bv the General Assemblv resolution. However. this omission on

thépart of: the Respondent has not caused any di~cernible~injur~10 the
Applicant and he is therefore not entitled to any monetary relief." (Judge-
ment, p. 55,supra, para. XX; doc. No. 9.)

77. Mr. Ustor implicitly agreed with the factual conclusion of the majority
that "every reasonable consideratioii" for a career appointment mandated by STATEMENT OF THE SECRETARY-GENERAI. 93

resolution 37/126 had been given to the Applicant. MI. Ustor was, how-
ever, of the opinion that such consideration was not required by resolution
37/126, which resolution he considered inapplicable to fixed-term appoint-
ments on secondment (Judgement, p. 56, supra, separate statement; doc.
No. 9).
78. Mr. Kean agreed that paragraph 5 of section IV of resolution 37/126
applied to the Applicant, who was thus entitled to "every reasonable con-

sideration" for a career appointment (Judgement, p. 56. supra, dissenting
opinion of Mr. Kean, paras. 2 and 3). Mr. Kean, however, differed from the
majority in that he interpretedthe letter of 21 December 1983from the Assistant
Secretary-General for Personnel Services to the Applicant (doc. No. 20,
Annex 40)as establishing that the Secretary-General was of the opinion that the
Applicant was not entitled to be considered for a career appointment because
he had been on secondment (Judgement, p. 57, sripra, paras. 4 to 7: doc.
No. 9).
79. Having found, as a fact, that the Applicant had been accorded "every
reasonable consideration" for a career appointment, albeit accompanied by an
exoression of dissatisfaction that ..~ro.riatewritten records of such considera-
tion were not kept, the Tribunal therefore was not obliged to go on to speculate

on whether the Resuondent had the legal power to appoint the Applicant, had
Respondent been so inclined to do so:

80. First, there wasno cal1for the Tribunal to respond in terms to the ques-
tion whether a legal impediment existed to the further employment of the Appli-
cant after 26 December 1983sincethis question was not at issuebetween the par-
ties (see para. 58 above).
81. Second, the question to which the Committee referred was an abstract
one, to which the Tribunal was not obliged to reply explicitly, as long as it
adjudicated upon Applicant's claim that the terms of his appointment or his

contract had been violated by the failure to re-appoint him (see paras. 59-60
above).
82. An answer to the question would have been required only if the Tribunal
held that there was a legal expectancy for further employment but that due
consideration had not been given thereto. As the Tribunal found as a matter
of fact that Applicant had no such expectancy it was not necessary, in order to
judge the claim submitted to it, to determine whether the Respondent could
have declined to appoint Applicant without violating his rights on the basis that
a legal impediment to any further employment existed (see paras. 61 to 73
above).
83. Furthermore, the Tribunal also found as a matter of fact that Applicant
had received "every reasonable consideration" for a career appointment pur-
suant to resolution 37/126. This finding too made irrelevant an enquiry into

whether a failure to give such consideration could have been justified on the
basis tbat a legal impediment to future employment existed (see paras. 74 to 79
shnvp)
84. Thus, in making those determinationsthe Tribunal exercisedthe jurisdic-
tion vested in it by Article 2of its Statute to adjudicate upon allegations of non-
observance of contracts or terms of employment. The question of whether that
determination might be contested is immaterial to the issue of exercise of94 APPLICATION FOR REYIEW

2. Question: 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?

85. The question presented Io the Court by the Committee does not specify

the provisions of the Charter upon which the Tribunal mav have erred. The
Application subrnitted by the APplicant to the Committee (doc. No. I), how-
ever, referred to five specific provisions in detail and mentioned a sixth provi-
sion. Therefore, this Written Statement willconsider the Tribunal's Judgement
in relation to each of those provisions, after first duly taking into account the
approach of this Court in relation to errors on questions of law relating to provi-
sions of the Charter and. secondly. after hriefly reviewing the Judgement in
relation to the Charter as a whole.

(i) The Court's Approach Io Questions concerning Error of Law relating to
Provisions of the Charter

86. In its Mortished Opinion the Court set forth a definition of its role in
examining this ground of objection by observing that it must determine

"the scope of the enquiry to be conducted by the Court in order that it mav
decide whether the Tribunal has erred on a-question of law relating to thé
provisions of the Charter of the United Nations" (I.C.J. Reports 1982,
p. 357, para. 62).

The Court then defined this task as follows:
"64. In any event, the Court clearly could not decide whether a iudee-

ment about the interprciaiion of staff-~egulaiions or Siaff Rules ha; erred
on a question of law relaiing IO ihe provision\ of the Charter. rithoui
looking ai that judgement IO see uhat the Tribunal did decide. While IO
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 examina-
tion, itself to get involved in the question of the proper interpretation of
the Staff Regulations and Staff Rules, as such, further than is strictiy
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.
65. This conclusion, dictated by the considerations of principle noted

above. is also in accord with the actual words of the eround of obiection
mentioned in Article Il of the Tribunal's Statute wiich speaks, not of
'error of law' but of error 'onn question of law relating to the provisions
of the Charter of the United Nations', and these latte; words Cannot be
other than words of qualification. It is true that the regulations and rules
applied by the Administrative Tribunal must derive their validity from the
provisions of the Charter. Indeed. al1valid regulations and rules adopted
by a United Nations organ cannot be other than based on the provisions
of the Charter. It does not follow. however, that every question of the
interpretation or application ofthose regulations and rules is a question of

iaw relating to the provisions of the Charter. Nor indeed would the words
of Article IO1 of the Charter ordinarily be of any assistance or pertinence
in the task of interpreting a rule or regulation. Accordingly, it would he STATEMENT OF THE SECRETARY-OENERAL 95

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 II now under
examination means that an objection to any interpretation by the Tribunal
of staff rules and regulations is a rnatter for an advisory opinion of the
Court." (1.C.J. Reports 1982, p. 358, paras. 64-65.)

(ii) Relalionship between the Judgement and the Charter

87. The Pleas submitted bv the Aonlicant to the Tribunal do not refer
explicitlyto provisions of theharter (sa. 30above). The only ones that could
conceivably involve any questions of law relating to ~rovisions of the Charter
are Pleas B, C and E,-which provide as follows:

"B. To order the rescission of the administrative decision. dated 23
November 1983. not to consider an extension to the Applicant's United
Nations service.
C. To adi,de- and declare that no lee-l imoediment existed to his fur-
ther United Nations employment after the expiry of his contract on
26 December 1983.
E. To adjudge and declare that he was illegally denied his right to
reasonable consideration for a career appointment." (Judgement, p. 43.
supra, doc. No. 9.)

88. TheTribunal, after determining the legal issues raised by the Pieas, con-
cluded that the non-renewal of the Applicant's appointment and the failure to
convert his appointment to some other type of appointment did not violate his
rights on the following grounds:
(a) the Applicant's fixed-term appointrnent on secondment, which the Tribunal
found expired on 26 December 1983, would have required, as a matter of
law, consent of al1 three parties to it for its renewal (Judgement, p. 53,

supra. para. XIII; doc. No. 9);
(b) the Applicant did not have an expectancy of renewal because it did no1
appear that the Applicant had produced evidence of circumstances suffi-
cient Io establish that he had such an expectancy following the end of his
fixed-term appointment (Judgement, p. 51, supra, para. VI; doc. No. 9);
(c) the Applicant received "every reasonable consideration" for a career
appointment to which he was entitled under paragraph 5 of section IV of
General Assembly resolution 37/126 during the process whereby the
Respondent decided not to grant him a career appointment (Judgement,
pp. 53 Io 55, supra, paras. XIV to XVIII; doc. No. 9).
89. It is submitted that these conclusions of the Tribunal, in support of ifs

decision, do not explicitly or even implicitly relate Io questions of law involving
provisions of the Charter.

(iii) The Application Io the Commitlee and Ils Oulcome

90. The Application tothe Committee alleged that the Tribunal's Judgement
confiicts with the following provisions of the United Nations Charter: Article
101, paragraph 1; Article 100, paragraph 1; Article 101, paragraph 3; Article
8; and Article 2, paragraph 1, together with Article 100, paragraph 2 (Applica-
tion to Committee, paras. 17to 33; doc. No. 1).
91. The Committee requested the Court to advise whether theTribunal erred96 APPLICATION FOR REVIEW

on questions of law relating to provisions of the Charter (doc. No. 6). Most
statements made at the public meeting of the Committee were against submis-
sion of the question Io the Court (doc. No. 8) and therefore are no1directly rele-

vant to interpretation of the question.

B. THE JUDGEMEN TN RELATION TO THE CHARTER PROVISIONC SITED IN THE
APPLICATIO NO THE COMMITTEE

(i) Article 101, Purugraph 1,of the United Nations Charter

92. Article LOI,paragraph 1, of the Charter provides as follows: "1. The
staffshall be appointed by the Secretary-General under regulations established
by the ~eneral~ssembly."
93. The Aoolication to the Committee areued that the Tribunal's Judeement
was "inconsi;ieni" wiih this provision of the Charter bccause the Tribunal did

not find ihat the Secreiary-General had disreaarded the General Assembly's
sovereign role because he had failed to providé administrative instructions-to
create machinery to implement paragraph 5of section IV of resolution 37/126.
The ~oolication also areued that the ~udeement erred hv concludine. without
suppoiting evidence, thaï the Respondent personally considered the &plicantvs
case (see doc. No. 1, paras. 17 Io 19).
94. This argument is misconceived because it suggests, incorrectly, that the
Respondent explicitly or implicitly asserted that he could disregard resolution
37/126 and also that the Tribunal's Judgement, in some way. upheld such a
position. In fact,the Respondent asserted that he had complied with theresolu-
lion and the Tribunal determined that he did so.

95. The Respondent does not dispute that he has a responsibility to imple-
ment General Assemhly resolutions (see Effect of Awurds of Compensation
Made by the United Notions Administrative Tribunal, I.C.J. Reports 1954, p.
60). However, as was pointed out hy this Court in the Mortished Opinion, the
mere fact that a resolution"decides" a particular point of personnel policy does
not give to any individual staff member the right to have the resolution applied
by way of any particular machinery or in any particular way (Mortished Opin-
ion. I.C.J. Reports 1982, pp. 359-360, paras. 66-68). The Respondent is, of
course, obliged toapply the resolution in substance but in implementing it, until
he provides otherwise, is entitled Io adopt informal procedures rather than use
the formal advisory machinery established by the Staff Rules such as the

Appointment and Promotion Board (see para. 28 above and see Staff Rule
104.14: doc. No. 18). In the oresent case. the Tribunal found. as a fact. that
the Respondeni hadconsidered ihe Applisani for a career appointment "rider
resoluiion 37/126 and consequently not onlg had ihe Applicant's righis hcen
respected but the Respondent had respected the sovereign rule-making power of
the General Assembly.
96. Indeed, resolution37/126 did not affect the Respondent's discretionary
oower of a..ointment but merelv obliee- him to ci-e "everv reasonable con-
sideration" for a career appointment to staff on fixed-term appointments with
more than five years of continuousgood service. In other words, the Respon-
dent must exercise his discretion as chief administrative officer of the Oreaniza-
tion and give "every reasonable consideration" Io such staff, having regard to

the interests of the Organization for which he plays that role (Art. 97 of the
Charter). to theaualities of the staff member (Art. 101. oara. 3. of the Charter
and staif ~e~ula;ion 4.2).10the need 10 recruil siaff on às wide a geographical
basis as possible (Art.1. para. 3. oithe Charier and Siaff Repulaiion4.2)and SWTEMENT OF THE SECRETARY-GENEML 97

to the qualiiies of exisiing staff and the need to securc fresh talcnt (Staff Kegula-
tion 4.4). Such decision had. of course. io be made witlioui distinction as io
race. ser or rçliaion (Art. 8.para. 2. of the Charter and Staff Kcnulation 4.3).
This ispreciselywhai oicurrcd in relîiion to the Applicani. The ~Gbunal round
that al1the circumstanies wereionsidercd and ihat the Rrspondcni had properly
concluded that any further appointment of the Applicant would not be in the
inte~e~~~-~ ~t~ ~ -~~nization.

97. The Applicant also argues with respect ta Article 101, paragraph 1,that
the Tribunal was inerror in finding, "without supporting evidence", that he had
been given everyreasonable consideration for a career appointment (Applica-
tion to the Committee, para. 18; doc. No. 1). This assertion, however, aside
from raising merely a procedural and not a Charter question, overlooks the
statement of the Respondent that the "decision nowcontested was taken by the
Sccrctary-General after consideration of al1 the circumstances in the case"
(Respondent's Answer to Tribunal, para. 24; doc. No. 21). The dissenting opin-
ion evaluated the facts differently but sucb finding, even if it had been a finding

of the Tribunal, also does not raise a question of law relating to Article 101,
paragraph 1, of the Charter.

(ii) Article 100, Pnrngraph 1, of the United Notions Charter

98. Article 100, paragraph 1, of the United Nations Charter provides as
follows:

"ln the performance of their duties the Secretary-General and the staff
shall not seek or receive instructions from anv eovernment or from anv
other authority external ta the Organization. They shall refrain from an;
action which might reflect on their position as international officiais

responsible only to the Organization."
99. The Application ta the Committee argued that this provision, although
permitting the Secretary-General ta consider the views of governments.

precludes him from being bound by them and alleged that the Respondent in
this case was merely carrying out the instructions of a government when he
refused to offer a new appointment to the Applicant and argued that the
Tribunal committed an error of law relating to the Charter by not so holding
(Application to Committee, paras. 20-22; doc. No. 1).
100. This argument is misconceived in fact and in law. If is misconceived in
fact because the Secretary-General did not take instructions from a member
State (see para. 75 above). It is misconceived in law because it suggests that the
Secretary-General is precluded from taking into consideration formal represen-

tations made to him in his official capacity by member States, and also because
it sueeests that if the ~ecretarv-General. in the interests of the United Nations.
tookadecision that was in acckrd with representations made by a member tat te
in connection with the secondment of a government official, this implies or con-
stitutes an improper taking of instructrons from that member state.
101. It has never been in dispute between the parties that the Respondent
cannot seek or receive instmctions from any government or from any other
authority external to the Organization. However, as the head of a principal

organ of the United Nations (see Art. 7, para. 1. and Art. 97 of the Charter)
the Respondent is entitled to receiveand consider representations from member
States on matters of concern to the United Nations. Just as official representa-
tions by member States cannot be considered to constitute violations of Article
100, paragraph 2, of the Charter, their receipt and the conclusions drawn from98 APPL~CATION FOR REVIEW

them by the Secretary-General do no1violate paragraph I of that Article. which
is designed to preclude ad personam pressures on members of the Secre-
tariat.

102. Even inthe case of appointments on secondment, the Respondent is free
to decide whether such particular appointment is in the interests of the
Ore-nization. If he considers it to be so. the Res~ondent needs to obtain the
consent of the government (or other permanent employer) becausc secondment
1s.of necessity. a tripartite affdir (\ee the Appendix. sec. III) The obtaining d
such consent or thefailure to implement a secondment in the absence of such

consentis, of course, not receipt of or compliance with an instruction (as Appli-
cant asserts: doc. No. 1, Dara. 20)
103. It is submitted thai the law on this point was succinctly described by the
Administrative Tribunal of the International Labour Organisation in the case
of In re Rosesa as follows :

"The executivehead of an organisation is bound at al1limes Io safeguard
its interests and. where necessarv. aive them nrioritv over others. One area
in which the ruie applies is stafE;ecruitment: If a director-generai intends
to amoint to the staff someone who is a government official in a member
~ta&'h~ ~ ~~ ~~~ ~llv consult the member State. which mav wish to keeo
the official in itsservice. Similarly, if such a gove;nment official's appoini-

ment is robe extended. it is reasonable that the organisation should again
consult ~ ~ ~ ~ ~ ~~ta~e. which mav have eood reason to re-emolov him.
This does not mean that 'a director-keneraïmust bow un~uestionirigly to
the wishes of the aovernment he consults. He will be right to accede where
sound reasons foi opposition are expressed or impliéd. But hc may no1
forgo taking a decision in the organisation's interest\ for the sole purpose

of iatisfying a member State. The organisation has an interest in being on
good terms with al1 member States. but that is no valid ground for a
director-general to fall in with the wishes of everyone of them." (Judgment
No. 431, para. 6; doc. No. 34.)

This point of view is shared by the Respondent and was submitted to the
Administrative Tribunal in this case (Respondent's Answer to the Tribunal,
oaras. 21 to 26: doc. No. 21).
104. The plica catio no the Committee sought specifically Io dispute the
Tribunal's conclusion of fact that the Applicant did receive appropriate con-

sideration for further emolovment bv referrinn to the letter dated 21 December
1983scnt to the hpplicani bJ the sust ta ~net etar~-~ieneralfor Personnel Ser-
vices (doc. No 20, Annex 40) and to press reports and press statements submit-
ted to the Tribunal concerning the motivation of the Respondent's decision not
to re-appoint him (Application to Committee, para. 21; doc. No. 1, and doc.
No. 22, Annexes 43 to 45, for the press statements).
105. However. the Tribunal's Judaement (doc. No. 9. DD. 54 to 55, paras.

XVlll to XX) accepted the ~es~ondënt's submission to the Tribunal that the
"decision now contested was taken hy the Secretary-General after consideration
of al1the circumstances in the case" (Re. .ndent's Answer to Tribunal. para.
24; doc. No. 21). Such a finding of fact does not involve a question of law, let
alone a auestion of law relating to provisions of the Charter. The only issue for
adjudication between the parties was whether the Applicant actually received

every reasonable consideration for a career appointment.
106. The dissenting opinion found that the writer of the 21 December letter
assumed that there was a legal impediment to any consideration of the Appli-
cant for a career appointment and found, as a result, that such an assumption100 APPLlCATION FOR REVlEW

poried by ii, texi and i\ inconsistcni uiih Ariizle97 of the Charter. which makcr
the Sccrctar)-General the chier admini~irative ofticcr 01'thc Organiration who
is obviously required to take decisions in the overall interests of the Organiza-
tion, as recognized by the Administrative Tribunal of the International Labour
Organisation in Rosescu (Judgment No. 431, para. 6; doc. No. 34; quoted at
para. 103above).
112. Furthermore, Article 100, paragraph 1, gives-as recognized by this '
Court in 1954(see para. 95 above)-the General Assembly power to direct and

guide the Secretary-Ceneral in questions relating to staff appointments. Accord-
ing to the Assembly's directives-which do not seek to detract from Article 101,
paragraph 3-other factors (for exainple, age, nationality, prior inconsistent
employment') ma~ leg~timately lead to a decision not to avvoint a verson in
spite of his or her ouïstanding efficiency, competence and integrity.'
113. The Applicant also contends that the Tribunal's Judgement errs because

"clearly implicit in the Tribunal's decision is the notion that the Appli-
cant's resignation from his Government's service is a disabling and pre-
judicial factor which must be given primacy over the qualities enumerated
in Article 101.3" (Application to the Committee, para. 24; doc. No. 1).

This argument appears to refer to paragraph XII of the Tribunal's Judgement
wherein Judgement No. 326 (Fischmon) is referred to, which cited a 1953Fifth
Committee report to the General Assembly that:

"International officials should be true representatives of the culture 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."
(Report of Fifth Committee, para. 70; doc. No. 14.)
114. This Report was concerned with the many difficulties that arise for the
United Nations if a staff member on a G-IV visa in the United States (as was
. ~~-
the case of the Applicant) takes steps to change his nationality by becoming a
permanent resident in the United States, for example, waiver of the Organiza-
lion's orivilenes and immunities and liabilitv to United States taxes with conse~ ~~..
quent claims-to reimbursement (doc. No. i4, paras. 61 to 72). Such a change
with its inherent problems for the United Nations, as was stated in the 1954 Cir-
cular issued to staff by the Respondent "in no way represents an interest of the
United Nations" (doc. No. 15, para. 12)and thus is obviously a matter that may

be taken into account in connection with aooointment decisions. In anv event.
the Tribunal, immediately alter referring io~ihcsemaiiers niade ii clear that thci
uere not in i~ue sincc privaie legislaiion wa\ 10 bc iniroduccd inIo the United
States Congress io a\,oid ihere ~roblems (Judgemeni. .. 52.~.sur>ro..ara. XII:
doc. No. 9) and the esp ponden dtoes no1 dispute this.
115. Consequently, the Judgement of theTribunal does not involve an error
on a question of law relating to Article 101, paragraph 3, of the Charter.

116. It may, however, be useful to refer briefly to the dissenting opinion,
which cited Article 101, par'agraph 3, and took the view that the Respondent
could not. in the light of that provision, have become party to an arrangement

' For example,Article 6 (2)of the Statuteof the InternationalCivil ServiceCommis-
sion providesthat a memberof theCommissionshallnotserveas an officiaor consuliant
of a memberorganirationduringhis or heriermofofficc orwithinthree yearsof cearing
Iobea memberof the Commission.(Thereir a rimilarprovisionintheStaiuteof theJoint
InspectionUnit.) STATEMENT OF THE SECRETARY-GENERAL 101

(i.e., the secondment agreement) with a member State that would preclude al1
future employment of an official who changed his nationality (Judgement,
p. 57, supra, dissenting opinion, para. 8; doc. No. 9). The dissenting opinion,

however, differs from the Tribunal's Judgement on a simple question of fact.
The Respondent, in his own view, gave "every reasonable consideration" to
offeringthe Applicant a career appointment. The Tribunal found that this had
been done even though it criticized Respondent for failing to adequately record
this in writing (Judgement, p. 55, supra, para. XX; doc. No. 9). The dissenting
opinion found that such consideration had not been given (Judgement, p. 57,
supra, dissenting opinion, paras. 7 and 8; doc. No. 9). Whether the Tribunal's
Judgement or the dissenting opinion is correct is not a question of law relating
to Article 101. paragraph 3, of the Charter.

(iv)Arlicle 8 of the United Nations Chorfer

117. Article 8 of the Charter provides as follows:
-"The United Nations shall place no restriction on the eligibility of men

and women to participate in any capacity and under conditions of equality
in ils principal and subsidiary organs."
118. ~he'~pplication to the Committee argued that the Judgement violates
Article 8 of the Charter because il placed a number of restrictions on appoint-

ment to the United Nations Secretariat (Application Io Comrnittee, paras. 26 to
28; doc. No. 1).
119. This argument appears to rest on a misconception as to the scope and
meaning of Article 8 of the Charter, as well as on the mistaken assumption that
the Tribunal had determined that there were any restrictions on the eligibility
of the Applicant to he considered for a career appointment.
120. Actually the scope of Article 8 is entirely different from that suggested
by the Applicant : it is solely concerned with discrimination on the basis of sex
and directs that men and women shall be eligihle to participate under conditions

of equality in the principal and subsidiary organs of the United Nations
(including the Secretariat). No issue in this case and no part of the Judgement
in any way, explicitly or implicitly, refers to the capacity of men and women to
serve in the United Nations Secretariat under conditions of equality.
121. The prohibition of "restrictions" in Article 8 of the Charter is plainly
intended solely to preclude any form of gender-related discrimination, and not
Io prevent restrictions that may apply equitably 10men and women'. Any other
interpretation would drastically curtail the powers of the General Assembly 10
regulate recruitment pursuant 10 Article 101. paragraph 1, of the Charter.
122. In any event, the Tribunal did not find that there were restrictions on

the eligibility of the Applicant to be considered for a career appointment. On
the contrary. the Tribunal found that paragraph 5 of section IV of resolution
37/126 applied to the Applicant but that the Secretary-General, in the light of
al1the circumstances, had properly decided not to grant him a career appoint-
ment (Tribunal's Judgement, paras. XIV-XVlll ;doc. No. 9). Furthermore. the
Tribunal's Judgement did not hold that the Applicant was ineligible to serve in
the Secretariat, the decision simply upheld a discretionary decision by the
Secretary-General not to offer him a career appointment al a particular time.

a Sec I.clandU. Cioodriih.Edvardllarnhro and Anne PairiciaSimon<.ChurreroJrhz
UnoedNarion.~(3rd cd..1969).pp IIU-105;Han< Kelrcn. The Lono/rhe Untred.Vurionr
11950). pp.152.153.102 APPLICATION FOR REVIEW

(v) Arlicle2, Poragroph 1, and Article 100, Porograph 2, of the UniredNotions
Charter

123. Article 2, paragraph 1, of the Charter provides as follows: "1. The
Organization is based on the principle of the sovereign equality of al1 its
Members." Article 100, paragraph 2, provides as follows:

"2. Each Memher of the United Nations undertakes to respect the
exclusively international character of the resvonsibilities of the Secretary-
General and the staffand not to seek to influence them in the discharge
of their responsibilities."

124. The Application to the Conimittee argues that the fact that some
Governments expect to be consulted prior to the apvointment of their nationals
to the Secretariat and require those nationals to accept only fixed-term appoint-
ments violates Article 2. paragraph 1, and Article 100, paragraph 2, of the

Charter (Application to Committee, paras. 30-33: doc. No. 1).
125. ~hisargument mistakenly assumes that the ~ribuna1's'~udgement had
condoned the granting of such special rights to particular member States to be
consulted on the employment of their nationals.
126. It is difficult to see how the Tribunal's Judgement could have done this

and how it could be viewed as involving a question of law in respect of either
Article 2. paragraph 1. or Article 100, paragraph 2, of the Charter. The Judge-
ment has nothing to do with these provisions but concerns the application of
paragraph 5of section IV of resolutiori 37/126, in particular, whether the Appli-
cant received "every reasonableconsideration" for a career appointment, which
consideration the Tribunal found as a fact had been given to him.
127. The Application also alleges that the requirement of the Soviet Govern-

ment that its nationals accevt only fixed-term anoointments violates Article 2.
paragraph 1, of the charte;. ~owever, the pol~~iesof any individual govern:
ment in respect of the employment of its own nationals by the United Nations
can hardly violate the vrincinle of sovereian eaualitv of al1 member States
128 ~he ~pplicatio" alsoimplies ihat Ïhe fiit thai a member State niakes
ith vicw on appointmenrs known to the Sccrctary-General ifiolatcs Ariiclc 100,

oarae-.oh 2. .f the Charter. This areument is without f~ ~ ~tion sin~e m~mber ~ ~ ~
States are entitled to make their views known to the Respondent who, as the
head of a principal organ of the United Nations and without being hound bv
them, mayconsider those views when reaching his own independentdecision in
the interests of the Organization (see also paras. 99 to 107 above).

III. CONCLUSION

129. This Written Statement has submitted that the Tribunal exercised the
jurisdiction.vested in it hy Article 2 of its Statute "to hear and pass judaement
uvon aovlications alleaine. non-observance of contracts of emolovment of staff
memberi of the ~ecreÏariit of the United Nations or of the ier&s of appoint-
ment of such staff members". The finding in the Tribunal's Judgement that the
Respondent observed the Applicant's contract and terms of appointment was a

full and proper exercise of the Tribunal's jurisdiction and did not require an
explicit answer to abstract questions posed by the Applicant.
130. This Written Statement also submitted that. in holdine that the Resnon-
dent complied with General Assembly resolution 37/126, the-~ribunal did not
deal with questions of law relating to provisions of the Charterand that, in fact, STATEMENT OF THE SECRETARY-GENERAL 103

the Tribunal's Judgement was in accord with al1provisions of the Charter cited
in the Application to the Committee.
131. It is submitted that the Secretary-General properly discharged his
responsibilities as chief administrativeficer of the Organization by deciding
no1to offer the Applicant another appointment upon the expiration of his last
fixed-term contract on secondment, after considering al1 the relevant cir-
cumstances including representations made by the Applicant, his counsel, his
supervisor and member States.
132. This Court is, rherefore. respectfully requested to respond negatively to

both of the questions submitted to it by the Committee.

(Signed)Carl-August FLEISCHHAUER,
The Legal Counsel
of the United Nations.

26 February 1985. Appendix

1. Career Appointment

1. A career appointment-which is the most prevalent appointment in the
United Nations-is a permanent appointment which has no specific expiration
date but is subject to review al the end of the first five years of service (Staff
Rule 104.13 /ai (ii): doc. No. 18). At the vresent lime. arant of a vermanent
appoiniment'i; l;iniied to staff holding pro'bationary appointmenis (staff Rule
104.13 la, (ii): doc. No. 18). However. paragraph 5 of section VI of General
Assenibly resolution 38/232 recommcndcd 10 the Secretary-General

"that the organizations normally dispensewith the requirement for a pro-
bationary appointment as a prerequisite for a career appointment follow-
ing a period of five years' satisfaclory service on fixed-term contracts"
(doc. No. 13).

II. Fixed-Term Appoinrment

2. A fixed-term appointment is defined by Staff Rule 104.12(b) as being an
appointment "having an expiration date specified in the letter of appointment"
which appointment "does no1carry any expectancy of renewal or of conversion
to any other type of appointment" (doc. No. 18). This means that the Staff
Rules do not eive the holder of a fixed-term avoointment anv rirht to further
employment. kowever, the Tribunal has held tiiat the circumstances surround-
ing such an appointment may create an expectancy for further appointment

(Tribunal Judgements Nos. 142 (Bhultocharrya) and 205 (El-Naggar) (docs.
Nos. 23 and 24)).
3. Section IV of General Assembly resolution 37/126 of 17 December 1982
modifies these orincioles b. .rovidin-. in ils.oar-.raoh 5.that "staff members
on fixed-term appointments upon completion of five years of continuing good
service shall be aiven every reasonable consideration for a career appointment"
(doc. No. 12).

4. The Secretary-General is bound hy and has complied with this resolution.
However, this resolution does no1entitle the staff to which it refers to a career
appointment. The decision 10 grant a career appointment is solely within the
discretion of the Secretary-General. which decision is to be made alter having
given "every reasonable consideration" to staff concerned

III.Fixed-Term Appointment on Secondment

5. Staff Rule 104.12 (b) (doc. No. 18) provides as follows:
"The fixcd-irrm appoininient. hliiing an expiration date speciiied in the
Iciter ofappoininient, mîy begr;inted for a period noi cxceeding iive ycar\

See alsodoc. No. 36, Annex Vll STATEMENT OF THE SECRETARY-CENERAI 105

to persons recruited for service of prescrihed duration, induding persons
lemporarily sec0nded.b~ nalional governments or institulions for service
wilh the Uniled Nations. The fixed-term appointment does not carry any
expectancy of renewal or of conversion to any other type of appointment."
(Emphasis added.)
6. The term secondment is not defined in the Staff Rules but, in practice,

means that a staff memher has heen given a fixed-term appointment with the
consent of his permanent employer and on the understandina of al1three parties
to rhc arrange"icnr that the rerr'iceai the United Nationç uilÏ he liniiierl in dura.
lion and thar the staff membcr has a right io rciurn IO hi\ former employmçnt
at the end of his fixed-term appointment.
7. The duties of each of the three parties to the secondment arrangement are
well estahlished and have heen conveniently summarized as follows hy Trihunal
Judgement No. 192, Levcik (doc. No. 28, paras. IV and V):
"IV. The substantive law governing the secondment of a staff mem-

ber of the United Nations to the Secretariat of the Inter-Governmental
Maritime Consultative Oreanization has heen ao..ied hv,the ~~~-unal in
the Ilr~gins case (~udgcmeit No. 92). In thai case. after taking rogiiizance
of the rules coniained in various dorumenis from the Consultaiive Com-
mittee on Administrative Ouestions concernine the transfer. secondment
or loan of officials between.organizations appl;ing rhc common system of
conditions of employmcni in the United Nations, the 'Trihunal. having held
that those rules were not bindine on the parties. had to seek someother
legal bask for its decirion. The bariL.priniiplm ici out by ihc Tribunal iii
Judgemeni No. Y2 arc generall) iippli~ableio seconrlmeni, and piirtisularly
to cases envisaged in Staff Rules 104.12 (b).

According to that judgement.
'IV. There is no legal definition of the term "secondment" in the Staff
Regulations and Rules of either IMCO or the United Nations. Never-
theless, the term "secondment" is well known in administrative law. It

imolies that the staff memher is oosted awav from his establishment of
origin but ha<the righi to reverr io cinplo)ment in that establishment at
the end of the period of secondmeni and rcialns hi\ righi IO promotion
and to retirement henefits
VI. . ..there are really three parties to the arrangement, namely, the
releasing organization, the receivin- or-anization and the staff memher
concerned .~..'
V. The principles stated in Judgement No. 92 imply that in a case of
secondment the situation of the official in auestion must he defined in

writing hy the competent authorities in dociments specifying the condi-
tions and particularly the duration of the secondment. These documents
must he brou~-t to the knowledee-of the official concerned and his consent
mu\t be obiained Any suhsequçni change in the ierm\ ot ilie secondment
initially aprççd on, tor examplc tts exlenoon. ob\iou.ly rcquires the agree-
ment of the three parties involved. When a government which has seconded
an official to the Secretariat of the United Nations refuses to extend the
secondment, the Secretary-General of the United Nations, as the admin-
istrative head of the O-nanization. isobliged to take into account the deci-
sion of the government.

Bearing in mind the provision in Article 100of the Charter that 'in the
performance of their duties the Secretary-General and the staff shall not106 APPLICATION FOR REVIEW

seek or receive instructions from any government or from any other
authority external to the Organization', the Tribunal considers that in the
absence of a secondment agreed to by al1parties concerned in conformity
with theabove-mentioned principles. the Respondent cannot legallyinvoke
a decision of a Government to justify his own action with regard to the
employment of a staff member." STATEMENTON BEHALF OF THE APPLICANT
MR. VLADIMIRYAKIMETZWITH RESPECTTO JUDGE-

MENT No. 333 OF THE UNITED NATIONS
ADMINISTRATIVETRIBUNAL

May it please the Court:
1. to accept jurisdiction in this case under Article 65.1 of ifs Statute; and
2. to find and declare, based on the statement of facts and arguments set out
hereunder and otherwise before the Court, that Tribunal Judgement No.
333was flawed by fundamental errors of law and should be reversed; and
3. to render an advisory opinion for the guidance of the Secretary-General
regarding the issues raised by the Applicant in the case.

The views of Mr. Vladimir Victorovitch Yakimetz, hereinafter referredIo as
the Applicant. are setorth in accordance with Article II, paragraphs 1 and 2,
of theStatute of the Tribunal. for transmission to the Court by the Secretary-
General. This statement contains the following headings:
A. Request to the Court to accept jurisdiction Paragraphs 1-5
B. Explanatory statement Paragraphs 6-49
C. Legal arguments
Preliminary observations on the scope of review Paragraphs 50.51

1. Did the United Nations Administrative
Tribunal fail to exercise the jurisdiction
vested in it by not responding the question
whether a legal impediment existed to the
further employment in the United Nations of
the Applicant after the expiry of hisntract
on 26 December l983?
(i) The standard to be applied Paragraphs 53-57
Paragraphs 58-62
(ii) The issues hefore the Tribunal
(iii) Did the Tribunal "apply ils mind" Io
the questions by the Applicant, and
exercise its jurisdictional powers in
resolution? Paragraphs 63-75
(iv) Conclusion Paragraphs 76-78
II. Did the United Nations Administrative
Tribunal, in the same Judgement No. 333,
err on questions ofaw relating to provisions
of the Charter of the United Nations?

(i) The scope of review t'aragraphs 79-82
(ii) The Charter provisions at issue Paragraphs 83-85
(iii) In regar[O~heprinciple of mcrit Paraernnhs 86-99
(ir) In regard io the prinsiplc of neutralityagraphs 100-109
(v) Lnrenard to the principle of equality Paragraphs 110-120
("i) In regard to the administrative prin-
ciples of the Charter Paragraphs 121-131
(vii) In regard to Chapter XV Paragraphs 132-149
(viii) Conclusion Paragraph 150108 APPL~CAT~ON FOR REV~EW

A. Request 10 the Court Io Accepl Jurisdiction

1. In the two prcvious cases in which the Court has bcen called upon to con-
sider a request for an advisory opinion under the proccdure laid dnwn in Article
II of the Statute of the Administrative Tribunal (Judgements No. 158. Fasla
and 273. Murrished) the Court has expressed misgivings about certain features

of the review procedurc. The Applicant shares thosc misnivinas. partisularly as
to the inequafity of parties, theabsence of a record of the proceedings, and the
denial to his counsel of the right to be present, even as an observer. The sole
choice, however, lies between "judicial control of the kind exemplified by the
present proceedings, and no judicial control at all" (President Lachs, I.C.J.
Reports 1973, at p. 214). The Court concluded, in Fasla', that the Committee
on Applications for Review of Administrative Tribunal Judgements was an
"organ of the United Nations", duly constituted under Articles 7 and 22 of the
Charter, and duly authorized under Article 96.2 of the Charter 10 request

advisory opinions of the Court. The Court is therefore competent under Article
65 of itsStatute to entertain a request foran advisory opinion from the Commit-
tee made within the scope of Article 1I of the Tribunal's Statute.
2. Despite the permissive character of Article 65, the Court has consistently
held that "a reply to a request for an opinion should not, in principle, be
refused" (I.C.J. Reports 1951, at p. 19, I.C.J. Reports 1973, at p. 183).

"ln the matter of advisory opinions, only compelling reasons could
cause the Court to adopt in this matter a negative attitude which would
imperil the working of the regime established by the Statute of the
Administrative Tribunal for the judicial protection of officials." (Advisory
Opinion, I.C.J. Reports 1956' at p. 86; also Advisory Opinion, I.C.J.
Reports 19713, a1 p. 27; and Advisory Opinion, I.C.J. Reports 1962', at

p. 155.)
"The stability and efficiencyof the international organizations, of which
the United Nations is the sumeme examole. are however of such oara-
mount importance to world order, that thécourt should no1 fail to assist

a subsidiary body of the United Nations General Assembly in putting its
operation upon a firm and secure foundation." (Advisory Opinion, I.C.J.
Reports 1982'. at p. 26.)

3. Recourse to the International Court of Justice was intended only for
"exceptional cases". The case at bar is, by any reasonable definition, an "excep-
tional case". It is, moreover, singularl; appropriate for examination by the
highest judicial body of the United Nations. It presents, in the form of a con-
crete case or controversy, many issues that have long plagued the Organization.
No other orean of the United Nations has the authoritv. the freedom or the will
io providc cïear lcgal guidance on ihese problems. although their efkcis on the
functioning of the Secretariat have been the sub~ectof ~on\iderable comment.
both scho6rlv and oooular. From time to time in the historv of anv oraaniza-
. . . -
'Applicorionfor Reviewof JudgemenrNo. 158oflhe UniledNotionsAdminisrroiive
Tribunol,AdvisoryOpinion, I.C.J. Reports 1973.
*Judgrnenrs of lheAdminirrrariveTribunalofrhe IL0 uponComploinlsModeagainsr
Unesco.
' LegolConrequencerJorSlaterofrhe Conrinued Prerenceof SourhAfrica inNomibio
(South WestAfrica) noiwilhslandingSenirily CouncilRerolurion276 (1970).
Cerlain Expenrpr oj the UniredNaliom (Article 17.pom~mph 2, of rhe Charter).
'Applicorionfor ReviewOfJudgemenrNo. 273 ofrhe UnitedNorionsAdminisrrotive
Tribun~l. STATEMENT OF THE SECRETARY-GENERAL 109

[ion itis nece\sary for appropr,aie authority to \land abovc politics and io reat-
iirm principlcq. The Administraiise Tribunal, of hoth the L'nited Nations and
International Labour Organisation siood alinoit alimc in deiense of basic lcgal
principles in the 1950s. Thcir compriense and decisions uere uphcld h) thc
Court IEffecr of A wurds~JCorfrpensorrori Mode hy ihe UnrredNurions Adtriin-
rsrrarive Tribiinol. I.C.J. Kelrorr~ 1954. J~<dgmenrs O/ rhe Admrntsrrorn.r*
Tribun01 O/ rht.IL0 upon Comploinls Mode ogornArUnesco. I.C.J. Reports
1956.1This case presents issues of principlc no le55fundamenial. and uhich lie
ai ihc heart of the malaise affeciing the United Nations ioda)..

4. If alloued in qtand. the Judgçmeni of the Adminisiraiive Tribunal in ihis
case effectivelv rewrites the Charter. It reolaces the orinciole of merit with
political influence as theparamount consideration for appointment and promo-
tion of staff.It sanctions ~ractices that are opposed to the values and the pur-
Dosesarticulated bv the ~ieoaratorv ~ommission and the United Nations con-
ference on internation ailanizaiion. It fails to uphold the concept of an
independent career service as the "core" and backbone of the Secretariat. It
widens the discretionary powers of the Secretary-General at the expense of both
the staffand the General Assembly. It interjects considerations of nationality
and loyalty that have no place in an organization devoted to internationalism.
It glosses over the gap that exists between the legal code of conduct and the
operational code, permits a double standard and ignores the obligations
imposed by the oath of office and the Staff Regulations.
5. Therefore. since the Court has comoetence. since the reauest was orooerlv
framed in accokance with established prkedurei by the duly;uthorizid organ,r .
since the case is an "exce~tional" one and the issues of utmost imoortance. the

Applicant respectfully requests the Courtto render an Advisory opinion hekein.

B. Explanatory Staternent

6. The Applicant's early career in the USSR was in Physics. Between 1956
and 1966he took an undergraduate degree and a Ph.D. at the Moscow lnstifute
of Physics and Engineering, and did research and postgraduate work at the
lnstitute of Nuclear Physics, Novosibirsk. From 1966 to 1969 he taught
theoretical physics at the Moscow lnstitute of Physics and Engineering, and
published a number of studies based on his research, some in international jour-
nals. Although employed by the Ministry of Education, his post, as senior
teacher, was not a permanent or "tenured" one, but rather subject to election
every two years. A teacher who fails to gain re-election has to look for another
position.
7. In 1969 he aoolied. as an indeoendent candidate. to the United Nations
language recruitment service in Moscow. He passed the competitive examina-

tion. qualifying for a post in translation. He was cleared by his Government for
foreign service, and proposed for a post as Translator Trainee at the Associate
Officer (P-2) level. He signed a two-year release from the Ministry of Educa-
tion. He was not asked to sign another and had no further dealings with the
Ministry.
8. The Applicant's first United Nations P-I I (Personal History) form, dated
5 June 1969, was completed in Moscow and delivered, no1 to the United
Nations, but to the USSR Ministry of Foreign Affairs who proposed his can-
didacy. Under ltem 29, which asks "Are you now, or have you ever heen, a per-
manent civil servant in your Government?" he answered "No". Under ltem 28,
: which asks "Have you any objections to Our making inquiries of your present
employer?" he again answered "No" (doc. 20, Annex 1).110 APPLICATION FOR REVIEW

Neither the offer from the United Nations, nor his acceptance, mentioned the
term secondment. His Letter of Appointment, for a hve-year fixed-term con-
tract, was signed in Novemher 1969. Under Item 5, Special Conditions, it
specified"None" (Annex 3).
9. On 10 December 1969,the Applicant took the oath to perform his duties
and regulate his conduct exclusively inthe interests of the Organization. and to
neither solicit nor accept instructions from any government or any other
authority external to the Organization.
10. In 1970his entry-level was corrected 10.P-3. In 1972he was promoted to
P-4. In 1974, five weeks befnre the end of his five-year contract ended. he

resigned from the United Nations in order to pursue further studies, in
economics and international relations at the State Academy for Foreign Trade,
Moscow. He graduated in June 1977. At the same time, as part of his studies,
he underwent training-frorn November 1974 to June 1976-ai the Moscow
Institute of Mathematical Economics, and from September 1976to June 1977
at the lnstirute of Syslems Analysis.
II. On 19 June 1977 he submitted another P-I l form to the Ministry of
Foreign Affairs, which transmitted it to the United Nations with a covering let-
ter recommending his candidacy. Once again, in answer to the question "Are
you now, or have you ever been, a permanent civil servant in your Govern-
ment?" (Item 29) he answered "No" (Annex 6).
12. On II November 1977the Appointment and Promotion Board approved
his appointment as Russian Reviser at P-4 "on a fixed-term secondment basis
for a period of five years". On 23 November 1977the United Nations offered
him a "five-year fixed-term appointment, on secondment from the USSR
Covernment". On the same date the USSR Mission wasinformed that this offer
had heen made. The Applicant's Letter of Appointment, however, signed on 24

January 1978, did no1 mention secondrnent and once again, under Item 5,
S~ecial Conditions. soecified "None" (Annex 10).
' 13. The ~~~licant's performance in the ~anguage Ser\,ice w.15 very highly
rated-iwo Performance Evaluation Reports described him as "one ol the bçst
translators and revisers in the ~ervice".In 1980his name was out forward bv
the USSR auihoriiies for the Appoinimeni and Promotion ~otimitiee and he
sîrvcd as Administration Candidate during 1981. 1982.and ltgain in 1983.uhen
he was elected Vice-Chairman.
14. During 1980 the USSR authorities recommended him for substantive
posts outside the Language Serviceenclave. He was put forward unsuccessfully.
for a post in Ceneva. He was also 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.
15. The Office plays a central role in the preparation of the medium-term
plan, according to regulations mandated in General Assembly resolution

37/234. This plan isthe principal policydirective of the United Nations, and sets
out the objectives and strategies to be followed by the United Nations in the six-
vear veriod it covers. The Dropramme budgets of the Oraanization musi be for-
kulaied u,ithin the frameuork of the pl& The program narreiltes in ihe
budget <etout the conimilmenis ihe Organiraiion undertakm in nchange for
the resources appropriated by the General Assembly. Programme performance
reports set out the actual performance of the Organization in relation to the
commitments made in the budget.
The Office, therefore, requires not only special skills but also a high degree
of continuity of service from its staff. Programme Officers must he familiar STATEMENT OF THE SECRETARY-GENERAL 111

with the economic, social and technological issues of development in which the
organization isinvolved through its many organs (special centres, regional com-
missions, UNEP, UNCTAD, UNIDO, etc.). They mus1monitor and interpret
the intergovernmental debate durina the review process. The medium-term plan
covers six vears. The oroeramme budaet-.vcle (includina the formulation~and
the rcview heriods) isciosero four years. No marier how icademically qualified,
itiakes ai leasi tuo years for an officeIO learn al1phases of the relevant special
nrocedures
The Office muçt inve\t ons si der ablleime in training and iherefore prefer\

candidates who uould be available long enouch IO be userul Neverthelesr. rhr
Assistani Secretary-General for ~ro~r~mme Planning and Co-ordination, Mr.
Peter Hansen, agreed to try out the Applicant.
16. The trialoeriod convinced the Office of the Aoo..cant's ca~.citv.Io meet
their requirements. When a post became available in Septernber 1981, the
Department formally requested his transfer, even though he had, al the time,
onlv a little more than one vear Io ao on his contract. Mr. Hansen. who wished
to increase the number of iconomkts from Socialist countries on his staff, dis-
cussed his intentions with the Soviet Mission, to whom he expressed the hope
and expectation that it would be possible to retain the Applicant for a long
enough period to make effective use of his newly acquired training and
experience. He received the impression that it could be worked out.
17. The Aoolicant's Performance Evaluation Report for the neriod remain-
ing on hir fixéd-icrmcontract was excelleni. In ~ept;iiibcr/~ctober .%IrH. ansen
discussed a itvo-year contraci extension wiih the Chief of Personnel Services in
the USSR ~ission and was told that for technical reasons if was easier to pro-
pose extensions for one year at a time. The Department therefore requested a

year's exfension-Io 26 December 1983-on the understanding that further
chiensions uould be granied.
On 22 Ociober 1982ihc United Nations requested the Permanent >lission uf
the USSK IO help "in hecurinn the conseni of its Govcrnmeni in ihe cxien~ion
of Mr. ~akimeG's secondmënt to the United Nations through 26 December
1983". The Permanent Mission responded on 15 November 1982. The letter
communicates the Permanent Mission's "agreement to the extension of the con-
tract of Mr. Vladimir Yakimetz . . ."with no reference Io secondment (Annex
..),.
In December 1982 he was recommended for promotion to P-5.
18. The Letter of Appointment as P-4 Programme Officer, DIESA, signed
by the Applicant on 9 December 1982 says under 5, Special Conditions, "On
secondment from the Government of the Union of Soviet Socialist Republics"
(Annex 19).
19. 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 that 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.
He was told that he must secure Mr. Hansen's acceptance for a substitute they
would propose.
In January 1983 he was told to take leave in Moscow in February to help
prepare a substitute candidate-who had already been selected-for his post.
The Applicant requested leave. Mr. Hansen refused, hecause of pressure of
work.
20. In late January 1983the Applicant learned from a Russian colleague that
the USSR authorities had selected and were going to propose a replacement
for him on the Appointment and Promotion Committee (a purely interna1112 APPLICATION FOR REVIEW

Secretariat body). This increased his apprehension that he would not be permit-
ted to return to his United Nations post if he were to obey his Government's
order to go to Moscow.
21. Mr. Hansen, who at the time knew nothing of the dilemma in which the
Applicant had been placed, wrotr him a memorandum on 8 February 1983,as
follows:

"Our discussions on your leave schedule for the next few months have
prompted me to inform you of my intention to request an extension of
your contract after your current contract expires on 26 December 1983.As

vou know it would be onlv at the end of 1983that vou would have received
full training in al1 aspecis of the biennial programnie planning cycle so
ihiii. as I h3d indicared to you last )car. I belie\,e thaituould bc in the
interests of the Office to have your services continued.
1would appreciate it if you could let me know at your earliest conve-
nience whether you would be in a position to accept such an extension."
(Annex 21 .)

22. On 9 February the Applicdnt applied for asylum in the United States. On
10 rebruary he submitied io the Ambasador and Permanent Representaiive of
the USSK IO ihe United Nation, his resiriiaiion from the )rlinistrv of Foreign
, - u
Affairs and from al1other official positions in the Soviet Government (Annex
22). He also wrote ta the Secretary-General of the United Nations informing
him, pursuant to Staff Rule 104.4 (c) of his intention ta acquire permanent
residence status in the United States of America. He added:

"For personal reasons, including my obligations to the United Nations
as exoressed in Staff Reaulations 1.3 and 1.9. 1have made an aoolic7rion
IO ihe Government of iic United Siotes req~esting arylum.
I have rcsigned irom al1offisial positions 1hold in the Government of
the Soviet union and a coov of mv resianation. delivered todav to the
Soviet Mission to the ~nited ~ations, is enclosed.

1wishto insure (sic)you of my continued dedication and devotion to the
United Nations and my wish and intention to continue to perform al1my
obligations under my employment contract." (Annex 23.)

23. On February 10 he also requested a few days annual leave. This was
nranted. The Aoolicant reoorted back to work on 22 Februarv 1983. On 23
r;ebruary he wa; iold by hi; \upervisor that a member State had bbjected io his
presense in the Headquarterr cafeteria and the 2nd-iloor coffre shop.
24. On 28 Februarv Mr. Sadrv. the Director. Division of Personnel Admini-
stration, Office of ~érsonnelse&ices, delivered to the Applicant a memoran-
dum, as follows:

"1 have been requested to communicate ta you the decision of the
Secretary-General to place you on special leave with full pay, effective I
March 1983 and until further notice. This action is taken in accordance

with the provisions of Staff Rule 105.2 (a),which reads as follows:
(a) Special leave, with full or partial pay or without pay, may be
granted for advanced study or research in the interest of the United

Nations, in cases of extended illness or for other important reasons for
such period as the Secretary-General may prescribe.
Any other decision pertaining to your case willbe taken by the Secretary-

General at a later stage." (Annex 26.) STATEMENT OF THE SECRETARY-CENERAL 113

25. On I March the Applicant, in a letter to the Director, Division of Person-
nel Administration, pointed out the difficulties such special leave would cause
for his workload. He wrote, inlerolia:

"... Perhaps 1might have a hetter understanding of the significance of
the Secretary-General's memorandum if 1 could have written answers to
the following points:
1. I should appreciate being advised of the precise reasons as to why
the leave has been granted. 1 do not consider the mere statement of the
language of Rule 105.2 (a), 'for other important reasons', satisfactory to
advise me as to why this action has been taken.
2. What would be the effect of the proposed leave on the following:

(a) my free use of any and al1United Nations facilities without having
to seek permission in each instance;
(b) my continuation as a member of the Appointment and Promotion
Committee and as Vice-Chairman of the Third Working Group;
(c) the promotion which is in process for me;
(d) my career development at the United Nations including a possible
extension of my present appointment.
1shall look forward to receiving written answers to my questions at your
convenience. In themeantime, 1shall remain actively at my post." (Annex
27.)

26. On 3 March the Director of the Branch in which the Applicant worked
wrote to Assistant Secretary-General Hansen:
"Mr. Yakimetz indicated that he had not requested any leave.
The Office is currentlv eneaeed. withal1available resources beine tao-
ped, in the process of budget formulation. MI. Yakimetz is in chargeof
a few Budget Sections in the Economic and Social Sector, and has been
workin~ v;rv activelv on them
His unavailabiliiy ior an undetermined period is a major inconvenience

for the work of the Office. Reassigning his tasks to oiher programme
ofricer will dela). thc whole procesr. and probably make ii impossible io
respect the deadlines for the budget submission io CPC.
Mr. Yakimetz has indicated to me his willinnners to continue io work,
unlerr his curreni staius would preveni him [rom so doing. Your guidance
willbe vcry much apprcciated." (Annex 28.)
27. On the same date the Director, Division of Personnel Administration,
responded to the Applicant's letter of I March. He wrote, inleralia:

"2. As to your request to be advised of the reasons for the decision in
~u~-~i-~. 1 w~-~~to ooint out that in the exercise of his authoritv and
responsibility as the Chief Administrative Officer of the Organization, the
Secretarv-General has determined that. at this iuncture and uendinr! fur-
ther review, if is in the best interest of the ~rganization thai you do not
enter the premises of the United Nations. 1 would ask you therefore to
comply with this decision of the Secretary-General with immediate effect
and until further notice. You willbe advised indue course of any modifica-
tion to this instruction.
3. The above also reulies. 1 believe. to the questions you raised in
paragraph 2 (a, and (b).of Sour letier. ~oncerni"~ the re~ommendation
which u,as made for your promotion. 1am sure that the Appoiniment and Il4 APPLICATION FOR REVIEW

Promotion Board will give it due consideration al an appropriate lime in

the course of its proceedings. Finally, as regards your question as to the
nossible extension of vour~ao..intment. 1would wish to ooint out that
consideraiion of rhis matier a1lhis lime woiild be premaiure:~ou may al50
wish io rcfer IO Staff Rule 104.12 (bj which is appl~c~ble io ihis issuc."
(Annex 29.)

28. On 17March the Applicant requested a reviewunder Staff Rule 111.3 (0)
of the decision to place him on special leave. His letter concluded:
"1 again request a written explanafion as to why it is considered 'in the

best interest of the Organization' that 1 'do not enter the premises of the
United Nations' but, on the advice of my counsel and under protest, 1will
, of course comply with your decision." (Annex 30.)
29. The Applicant de facto continued his assigned work on the programme
budget in offices in New York City where United Nations departments were

temporarily quartered during construction of the new Headquarters complex.
In due course, when the new DC-2 Building wasopened, he was permitted to
rejoin his section and serve out his contract. His promotion to P-5, retroactive
ta I April 1983, was implemented. The ban on entering the main Secretariat
building, however, was never withdrawn.
30. Throughout this period his American attorney, Mr. Orville Schell, had
been discussing the Applicant's future with the Executive Assistant to the
Secretary-General, who suggested that further United Nations employment

would pose fewer problems if the Applicant could obtain United States citizen-
ship. The Applicant had been granted temporary residence status, with perma-
nent residence assured in one year. In order to comply with the Executive Assis-
tant's advice. Mr. Schell decided to forego the application for permanent
residence, and seek citizenship instead. A private bill in Applicant's behalf, to
waive the five-year statutory residence period, was introduced in the United
States House and Senate in October 1983.
31. On 25October 1983the Applicant addressed a memorandum to Assistant

Secretary-General Hansen on the subject of his future.
"My fixed-term contract with the United Nations is due to expire on 26
December 1983.
As you will recall we have had several discussions on the prospects of my

continuinn employment in the Office for Programme and Co-ordination.
1would like 16 state once again that 1 have always considered it to he a
special privilege to serve the United Nations. It is my sincere belief that
during the eleven years that I have been serving the Organization 1have
alwa~~,~~ie~ ~~ ~erform mv duties to mv fullest. however limited. abilities.
Ïalso helievethLi the inteke training in.all aspeiis of programnle planning
and budgeting in the United Naiionç ihat I receivedo\er the pas1iro yeari
while uorkinr in the Office for Proararnrne Plannina and Co-ordination
has substantially increased my potential usefulness to the Organization.

In viewof the ahove. let me express my.ope .hat you will find il possible
on the basis of my performance-Io recommend a fkther extension of my
contract with the United Nations, or even hetter a career appointment."
(Annex 32.)

32. A Performance Evaluaiion Report. whish Applicîni Ggnedon 7 Novern-
ber 1983. rated his oberall performance "Ecellcni". l'he report empha\iled STATEMENT OF THE SECRETARY-GENERAL 115

"now worked on al1 aspects of the programme planning cycle and has
acquired the technical knowledge and skills needed to supervise junior pro-
fessionals in this work. It is rare for someone to learn these technicalities
as rapidly and thoroughly as he has done."

Under Item 15. the staff member's attitude to the United Nations, the Chief,
Programme Planning Section, wrote:

"He is strongly committed Io the principles of the United Nations
Charter and in particular to an independent international civil service."

(Annex 32.)
33. On 8 November Mr. Hansen wrote:

"ln your memorandum of 25 October 1983to me you remind that your
current contract with the United Nations expires on 26 December 1983.
~ ~ ~ ~ ~ ~ ~c~ ~~ I bave recentlv siened vour nerformance report which
.
showsthat the excellent work you performed during the firrt year wiih ihe
Office for Programme Planning and Co-ordination has been cuntinued tu
~ ~ ~ ~l~sat~sfa&ion of vour immediate sunervisors. 1am elad to-note that
you have fully met our expectation of continued professionalism, dedica-
tion Io vour task and hard work, which was the basis for your promotion.

Icon<ider you a staff mcmber uhosç contribution oier [lie pasi tuo years
to the uork of ihis Office. and undoubiedly also IO ihe Ofiicei in which
vou have served before, meets the high demandsof competence and com-
mitment which are to be expected fÏom a United ~ations official.
From my perspective as head of this Office, 1find no difficulty in recom-

mending a further extension of your contract and intend to do so a1 an
appropriate time." (Annex 34.)

34. On 16 November 1983 the Applicant's American attorney, Mr. Orville
Schell, wrote to the Executive Assistant to the Secretary-General Io Say that
desnite al1 efforts the private bill to waive the statutory waitina period for
~nited States citizenshii might no1pass before Congress adjourned(~nnex 35.)
35: On 23 November 1983the Deputy Chief, Staff Service, Office of Person-

nel Services, wrote to the Applicant:
"Unon instruction by the Office of the Secretary-General. 1 wish to
inlori you that it is nG the intention of the Organi;ation to extend your

fixed-term annointment beyond its expiration date, i.e., 26 December
1983." (~nn& 37.)

36. On 29 November 1983 the Applicant wrote to the Assistant Secretary-
General, Office of Personnel Services. Mr. Nègre, requesting a three-month
extension so that he could resort to the interna1 recourse procedures.
37. On 2 December the Assistant Secretary-General for Programme Planning
and Co-ordination wrote to Mr. Nègre, saying:

"1 find it extraordinary that such a decision should be taken without con-
sulting the head of the Office eoncerned, especially in the case of an officer

with eïeven years of excellent serviceto the ~r~anization. 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
A-Fei-~~~~~~~~~~~~romotion Committee earlier this vear and is currently
in the midst of important assignments for one of whiih he is in some ways

uniauelv well aualified and which are regarded as of considerable impor-
tance b; member States. Bearing al1thGe factors in mind 1 had assured116 APPLICATION FOR REVIEW

Mr. Yakimetz, shortly alter signing his latest performance evaluation
report, that 1 intended to recommend a further extension of his contract.
Aoart from such matters of ~rinci~le 1wish to lace on record the fact
ihai'this decision if allouedIO iland-would creaieme\crc problems for my
Office orer ihc ncxi fcw month\. Since. a, sou know, Mr. Sakime17 i<
barrcd from enrering the Secreiariai building ihc rhrcc oihcr profes\ional

officers in ihe Programme Planning Scciiun haie had IO assume Mr.
Sai,imei~'s responsibilitics for \ei,eral <eciions of the 1984-1985 pro-
eramme budeet durine the Assemblv oeriod. Mr. Yakimetz was therefore
assignedfulland sole responsibility io; two important reports that must be
completed in the next three months for the April 1984meeting of CPC and
has beenworking on them for the past several months. To reassign these
reports at this stage would mean significant delays in their issuanceand a

loss in their quality.
Itis in the best interes; of the Office to continue to have the servicesof
Mr. Yakimetz. Considering Mr. Yakimetz's long and outstanding record
within the United Nations. 1strongly recommend that his appointment be
extended." (Annex 38.)

38. On 13December the Applicant requesteda review under Staff Rule 111.2
of the administration decision not to extend his contract. The letter stated:

"... General Assembly resolution 37/126, IV, paragraph 5, Statesthat
'staff members on fixed-term contracts upon completion of five years of
continuine--ood service shall be ei-en everv reasonable consideration for
a career appointment'. Staff regulation 4.4 requires that . . .'the fullest
regard shall be had;in filling vacancies, ta the requisite qualifications and

experience of persons already in the service of the United Nations'. Staff
Rule 104.14 (a) (ii) says that 'subject ta the criteria of Article 101,
paragraph 3, of the Charter, and to the provisions of staff regulations 4.2
and 4.4. the Ao..intment and Promotion Board shall. in filline 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 asthe 'Paramount consideration' . . .'the necessityfor

securing the highest standards of efficiency, competence and integrity'.
MY. Dep.rtment has made it clear to me that in their view 1 have met
those standards. My performance was rated 'excellent' in my most recent
Performance Evaluation Report. 1 was recently promoted Io P-5. 1 was
eiven to understand on manv occasions. both verballv and in writina. that
;y Department intended to iecommend a further extinsion of my aioint-

ment or conversion to a career position. The most recent assurancewas a
memorandum to me dated 8 ~ovember 1983from the Assistant Secretarv-
General for Programme Planning and Co-ordination, who wrote:

'From my perspective as head of this Office, 1 find no difficulty in
recommending a further extension of your contract and intend to do so
at an appropriate lime.'

1understand that such a recommendation has been made. 1have at al1
limes iried IOgo\crn my conduci in accordancc with the lciier and ihe spirit
of the Siaff Rulcs and rhe term< and condiiions of my conlrasi wilh the
Uniied Nations. My Performance Evaluaiion Report indicaies ihai I enjoy
hîrmoniou\ relstionships wiih niy collcîgues. I masclccicd Vice-Chairman
of ihc Appoinimcni and Promotion Commiitcc csrlier ihi, )car. a po\iiion STATEMENT OF THE SECRETARY-GENERAL 117

Given this service record and these assurances, and alter sixyears of con-

tinuous service, most staff members would have an expectancy that their
candidacy for a career appointment would be given 'every reasonable con-
sideration', as General Assembly resolution 37/126 IV requires. The con-
tested administrative decision appears to preclude such reasonable con-

sideration. The interests of good administration cannot be served by the
interruption of the work with which 1 have been entrusted by my Depart-
ment. 1can think of no impediment to the forwarding of my name to the

Appointment and Promotion Board except factors extraneous Io my per-
formance. 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
..l ..i). Extraneous factors may not be used as a consideration in promo-

~~~~~, ~~~~~~~-~-tr~~,fer or in anv of the areas where the Daramount con-
sideration must be the necessity of securing the highest standards of effi-
ciency, competence or integrity. Extraneous factors may not be used to
den"-a candidate for a oost fair and reasonable consideration. a uosition
uphéld in Tribunal ~udgement No. 310 (Estobial).

To deny me the right to reasonable consideration for a career appoint-
ment for any reason unrelated to merit, efficiency, competence, integrity-
would, 1 believe. be a violation of Article 100 of the Charter.
Therefore, 1 respectfully request that the Administrative decision be

withdrawn and my name forwarded to the appropriate Appointment and
Promotion body for reasonable consideration." (Annex 39.)

39. The reply of the Secretary-General, dated 21 December 1983,*.as signed
by Mr. Nègre. It rejected the request for an extension and declined to reconsider

the challenged decision. The pertinent paragraphs state:

"Your situation. however, is no1 similar to that of 'most staff memhers'
with comparable service records, because your present contract was con-
~ ~de~ on~the b~ ~ ~of a secondment from vour national civil service. At
the time your present appointment was made your Government agreed to

release vou for service under a one-year contract, the Organization agreed
-- ~- ~ ~ ~ ~~ ~ ~ ~tion of vour ~nited Nations service. and vou vours. .
were aware of that arrangément which, therefore, cannot give you any
exoectancy of renewal without the involvement of al1the 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

IO any other type of appointment'.
In viewof the foregoing, the reasons advanced by you in your memoran-
dum of 13December do not require the Secretary-General Io alter the deci-
sion communicated Io 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 Admini-
strative Tribunal." (Annex 40.)

40. On 26 December 1983, the Applicant's contract expired and he left the

service of the United Nations.118 APPLICATION FOR REVIEW

41. On 3 January 1984, Mr. Yakimetz filed an Application with the United
Nations Administrative Tribunal. In his Pleas he requested the Tribunal:
"A. To consider his case at the Spring 1984 session of the Tribunal.

B. To order the rescission of the administrative decision, dated
23 November 1983.not to consider an extension to the Applicant. .United
Nations service.
C. To adjudge and declare that no legal impediment existed to his fur-
ther United Nations employment after the expiry of his contract on
26 December 1983.
D. To adjudge and declare that he had an expectancy of further

employment.
E. To adjudge and declare that he was illegally denied his right to
reasonable consideration for a career appointment.
F. To order that his name be forwarded to an appropriate body to give
him such reasonable consideration for a career appointment
G. To order payment to the Applicant of salary los1during the period
of unemployment between the expiry of his contract and the reconstitution
of his career.
H. To order reimbursement of expenses, if any, reasonably incurred by

the Applicant in prosecuting this Appeal, such expenses to be determined
by the Tribunal before the close of proceedings."
At the conclusion of the Argument he asked the Tribunal to find (p. 28):

- that no legally valid secondment took place; and
- that the "Special Conditions" in his contract signed on 9 December
1983 were amended by agreement between the parties on or after 10

February 1983; resulting in a new contractual arrangement; and
- that after his contract expired on 26 December 1983no legal impedi-
ment existed to the continuation of his United Nations appointment;
-~~.
- that he had an expectancy of continued United Nations service; and
- that his riaht to reasonable consideration for a career ap.o~ntment was
illegally denied; and
- that the Applicant suffered damage as a result of this denial;

and therefore:

- to find that the contested administrative decision was illegal; and
- to order that the Applicant's candidacy for a United Nations post be
eiven reasonable consideration: and
- ;O award damages to the ~ppiicant in the amount of the salary he
would have received had his services been continuous. (Document 19.)

42. On 4 January 1984, at the Daily Press Briefing, Mr. J. Sills, the
spokesman for the Secretary-General, responded to reporters' questions, as

follows:
"Mr. Sillssaid in replythat the process of seconding people to the United
~ ~ ~ ~ ~ ~ ~ ~ ~ violation of the Charter. It was done by a number of
States, no1jubt the Eastern European countrics. As examples. hc ciicd Jean

Ripert. Dircctor-General for Developrnent and International Economic
-.-".r.~~~~~-~~,wh~ ~ ~ seconded from the French Government. and
Yasushi Akashi, Under-Secretary-General for Public Information, who
was seconded from the Japanese Government. He said the United States STATEMENT OF THE SECRETARY-GENERAL 119

had specific legislation permitting secondment of United Statesofficials to
international organizations. He added that as Representative of the
Secretary-General on Cyprus. Javier Pérezde Cu&llar,had been seconded
from the Peruvian Government to the United Nations.
In rcsponsc io a quertion, Mr. Sills raid Mr. Yakirneiz's coniract had
cxpircd ai ihc cnd oi 1983and had noi bern rcneucd hecuuserhe Soi~rr
(;overn»lenr hud no1rznebvedrhe srcond~~~rn r.mphasis added.) If hlr.
i'akimeiz chose to appl) for a position \rith ihc United Nations. he would
be piven every consideraiion along uith urher applicani, for any posilion.
including his old position." (Annex 43.)

43. The New York Times of the same day, 4 January 1984,carried an article

on the non-renewal of Mr. Yakimetz's contract. In the article the Executive
Assistant to the Secreiary-Ceneral. Mr. Emilio de Olivares, is quoted as saying:
"We didn't extend it because we can't." "To have the contract extended", Mr.
Olivares said, "Soviet consent was essential. But, he said. 'The Soviets
refused'." (Annex 44.)
44. Responding specifically Io the above newspaper report, Mr. Patricio
Ruedas, Under-Secretary-General for Administration and Management, wrote
a letter to thNew York Times, which waspublished on 25 January 1984. He,
too, recited othereminent officials who had been seconded and United States
legislation permitting secondment, and concluded:

"The United Nations endeavours Io obtain qualified staff from every
one of ils member States. Direct employment as wellas loans from govern-
ments have been used, and continue Io be used, as normal recruitment pro-
cedures. The main difference between the Iwo is that a person who is on

loan reiurns 10his gobernmeni unle\\ ihai gutcrnmeni agrees oiherwise-a
principle applicable indl1cases. and noi only ihose involving the USSR "

45. On 9 January 1984, Mr. Yakimetz forwarded a new P-il Personal
History Form to the Division of Recruitment, Office of Personnel Services,
applying for a job at the United Nations. Under ltem 4 (Nationality(ies) al
birth), he wrote "USSR". Under ltem 5 (Present nationality(ies)), he wrote
"USA, pending". Under ltem 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 "1have applied forUS citizenship. The bill No. S.1989
is now before U.S. Senate."
Althoueh his old nosition remained unencumbered. he received no
- .
acknowledgement of his application.
46. On 14March 1984, the Respondent filed his Answer with the Tribunal.
The Anolicant filed written observations on 13 Auril 1984. attaching the
stateméntsof Mr. Sills, Mr. de Olivares and Mr. ~uedas, quoted supru. which
had been made after his Application was filed. The Judgement of theTribunal,
against which the present appeal is directed, was dated 8 June 1984. The
majority Judgement found that his pleas could not be sustained but expressed
"dissatisfaction with the failure of the Respondent Io record sufficiently early
and in ,pccific terms the faci ihai he had g/vcn ihc question of ihc Applicant's
career appointment 'everyreasonable consideraiion' as enjoined by the Cencral
Asscmbly resolurion". The ioncurring siaicmcni dcnicd ihat he was eligiblc for120 APPLICATION FOR REVIEW

such consideration. The dissenting opinion found that he was illegallydenied his
rieht to reasonable consideration for a career aooointment.
-47. On 20 July 1984, Mr. Yakimetz made an'application to the Committee
on Applications for Reviewof Administrative Tribunal Judaement.. He araued -
that:~

"1. The Tribunal exceeded its jurisdiction and competence.
II. The Tribunal failed to exercise jurisdiction vested in it.
111. The Tribunal Judgement erred on questions of law relating to
several provisions of the Charter.
IV. The Tribunal committed fundamental errors of procedure which
resulted in a miscarriage of justice. (Doc. 1.)"

The comments of the Secretary-General on the Applicant's Written Statement
were circulated on 10August 1984(doc. 4).
48. On 20 August 1984, the United Nations Staff Union issued a statement
in respect of the case (Annex A hereto). It said:

"The Staff Union has followed very closelythe case brought by a former
staff member, Vladimir Yakimetz. challenging the decision of the Sec-
retary-General not to consider a further extension of his contract as well
as the possibility of a career appointment following the expiration of his
previous contract which was based upon secondment from his national
government.
The Staff Union feels that this case has substantial imolications for the
independence and integrity of the international civil ser\,;ce. Itvieub with
alarm the failure of the United Nations administration to defend ihe rights
of this individual staff member and the annarent nolitical influence which
..
has interfered with the proper adjudication of this case.
The staff are further alarmed by the implications that support of this
decision would have for the career international service. It apparently
ignores the General Assembly's statement in resolution 35/210 'that no
post should be considered the exclusive preserve of any memher State or
group of States .. .' and the clear principle of the independence of the
Secretariat outlined in Article 100 of the Charter.

In accepting his appointment. the Secretary-Ceneral stated on 15
December 1981 :
'1am to head a Secretariat which must meserve its basic sense as an
authentic international civil serviceso as génuinelyto serve the interests
of the international community. In accordance with the Charter, this
necessarily entails strict independence with respect to the national

interests of the States which are part of the Organization.'
He further stated, in an address to the staff on 12 January 1982:

'As part of my effort to maintain the independent status of the
Secretariat. I shall seeto it that the career service of the staff will not be
adverselvaffected bvanv considerations unrelated to merits. Soecificallv.. .
I wish to reassure the staff that in matters related to career debelopment.
nationaliiy as such will noi be considered as a relevant factor. As much
as any organization, and perhaps more than most, the United Nations
needs to reward merit and put a premium on good performance.'

The staff member's qualifications and merit have never been disputed.
The sole question relates to his status and in particular to his nationality. STATEMENT OF THE SECRETARY-GENERAL 121

In the viewof the staff. should an. -overnment be oermitted to raise obiec-
tions to continued employment on the basis of interna1political considéra-
tions. the entire concept of an independent international civil service is
thrown into i,.oardv .
Apiiri from ihc question of hi, nationiilit). ihcrc was no impcdiment for
hi\ being ionsidered for furiher cmployment. Article 101.paragraph 3. of
the charter is exolicit in statinz that the 'oaramount consideration in the
employment of the staff and in-the determination of the conditions of ser-
vice 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.'
The contested decision would clearly thwart the purpose of the General
Assemblv's resolution 37/126 which decided 'that staff members on fixed

icrm iippoininients upon completion of rive years oi coniinuing pi)od rer-
\,iceshiillbegiven ehery rca,onahle ionsideration for iciirecrappoinirneni'.
ln thisinstance. a leealexoectancvof continued emolovment wascreated. an
expectancy which his been explicitly recognized inprior tribunal decisions.
If this principle is to he upheld, it cannot be made subject to exceptions
based upon pÜrely political considerations.
Given the implications that such a precedcnt will have, we feel it incum-
bent upon al1concerned to assure that the final decision rests upon a valid
and impartial legal determination. For this reason we support the appli-
cant's request to the General Assembly's Committee on Applications for
Reviewof Administrative Tribunal Decisions with a view to requesting an
advisory opinion from the International Court of Justice."

49. The Committee deliberated during four closed sessions starting on 20
August 1984. Counsel for the Applicant made a written request to be present.
as an observer; which was denied. On 28 August 1984. an open meeting was
held at which the Chairman announced the decision, and at which several
members madestatements for the record. The Committee decided that there was
a substantial basis. within the meaning of Article II of the Statute of the
Adminisirati\e Tribunal. for the ~pplica-lioii for revicwof Judgcrnenl No 333.
and reque~tedan advisory opinion of the Inierniitional Court of Justice on the
following questions :

"(II In its Judeement No. 333 of 8 June 1984(AT/DEC/333). did the
~niled Nations ~dministrative Tribunal fail to e\;rcise jurirdiition restcd
in iiby noi responding io the question N hether a legal impcdiment chisrcd
to theurther emolo~ment in the United Nations ofthe ~~~lican..after the
expiry of his coAract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judge-
ment No. 333, err on questions of law relating to provisions of the Charter
of the United Nations?" (Doc. 6.)

C. The Legal Issues

Preliminary Observations on the Scope of Review

50. The narrowness of the grounds on which a judgement of the Tribunal
may be challenged under Article II reflects the considerahle difficulties ex-
perienced by theceneral Assembly, in three years ofvigorous debate from 1953
to 1955, in finding a satisfactory solution to the question of judicial review of122 APPLICATION FOR REVIEW

Tribunal deiisions. Conscioui of there difficulties, the Court ha\ concluded that
the iunction of the Commitree on Applications ior Revteu of Admini$trati\e
Tribunal Judgements is "merely to make a $ummary examination of any objes-
lions io jiidgements of the Tribunal" to deiermine wheiher there was "a
substantial basis for the ap..ication" (I.C.J. Re~orrs 1973. D. .7.). lis affir-
mative decision,

"based only on a prima facie appreciation of the objections, is merely a
necessary condition for the opening of the Court's advisory jurisdiction.
It is then for the Court to reach its own, unhampered, opinion as to
whether the objections which have been raised against a judgement are well
founded or not and to state the reasons for its opinion." (I.C.J. Reports

1973, p. 177.)
"The Court may interpret the terms of the request and determine the
scope of the questions set out in it. The Court mav also take into account
an; matters germane to the questions submitted to it which may be
necessaryto enahle it Io form its opinion." (I.C.J. Reporls 1973,at p. 184.)

A negative vote on any of the grounds should not be interpreted as a directive
to the Court to exclude any of the issues of the case from its deliberations:

"11is not to be assumed that the General Assemblr would thus seek to
fetter or hamper the Court in the discharge of its judicial functions: the
Court must have full liberty to consider al1relevant data available to it in
forming an opinion on a question posed to it for an advisory opinion."
(Advisory Opinion, I.C.J. Reports 1962', a1 pp. 156.157.)

51. The Tribunal's judgements are resjudicata as Io the parties and binding
on the General Assemblv. Thev affect not onlv the riehtsof the oarticrlar staff
member who is the ~pplicant: but al1other iresent and future staff members
similarly situiited. They affect the altitudes and practices of the Administration
of the Secretariat. and sometimes-as inthis case-its relationshio with member

States. They affect the subsequent jurisprudence of the ~ribunaiitself and th;
of the other international administrative tribunals. They can have a profound
effect on the morale and therefore the efficiencv of thestaff. It is therefore of. .~
the utmost importance that the judgements of tie Tribunal be able to withstand
the most rigorous judicial scrutiny for consistency with the letter and spirit of
the Charter, and with general principles of law and fundamental fairnesi, both
substantive and procedural.
52. The Applicant therefore respectfully requests the Court to interpret the
scope of its advisory reviewso as to give weightto tbese broader considerations.

1. Did the UniledNarions Administralive TribunalFail to Exercise the Jurisdic-
lion Vested in Il by no1 Responding Io the Question whelher a Legal Impedi-
ment Existed to theFurlher Employmenl in the UnitedNations of the Applicanr
afler the Expiry of His Conlract, 26 December 19837

(i) The standard ro be applied

53. The Court in the Fasla case shed light on the kind of defects that could
be considered fatal and the juridical tests Io be applied:

' Cerroin Expenses ofthe UnitedNorion(s Arricle17, parogroph 2, ofthe Chorrer)124 APPLICATION FOR REVIEW

member States, independently, in 1954, of the Commission of Jurists. A laose
from its own standards or from ils own previously established jurisprudence
could be considered as a failure to exercise the jurisdiction vested in it.

(ii) The issue bsefore the Tribunal

58. The Applicani did not ask the Tribunal to order his reinsraiement. Hedid
no1 ask ihe Tribunal to determine hi "suitability as an international civil ser-
vant". He did noi ask the Trihunal to subsiitute its Judgemeni for thai of the
substantive depariment. ihe Appointmeni and Promoiion Board, or the
Secretary-Gencritl. He asked the Tribunal io makc a legal deterniinarion as to
uhether an impediment existed Io his luriher United Nations service after his
contract expirçd on 26 December 1983.Did his contrasiual $tatus impose a Iegal
impediment to further service? Or did a leeal imoediment inhere in the natire
of-the Secretary-General's dulies and obigations towards the Applicant or
towards member States? Such a determination was a necessary preliminary to
deciding whether the terms and conditions of his contract had been violated,
and whether remedy was due.
59. The terms and conditions of his contract included mandates of the

General Assemhly. Under resolution 37/126, paragraph IV.5 (whichwas not yet
part of the Staff Rutes but which the Tribunal accepted as being binding on the
Respondent) he was entitled, after five years of continuous good service, to
reasonable consideration for a career appointment. Staff regulation 4.4 (also
part of the terms and conditions of his contract) 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(3) of the Charter, and to the provi-
sions of staff regulations 4.2 and 4.4, the Appointment and Promotion
Board shall, in fillingvacancies.normally givepreference, where qualifica-
tions 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".
60. The Applicant's excellence was undisouted. He occuoied a oermanent
port, one tha1,by iicnature. requircd a long-krm commitme~i. His ;ubstantive
department had requested hi\ coniinuarion in service. Under such circumsiances
any other staff member with the requisite five years on fixed-term contracts
would have, not only the right of reasonable consideration for a career appoint-
ment, but also an expectancy that such consideration would be favourable. Yet
he was notified on 23 November 1983that his fixed-term appointment would
not be extended. In response to his request for a review of that decision, Mr.
Nègre, the Assistant Secretary-General for Personnel Services, wrote:

"Your situation, . . .is no1similar to that of 'most staff members' with
comparable service records. because vour oresent contract was concluded
on the basis of a secondment from your national civil service. At the time
your present appointment was made your Government anreed to release
YOU for service under a one-vear contract. the ~reanization aereed so to
iimit the duration of your ~nited ~ations'service,and you yirself were
aware of that arrangement which, therefore, cannot give you any expec- STATEMENT OF THE SECRETARY-GENERAL 125

tancy of renewal without the involvement of al1the parties originally con-
..~~~~~ ~ ~
Furthermore, you are serving under a fixed-term appointment, which, as
exoressl..orovided in Staff Rule 104.12 (b)and reiterated in your letter of
appointment, 'does not carry any expectancy of renewal or of conversion
of any other type of appointment'."

61. In the mind of Mr. Nègre, therefore, there were at least three legal
impediments to his consideration for further service. In the mind of Mr. Nègre
he was ineligible for "every reasonable consideration" without an expectancy of
renewal. He was also ineligible "without the involvement of al1 the parties
originally concerned", and the Organization had a duty to limit the duration of
his United Nations career no matter how valuable his services minht be. Mr.
Nègre's letter indicates that he believed a secondment contract bestows a right
on a government to veto further employment under any other form of contract
and chus taint the seconded employee in perpetuity.
In the weeks that followed, it became clear that other high officials shared
this view (paras. 42 to 44, supra). On 4 January 1984, the spokesman for the
Secretarv-General. Mr. J. Sills. said at the Dailv Press Briefinn: "Mr. Yaki-
ietz's fontract had expired ai the end of 198j and had not-been renewed
because the Soviet Government had not renewed the secondment." Mr. Emilio
de Olivares, Executive Assistant to the Secretary-General, in his 4 January 1984
interview with the New York Times, is quoted as saying, "We didn't extend
because we can't". "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, in his
letter to the New York Times, published on25 January 1984, wrote:
"... a person who is on loan returns to his government unless that govern-
ment aarees otherwise-a vrinciple applicable in al1 cases, and not only

those ilvolving the USSR".
62. Despite the unequivocal and public statements by senior officials that the
impediment in the way of further employment for the Applicant was the
requirement of USSR Government agreement and the refusal of that agreement
("The Soviets refused") the Secretary-General, in his legal persona as the

~es~ondent beforethe Tribunal, deniëd that this was the case. ln paragraph 21
of the Respondent's Answer before the Tribunal, he said that the explanation
of Mr. ~&re (quoted in para. 66. supra) was merely a paraphrase of the prin-
ciples set out in Judgement No. 92, Higgins. He went on to state:
"Applicant appears to allege that consent of government was regarded

by the Secretary-General as the sine qua non in this case and that lack of
consent of government was the reason why Applicant's case was not put
forward for consideration by the Appointment and Promotion Board:
Respondent denies this allegalion." (Doc. 21.)

In paragraph 22 of his Answer, he States:
". . .Annlicant's resianation and request for asylum . .. obviated any
necessity to consult anygovernment for consent, since further appointment
on the basis of secondment was obviously out of the question".

The Respondent, therefore, in his submission to the Tribunal, effectively
admitted that the reasons given by Mr. Nègre in hisrejection of the Applicant's126 APPL~CAT~ON FOR REVIEW

request for review, as well as the reasonsgiven publicly by senioofficiaisand

agents of the Secretary-General, were basedon a mistake of law, since no fur-
ther secondment was contemplated hy any of the three parties involved.

(iii)Did the Tribunol "opply ils mind" to the questionsput by the Appliconf,
ond exercise ils jurisdicfionol powers in ifs resolution?

63. In order Io resolve the questions before it, it was necessary for the
Tribunal Io make a determination of the Applicant's rights and contractual
staius: of the effecis on ihai siaiur of his resignation [rom hir gotcrnment <in
10February 1983:and of hi, righis and siatus at the end of his one-sear coniract
on 26 December 1983.

It was also necessary to determine the nature of the Secretary-General's
obligation towards the Applicant; under General Assembly r~solution 37/126,
IV, paragraph 5. and whether he fulfilled that obligation.

A. Concerning the ApplicontS conlrocluol slolus

(0) The Applicant's Arguments

M. The Applicant contended that he was never in anv leaallv coanizable
senseon secondment. Al1 of his United Nations P-Il ~ersonaï~&tor; forms,
forwarded and endorsed by the USSR authorities, stated that he was not, nor

had ever been, a "permanent civil servant in lhisl aovernment's emolov". His
firrt tuo I.eticrs of~~ppoinimcni, in 1969and in 1977.ior fiie years&ch, niade
no mention of secondment and coniained no "Speiial Conditions". ï'hçre ir nu
indication from the do~.umcnt\ available. ihat the USSR auihorities ured the
term "secondment". They merely presented his candidacy, in 1977, and in

November 1982 agreed "to the extension of the contract of Mr. Vladimir
Yakimetz". Since the five-vear contract immediatelv ..ecedine this extension
carried no mention of secondment, the extension introduced a new term. The
Applicant signed the contract because al the lime he had no alternative. The
mentions of secondment aopear to emanate unilaterallv from the United
Nations, as though the ~dministration assumed that a11 candidates from

Eastern European countries were permanent civil servants.
65. Even if a lerallv coanizable~secondment took olace. the Aonlicant con-
tended that it endid with-his resignation from the ÛSSR Government on 10
February 1983. His contract of employment. beinx between himself and the
United Nations, remained in force, and the only effect of his resignation was
to relieve his Government of any obligation it might have had to keep a post

for him, and to relieve the Secretary-General of any obligation he might have
had to inform, consult or secure the consent of the USSR authorities in any
future dispensation concerning him.
He argued that his one-year contract signed on 9 December 1982 was
modified by agreement between the parties on or after 10 February 1983. On
that date he notified the Respondent of a change in his status inconsistent with

the Speciol Conditions. The Resoondent. bv forbiddine. his entrv to United
Nations premiw. introduced hi; oun amendmeni. ~hur modifkd by both
sides,the Applisani continucd io uork. and the Respondeni io asrign him duties
and pay him, under the basic contract bf emolovment.
66: If any obligation to consult his Gove;nkent survived the Applicant's

resignation from that Government, the Applicant argued that no such obliga-
tion could have survived the contract itself. STATEMENT OF THE SECRETARY-GENEPAL 127

He contended that evenif the Respondent had bound himself to seekthe con-
sentof the USSR authorities for an extension of secondment, no legalconstraint
existed after the expiry of his contract since there could be no question of
another secondment. His status after 26 December 1983was the~~-~ ~ ~ ~t l.ke
any other fixed-term employee with an excellent service record. with the same
right to reasonable consideration for further employment.

(b) The Previous Jurisprudence of the Tribunal

67. The iurisorudence on which the Aoolicant relied ~ ~~ ~ancine these
arguments ;as the Tribunal's own. In ~udgémentNo. 92 (Higgins) the ~Yibunal
distinguished three kinds of staff migrations: "transfer". "loan" and "second-

ment". "Transfer" is "the movemenÏ of a staff member from .~~~-~eani-~tion~
to another, with the agreement of both organizations and the staff member con-
cerned, on the understanding tbat the releasing organization will be under no
obliaation to accent his return to it." "~oan5s"the as~-~nment of a staff
member from onr'orpanization 10 iinoihrr for a Iimited peiod. during which
hr \vil1bc subject to ihc admini~irsiive superi~isionof the rcccivinp organi7aiion

but will continue Io be subject Io the staff regulations and rulesof the releasing
organization." Under a "secondment" a staff member is "subject Io the staff
re-ulations and rules of the receivine- -aanization. but will retain his ri-hts of
employment in the releasing organization". The receiving and releasing
organizations cannot Vary the terms of the secondment without the consent of
the staff member concerned.

68. The Higgins case. however, concerned an interagency secondment, in
which both the releasing and the receiving organization applied basically the
same rules and were euided bv common nrincinles: The relationshio of an . .
employee to a nati~nar~overnment is different in fundamental ways from the
relationship between an international civil servant and an international
or-anization. Therefore.~.ecause of Article 100 of the ~harter and Staff
Regulations 1.1, 1.2, 1.3 and 1.9 a secondment from a government musi be

more strictly construed than an interagency secondment. The Tribunal made
clear, in Judgement No. 192 (Levcik), the strictness of the standards to he
applied where a government is involved. It conducted careful scrutiny of the
correspondence and memoranda to satisfy itself that the requirements of
secondment had beenmet. It distineui-hed between a standard formula usedbv
the Office of Personnel servicesand an expression of legal intent. It demanded

that the consent of the staff members be real rather than nominal. Judaement
No. 192, in paragraph V, held that:
". .in theabsence of3 secondment apreed riby al1parties conccrned . . .

the Rc<pundeni iannot legally inioke a desision of a government io jusiify
its own action with regard Io a staff member"
The IL0 Tribunal, in Judgment No. 431, In re Rosescu. applied the same

strict standards, and found that to "defer to the will of the Romanian
authorities", where an employment relationship hetween the complainant and
his Government had ceasedto exist. was a misuse of authority.

(c) The Tribunal's Analysis in Judgement No. 333

69. The Judgement concludes, in paragraph III,that "al1 three parties (the
Respondent, the Government of the USSR and the Applicant) considered the
Applicant's appointments of 28 December 1977and 8 December 1982as being128 APPL~CAT~ON FOR REVIEW

on secondment from the Government of the USSR". What the oarties "con-
sidered" is a subjective standard, capable of much elasticity', aad not one of

the "requirements" articulated in Higgins or Levcik. The Applicant had
answered "No" on two Personal Historv forms. eieht vears a~art; forwarded
and endorsed by the USSR Ministry of koreign'~ffairS, to théquestion "Are
you now. or have your ever been, a permanent civil servant of your Govern-
ment?'' The Judnement notes that he had once been a teacher at the Moscow
I>hysical~n~incc;in~Inrtirute-a non-tenured position rclinquished some eight
years before the signing of the contract in question. The Judgement also notes
his Icttcr of resignation from the Ministry of Foreign Affairs. The relaiionships
of 011Russian siaff members wiih international organizations are handled by the

Ministry of Foreigii Afain, iio matter who thcir previous employers had
been,
70. The departure from its own previnitcjttri\priidence is more vriking in the
Tribunal majority's examination of the Applicani's siaius after his resignaiion
on 10February 1983.Whcreas the Tribunal in Hlg~insand Levcik, and ihe IL0
Tribunal in Rosescu, had held the consent of ihe siaff member to be an e?sential
requircmcnr of secondmcnt, the Judgement concluded, in paragraph XIII. [hat
the staius of \ccnndrnent perii,ted alter the Applicant had u,ithdrawn his con-

sent by resignation. Under the Higgrns definition a seconded staff member is
"subject to the staff regulations and rules of the receivingorganization". retain.
ingonly a right of re-employment in the releasingorganiraiion. Hou,ever. in ihic
case, the Tribunal majority implics that a seconded staff memher is denied cer-
tain righis. and the Respondent relicvedof certain obliaations soecified bv ihose
regulations and rules. ln particular, in paragraph ~lithe ~udgement concedes
that but for secondment the Applicant "could. in the jurisprudence of the

Tribunal. have . .. ex~ectation of one kind or another for an extension .. .".
Paragraph XVlll impiies ihat a "background of serondmeni" exsludes a staff
member from cxi\ting procedure? of appointment and disables him from receiv-
inn a orobationarv a~oointment. ~araiÏaoh XI. which notes that his reauest for
leave'to return t& Gscow to train a successbr "was refused by the United
Nations", and the conclusion that "he must necessarily face the conseauences
of his actions". imolv that a secondment nullifies the-staff member's oath of
office and the~taff.~egulations requiring him to act in the interests of the
United Nations and no1to receiveinstructions from any external authority. The

concurrine. statement's orohibition of anv further aooointment "without the
consent O? the governméntconcerned" implies that ;secondment relieved the
Respondent of his obligation to recruit staff on the principle of merit. and
erased his dutv not to s&k instructions f~om ~n~ ~~~,i~ ~ ~ ~ ~~ ~ ~ ~~. ~~
71. Only thédissenting opinion examined thestatus of the Applicant after his
contract expired on 26 December 1983, and concluded that since there was no
possibility and no desire, either on the part of the USSR Government or on the
part of the Applicant, that he rejoin the service of that Government, there was

no impediment imnlied by the nature of secondment to orevent his further

"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; how-

'Thus forexample.Mr. PatricioRuedas.Under-Secretary-Genera flrAdministration
and Managementi,n hisletterto thNew York Timer (para.44,supro) apparently"con-
sidered"that secondmentwassynonymouswith 'loan". STATEMENT OF THE SECRETARY-GENERAL 129

ever valuable or necessary his services might be. It cannot be believedthat
the Respondent would everhave been a party to so unreasonable an agree-
ment .. ." (Para. 10.)
$

B. Concernlng the obligation of lhe Secretory-Generol towords theApplicont
under Generol Assembly resolulion 37/126, IV, poragroph 5

(IIT )he Applicant's Arguments

72. The Applicant argued that, having rendered six continuous years of
service highly rated by his supervisors, he came under the terms of General
Assemblv resolution 37/126. IV. oaraeranh 5. and had a rieht to "everv
. -. .
reasonîble consideraiion" for a career itppointmeni. Since h;\ ,ubstaniiré
departmeni had several limes indicaicd ils entire raiisfaciion wiili Ili,scrbicca
and intention to propose his continued employment, he had a reasonable expec-
tation that such consideration, unless precluded by some legal impediment. .
would be favourable. He argued. in his Observations upon rhe Answer of lhe
Res~ondenr, that the General Assembly did not make consideration for a career
appoinimeni conditional upon expeciancy of renrwal Indeed the re\oluiion had
made oh\olcre the Tribunal'a previour jurisprudencc on expeciîncy, except for
periods of four years or less under fixed-term contracts.

(b) The Previous Jurisprudence of the Tribunal
73. In deierminiiig whai ronsiiiuted full and fair ~.onsiderîiion. the Trihunitk
hai,e always demînded procedural rectiiude. Thus. for euample. in Judgenienl
No. 158(foslol ihe Triburial found thal [hr circulation of an insomoleie faci-

sheet "seriously affected [Mr. Fasla's] candidacy for a further exteniion of his
contract". In Judgement No. 310 (Estobial) the Tribunal held that the Charter
and the staff rules demandedthat consideration be real rather than nominal. In
that case the ~dministration went through the motions of considering Mr.
Estabial. TheTribunal found those motions unoersuasive, and held that dueto
an errorof law the Respondent had in fact failed to give full and fair considera-
tion Io his candidacy.

(c) The Tribunal's Analysis in Judgement No. 333
74. The concurrine. statement denies that the Aoplicant was eli~iblefor con-
sideraiion for a carccr appoiniment The majority Judgemeni. despite iis con-
clusion thît consent of his Go\,ernmcnt \ras a requisiie for furiher employmeni

and hence that without that consent, any consideration would be pointless,
nevertheless finds that he was entitled to consideration, and got it.
75. The opinion finds evidence that reasonable consideration was in fact
given in Mr. Nègre'sletter of 21 December 1983which Statesthat the Respon-
dent had "given careful consideration ta the issues raised in your request for
administrative review". The issues in question were raised by the Applicant in
his letter of 13December, nearly three weeksafter the Deputy Chief, Staff Ser-
vices, had written to the Applicant:

"Upon instructions by the Office of the Secretary-General, 1 wish to
inform you that it is no1 the intention of the Organization Io extend your
fixed-term appointment beyond its expiration date, i.e., 26 December
1983."130 APPLICATION FOR REVIEW

The Judgement holds, in paragraph XVIII, that "the Respondent had the sole
authority to decide what constituted 'reasonable consideration'"-a departure
fromthe Tribunal's insistence, in previous Judgements, on procedural rectitude
based on full and complete information. In paragraph XX the Tribunal ex-
presses

"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",

thus implying that it would have been satisfied, in this case, with standards Far
less exacting than those laid down in Judgement No. 310, Eslabial. The dis-
senting opinion finds that he was illegally denied consideration.

(iv) ConcIusion
76. The Aoolicant resoectfullv submits that the Tribunal failed to "aoolv ils
.. .
mind" to the' determination oi his rights and contractual status, and the
Secretary-General's obligations towards him. The Judgement held that he was
on secondment from the Government of the USSR afier his resi~~Ut~ ~ ~ ~ ~ ~
thai Go\,ernnieni. although the only role of the releasing organizaiion, aicord-
ing Io the Hl~~lnsanaiysis. is Io preserve a right of re-employment. The Judge-
ment. in .arag-.~h IV. endorsed Mr. ~èare's view that "since the involvement
of ail parties concerned was necessary-for the renewal of the Applicant's
appointment, such renewal was impossible under the circumstances". although
the Resoondent had soecificallv wiihdrawn that statement in his submissionio
the ~ribunal, since no furthe; secondment was contemplated. And, having
determined that "renewal was impossible", the Judgement then concluded that
he was given "reasonable consideration for a career appointment" by the

Secretary-General himself.
77. Whatever consideration was given to the request for review, considera-
tion for a career aooointment could not have been reasonable if the Resoondent.
under an errorof iaw, believedthat he was unable to offer a career appointmen;
without the consent of the USSR Government. It could not have been
reasonable if he understood that consideration was conditional on an expec-
tancy of renewal. It could not have been reasonableif he believed he wasobliged
to limit the duration of the A~olicant's service to one vear.Ilcan scarcelv have
been reasonable if the head oiihe substantive department concerned waitaken
entirely by surprise, and if, moreover according Io his Assistant Secretary-

General. "the decision if allowed to stand would create severe oroblems for lthe
programme Planning and Co-ordination] Office over the néxt few monihs"
(para. 37, supra). And if the Secretary-General found himself under pressure
"10 diverse effect by the permanent missions of two member States", any deci-
sion hetook may not have been in the untrammelled exerciseof his discretionary
powers.
78. Wherefore the Aoolicant resoectfullv.. .vs the Court to find that the
sonclusions rearhed by & ~ribunal'as to his siatus and righir afier hir coniract
cxpired on 26 December 1983 were iniernally conrradictory and inconsistent
with the Staff Rules: and ihat its conclusions as to the nature of the Resoon-
dent's fulfilment of those obligations were not supported by the evidence béfore

it. Further, the Tribunal did not abstain from deciding points not indicated in
the submissions before it, such as the Applicant's "suitahility" (see paras. 88 to
98, infra). And, in so far as it concluded that "no discernable injury" was STATEMENT OF THE SECRETARY-GENERAL 131

(aused by the Rcspondrnt's oniissions. ihc Applicant rrprctfully requests the
Court IO find thai the basic interesis of justice acre not \er\ed: and thai Judgc-
ment No. 333 should be ,ri a,ide under ihii ground i)f challenge.

II. Drd the United Nottons Administratiir Trihunal, in the Same Judgen~ent
No. 333. Err on Ou-stions of LOH'relotma to Provis-jionsofrhe Chorter of the
Unired Nitions

(i) The scope of review

79. No previous application for review of a Tribunal Judgement has raised
so squarely a question of Charter interpretation, and therefore the Court has
no1 had the opportunity Io lay out the parameters of this ground of challenge.
The Court has since 1948strongly affirmed ils competence to exercise an inter-
pretive function in regard to the constituent treaty of the United Nations as
"within the normal exercise of its judicial functions", and as part of its role "in
the renewal and development of international law" (Conditions of Admission
of a State to Mernbership in the United Notions (Article 4 of Chorter). I.C. J.
Reports 1948).

". .. If is very much the business of this Court Io 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, at p. 359).

80. In its jurisprudence the Court has repeatedly invoked the spirit. as well
as the letter of the Charter. Thus, for example. the majority in the first of the
Membership cases :

"Moreover, the spirit as well as the terms of the paragraph preclude the
idea that considerations extraneous Io those principles and obligations can
prevent the admission of a State which complies with them . . ."(I.C.J.
Reports 1948, a1 p. 63.) (Emphasis added.)

Judge Lauterpacht; in Voting Procedure on Questions Reloring to Reporfs ond
Petitions Concerning the Territory of South West Africo:

"There is only limited merit in a judicial interpretation intent upon
extracting every ounce of rigidity from a written constitution or in simpli-
fying the issue by concentrating exclusively on extreme solutions. Thus,
while unanimity, absolute or qualified. may be entirely alien to the spirit
of the Charterand as such inconsistent with it, this does no1apply to alter-
native solutions falling short of unanimity." (I.C.J. Reports 1955, at
p. 113.) (Emphasis added.)

And, most eloquently, Judge Alvarez throughout his dissenting opinion in the
Anglo-lronion Oil Co. case (Jurisdiclion), e.g. :

"Then it is necessary to avoid slavish adherence to the literal meaning of
legal or conventional texts; those who drafted them did no1 do so with a
grammar and a dictionary in front of them; very often, they used vague
or inadequate expressions. The important point, therefore. is to have
reuard to the soirit of such documents, to the intention of the parties in the
case of a treaty, as they emerge from the institution or convention as a
whole, and indeed from the new requirements of international life."
(I.C.J. Reports 1952, at p. 126.) (Emphasis added.)132 APPLICATION FOR REVIEW

81. In the two advisory opinions rendered since Article II of the Tribunal's
Statute was adopted, the Court has made clear that this ground of challenge
considerably widens the scope of review to include matters of substance.

".. . 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 . .. be called upon to review the actual
substance of the decision" (I.C.J. Reports 1973, at p. 188).

In the Mortished case, the majority opinion found that
"the Court clearly could not decide whether a judgement ... has erred on
a question of lawrelating to the provisions of the Charter, without looking
at that judgement to see what the Tribunal did decide ... to that ex-
tent the Court has therefore to examine the Tribunal's decision on the

merits . . ."(I.C.J. Reports 1982, at p. 358).
In his dissenting opinion, Judge Lachs agreed as to the scope of review:

"The requirement of 'connecting up' with the Charter, which is neces-
sary for the Court to be able to examine the possibility of legal error. is
thus a broad one, relating to the subject-matter of the Tribunal's delibera-
tions, not necessarily to its actual analysis of Charter provisions." (I.C.J.
Reports 1982, ai p. 417.)

He added that the "business of this Court to interpret" implies a duty to reach
a "conclusion as to what an alternative interpretation or application might have
been. Any other approach would beself-defeating ..." and that "the Court has
the choice either of refusing the procedure or. if it accepts it, oflrying to make
it work" (ibid.. at p. 416).
82. The Applicant respectfully subrnits that Tribunal Judgement No. 333
violates the letter of a number of Charter orovisions. and is inconsistent with
the spirit of the Charter as a whole; and prays that thecourt render an advisory
opinion as to what an alternative application might have been.

(ii) The Charter provisions aI issue

83. The Anolicant. in hisreauest for reviewof the administrative decision not
to offer him'further knploymént, raised explicitly two Charter principles: the
orinci~le of merit (Art. 101.3 reflected in Staff Reaulations 4.2 and 4.4). and
ihe pr;nciplc of ne;trality (Art. 100. which invol\e;alro Ari. 2.3. and which is
reflected in moi! of the Kegulations in Art. Iof ihe Staff Kulç~).Lnakking io
be trcaicd Iike "most staff memhers" he rüiscd implicitlj the principlc of non-
d~s~ ~mination or~eou~~i~.~ . .amble. Art. 1.2 and 113. ~rt. ~. and Staff
Regulation 4.3). In seeking compliance with General Assembly resolution
37/126.1V. pa.aara.h 5. he raised implicitly Articles 101.1and 97. the admini-
strative principles of the Charter, reflected in numerous Regulations and Rules.
In seeking a career appointment, he raised the whole career concept which lies
ai the heart of Article XV of the Charter.

84. TheCourt, the Ceneral Assembly, and theTribunal itself have al1stated
in the clearest possible terms that the Charter is one of the sources of law the
Tribunal must apply. Thus, for example, the majority opinion in Morlished
placed the Charter above al1other legal norms: "lt is true that the regulations
and rules applied by the Administrative Tribunal must derive their validity from
the provisions of the Charter" (I.C.J. Reports 1982.at p. 358).Judge Morozov.
in dissent, wrote: STATEMENT OF THE SECRETARY-GENERAI. 133

"lnstead of being guided by the resolutions of the General Assembly,
and by its own Statute as adopted by the General Assembly, and by the
provisions of the Charter, whichultimately is the only source of lawfor
the Tribunal ..." (Emphasis in the original.) (I.C.J. Reports 1982, at
P. 444.)

The fact that the General Assembly, framing Article II of the Tribunal's
Statute. regarded errors of law relating to the provisions of the Charter as

ground for challenge to the International Court (but not errors of law relating
to the Staff Regulations or its own resolutions), is evidence that the Assembly
re-arded the Charter as the dominant source.
85. The Applicant submits that a failure to reconcile its conclusions with
orinciples of the Charter constitutes no lessof an error of lawthan an erroneous
interiretation of a Charter provision

(iii)In regard ta the principle of merit

86. In Judgement No. 333, only the dissenting opinion refers to the principle
of merit. finding the rnajority's conclusions inconsistent with the Secretary-
~eneral's obliga-tions under Article 101.3. The majority opinion makes no

reference whatever to the Applicant's strong claim for consideration by virtue
of his excellence. attested to in his performance reports under different super-
visors in two tours of duty in the Ïanguage servici. and under the ioially dif-
fereni demands of his substantivc dcparrmcnt. DIESA. Yrt the Court, in 1954,
found the safeauarding of the principle of merit io be one of thc main raisons
d'être of the fribunal-

". .. the Court finds that the power to establish a Tribunal, Io do justice
ashetween theOreaniration an-dthe staff members. wasessential to ensure
-. .-~~~ ~
ihe efficieni work;ng of ihe Sccreiariat, and io giveeffect io theparamount
consideration of securing the highcsi standards of efficiency, compeience
and integrity. Capacity 1; do thiiarises by necessaryintendment out of the
Charter." (I.C.J. Reports 1954, at p. 57.)

Similarlv. in 1956.the Court interoreted the iurisdiction of the IL0 Tribunal
in cornplaints alleging non-observance of the térmsof appointment of officials
and of provisions of the Staff Regulations:

"ln so doing the Court has relied on the working of the texts in question

aswellason their spirit. namely, the purpose for which they were adopted.
T~~ ~ ~e~~~erw~s~i~ ensure the ~reaniiation the services of a personnel
possessing the necessary qualifications of competence and integrity and
effectivelv orotected by .pp..pri.te guarantees . .." (I.C.J. Reports 1956,
at p. 9a.j '

87. The Tribunal had iuelf, only a year previous to Judgement No. 333,
forcefully upheld the principle of merit against the demand-frequently asserted
in the General Assembly-for more equitable geographical distribution. In

Judgement No. 310, Estobial, the Tribunal found the Respondent Io be acting
under an error of law when he limited candidatures for a vacant post to
nationals of French-speaking African States:

"In so doing, he believed he was applying correctly the last sentence of
Article 101, paragraph 3, of the United Nations Charter, which provides
that:134 APPLICATION FOR REVIEW

'Due regard shall be paid to the importance of recruiting the staffon
as wide a geographical basis as possible',
a provision which'is reiterated in Staff Regulation 4.2. The Tribunal
attaches verygreat importance to these provisions. But whilethey allow the
Secretary-General to invite candidatures in order to implement them he
cannot refuse to consider the candidatures of United Nations staff
members for a vacant post. This is so because the Charter itself (first

sentence of Article 101, paragraph 3) provides that:
'The paramouiit consideration in the employment of the staff and in
the determination of ihe conditions of service rhall be the necessity of
securing the highest standards of efficiency, competence and integrity',

while Staff Regulation 4.2 (first sentence) provides that:
'The paramount consideration in the appointment, transfer or promo-
tion of the staff shall be the necessity for securing the highest standards
of efficiency, cornpetence and integrity.'

It was not for the Secretary-General to alter these conditions laid down by
the Charter and the Staff Reeulations by establishine as a 'oaramount'
sonsideration the search. houever lcgitimaie. for .as Gide a geographical
basis as possible'. rhereby eliminaiing the paramount consideration set by
the Charter in the interests of the service.. (J.deement No. 310.E.s/obiol.
at para. XIV.)

88. The majority opinion in the case at bar. and more especially, the concur-
ring statement, appears to raise as a new "paramount" consideration the Appli-
cant's refusal to oh,v ordersfrom his Government ree- -ine his~-~ited Nations
employment, and his consequent election "Io break his ties with hiscountry",
which. they consider. disabled him from consideration for a career appoint-
ment. ~esignation from government service. far from being a disabling-factor.
ir a normîl pre-requisitc to secking a carccr appointment. Sincc elçiciency and
competence are obviously not affected by a change of nationality or visa status,
can k he that the ma-orit.-rerarded this election as reflectine onthe..oolicant's
integrity?
89. Nothing in the Staff Rules precludes an election Io change nationality
Staff member do 50 withoui incurring opprobrium. The personnel Daia unit
rouiinely compiles an ",\nnen to Nationalii) Siarisiics: Changes uhich have
occurred in Staff in Ports Subieci IO Geoeraohical Distribution". in which
changes of nationality or visa-status appëar~as "Gain" or "Loss" in the

appropriate country quota. Some eight to ten changes are recorded each year.
A chanee of nationalitv in no way disaualifies a candidate from consideration
for a pist; indeed the standard PI1I PérsonalHistory form contains a separate
box for "Nationality(ies) a1 birth" and "Present Nationality(ies)", as well as
boxes for "Have you taken up legal permanent residence status in any country
other than that of your nationality?" and "Have you taken any legal steps
towards changing your present nationality?" A candidate who answers "Yes"
to thetwo latter auestionsisnot rendered inelirible therebv. Staff Members who
carry a passport 'other than that of their birth are not normally considered as
lacking in integrity, and to the extent that they often hring linguisticabilities and
multi-cultural~understandingto their work, may be thought of as desirable
employees in an international organization.
W. During their tenure, the measure of staff members' integrityrnust betheir
oath of office. When. during the 1950s,the Staff Rules were amended to allow STATEMENT Of THE SECRETARY-GENERAL 135

for termination when facts anterior to appointment, which would indicate lack
of int-ari... came to the notice of the Secretarv-Ceneral. the Tribunals narrowlv
construed this provision. In the series of cases concerning non-renewals b;
Unesco of fixed-term contracts, the IL0 Tribunal firmly rejected as self-evident
any suggestion that integrity was synonymous with national loyalty:

"Considering in relation hereto that it is necessary expressly to reject al1
uncertainty and confusion as to the meaning of the expression 'loyalty
towards a State' which is entirely different from the idea of 'integrity' as
embodied in the Staff Regulations and Rules; and that this is evident and
requires no further proof;" (ILOAT Judgment No. 17.In reDuberg, p.6.)

and :
"That it does no1 therefore appear that the complainant placed his own
interesls above thetrue interest of the Organization. which interest consists
above al1 in safeguarding erga omne~ its own independence and impar-
tiality." (Ibid., p. 10.)

91. In the present case, the majority aiid the concurring opinion rely on
lanauaae from Judaement No. 326 /Fischmon). which in turn relies on a 1956
~ucÏ~e~ent, ~huik;ni.. No. 66 . ~0th Khavkine and Fischmïn bmcd their
Tribunal appeals on the Univerial Declariition of Human Kights. under whose
provisions the United Nations. as an "organ oi society" falls, and both raired
questions aboui the Respondent's inierpreiation of the 1953 Fifth Commiiiçç

proceedings. whish are the source of ihe Ianguage quoted in Judgement No.
333.
92. Because of the decisive importance of Fischman in Judgement NO. 333,
if warrants closer examination. The8th Session of the Ceneral Assembly, where
the laneuaee auoted in Judaement No. 333. oaranraoh XII. and in Fischman.
was use:. ;as ati extremely sÏormy sorion wiih a nuiber of controversial issues
on the agenda. Thc o\erwhelminp bulk of the Fifth Commiitee's debate was
concerned with Secretarv-General ~ammarskiold's Reoort on Personnel Policv
(A/2533) dealing with political activities hy staff mem'bers; with the effects of
the United States Executive Orders of 1953 establishing an International
Oraanizations Emolov. . Lov.ltv Boar.: with amendments to Staff Recula-
lions 9.1 (a),1.4, 1.7, and 9.3 giving new ;rounds for termination; with revysion

of Article 9 of the Tribunal's Statute; and with the payment of indemnities Io
terminated staff ordered by the Tribunal. The United States Immigration and
Nationality Act of 24 December 1952, requiring a written waiver of al1rights,
privilezes. exemptions and immunities from an em~loyee o. a. international
organi;ation on permanent residence staius. was passed in the political cliniitie
of the period. lis effests on personnel policy riere discussed at one meeting. the
4191h. under great pressure of tirne.
93. The Report of the Advisory Committee, from which comes the phrase
that "a decision to remain on permanent residence in no way represented an
interest of the United Nations", dealt largely with tax reimbursement which at
that date would have constituted a burden on the budget of the Organization'.
There was also, at that time, concern over over-representation of the United

-
'Both Fischmanand, three decadesaga, Khavkine, appealedIo the Committee on
Applications for Reviewof AdministrativeTribunal Judgementr.but because of the
absenceof eitherrepresentationbycounselor records.anly thosepresentknowon what
grounds both applicationswererejected.
The introductionof the Tax EqualizationFund has rinceeared the burden.136 APPLICATION FOR REVlEW

States in the Secretariat. If the view, quoted in paragraph XII of the Judgement,
was widely shared. it was shared in private and not reflected in the debate. The
representative of Egypt said that:

"International official, \hould bc truc representatives of thz culture and
pcrsonality of the country of u hich they uere nîtionals and that those who
elected to break their ties with that countrv could no longer claim Io fulfil
the conditions governing employment in théUnited ~ations." (GAOR, 8th
session. A/C.S/SR.419, at p. 274.)
He also spoke of geographical distribution and objected to tax reimbursement.

The lndian renresentative "suooorted the remarks of the Eevotian delenate".
but whether héreferred to "ciliure and personality" or geog;aphical distribu:
tion in general is not clear. All the other speakers were concerned about tax
reimbursement, about the principle of equaliiy among staff members and equity
among member States in financial matters, and about the country quota to
which permanent residents should be assigned. A Czechoslovak proposal that
oermanent residents be excluded from their countrv's auota and included in the
United States quota was rejected. A Lebanese proiosaithat they be "considered
as being in a special category" was adopted. Neither the Czechoslovak nor the
~ebanese proposais wereconsistent with the view that those who opted for per-
manent residence "could no longer claim to fulfil the conditions governing
employment in the United Nations". The will of the General Assernbly, to the
extent that it was reflected by the debate or the vote, simply does not sustain
the proposition that the Tribunal, in paragraph XII, held "to provide an essen-

tial guidance in this matter".
94. An Information Circular. bearina hallmarks of hastv oreoaration. con-
veyed a summary of these deliberationcto the staff. ST/AFS/SER.A/~~~, of
19January 1954, entitled"Visa SlorusojNon-United StatesSlajjMembers Ser-
vingin the UniredSloles", records the language of the Egyptian delegate about
culture and personality; but also the Special Category. Far from forbidding a
change of visa status, the Circular said:

"Requests for permission to sign the waiver of privileges and immunities
in order to chan-e from non-immierant to oermanent residence status will
be considered individually, with attention given as to how such a change
may ultimately affect the principle of geographic distribution'." (Doc. 15.)
No AdministrativeInstruction was issued al the time. TheStaff Renulations and

Rules continued to reflect-and still continue-the procedure Tor changing
residence status. requiring, under Rule 104.4 (cl,notification to the Secretary-
General "before the~changein residence status or in nationality becomes final".
95. On 16August 1982, before the Tribunal considered the Fischman appli-
cation, the 1954 Information Circular on Visa Status was superseded and
cancelled by a new Administrative Instruction, ST/A1/294. The new instruction
omitted mention of the Special Category'. It omitted entirely the view of the

' Lanxuaee service msis are s~eciallv exduded from eeoemnhical distribution.
fischm&. Glike ~hlivkinr. uai in3 lan&age servicepo,i
' The 1984Rcpori of ihe Se:rctary.Gencralon ihc Comporiiion of thç Sçcretariai
tA/3Y1453J. huucrcr. coniinucs 10 rcfle:tinTablc 12.3 SncciîlCaira.rr..and mention,
in paragraph 4 that:

"Excludedfrom geographicaldistribution are: . . staff who havepermanent
residentstatus in, buto1the nationalityof the countryof theirduty station. . ." STATEMENT OF THE SECRETARY-GENERAL 137

Egyptian representative quoted by the Tribunal (para. 93. supra). It also
restored the original lanauaae from the Fifth Committee and ACABQ Report

that was misquoted in sëveral respects in the 1954 Information ~ircular.- or
example, the Fifth Committee had in 1954endorsed the ACABQ view that a
decision to "remain on" permanent residence status in no way represented an
interest of the United Nations (clearly referring to the existing situation). The
1954Circular had added "or acquire" permanent residence, giving prospective
effect to the stricture.ath the auotations in Tribunal Judne-ent No. 333 are
from the earlier, superseded, ciicular.
96. The 1982Administrative Instruction, in force at the time Mr. Yakimetz
made his decision, provides in paragraph 20:
"Exceptions to the policy that internationally recruited staff members
must apply for G-4 visa status and give up their permanent resident or
other visa status in the United States on appointment inay be made in cases
of:. . .

(b) newly-appointed staff members who have applied for citizenship
by naturalization, when such citizenship will be granted immi-
nently; ..."

The Respondent may well have had this provision in mind when he advised the
Aoolicant. in March 1983. 10 seek naturalization. The onlv wav to do this
qiickly was through the complex and arduous process of a prjvatibill. in both
Houses of Congress and their Judiciary Committees, to waive the statutory
waitine oeriod. ~his was the course on which the Aoolic..t's United States
~iiorle;. hlr. Or\ille Schell. embarked '
97. Paragraph 23 of the 1982 Administrïtii,c Insiruciion(Sî/Al,294) giies
the reason bhy staff are required ta sign the waiver of privileges and immu-
nities:

"23. The signing of the waiver bystaff members who are already in per-
manent resident status or acquired it alter entry on duty places them in a
position of parity with the staff of United States nationality with respect
to their United Nations status . . ."
Thus the strictures about permanent residence status are placed in a context, not
of exclusion from consideration. but of eaual treatment of staff.
98. The 1982Instruction specifically discarded the language about "culture
and personality" and the statement that those who "elected to break ties .. .
could no longer claim to fulfil the conditions governina emnlovment in the
United ~atiois". These viewsdid not prevail in the ~ifthComkikee. They are
inconsistent with Articles 15(2) and 13of the Universal Declaration of Human
Riehts and with the human riehts orovisions of the Charter. which refer to
"people" rather than citizens or nationals. and speak of "the dignity and worth
of the human person". They imply a cultural test for nationality. which comes
daneerouslv close to a oolitical criterion: which is unrealistic in the manv coun-

triecwhichhave multiple cultures and which would be impossible to administer
in practice. And, they are manifestly inconsistent with Article 101.3 of the
charter, in which "the necessityof securing the highest standards of efficiency,
competence and integrity" is couched in imperative terms, while recruitment on
"as wide a geographic basis as possible" is in relative terms

' The Applicant war grantedUnitedStatescitizenshiponly on 16January 1985.138 APPLICATION FOR REV~EW

99. Therefore the Applicant respectfully submits that the Judgement fails to
takeinto account the orinci~le of merit. and raises suas~onle obstacles inconsis-
tent with that principie; obitacles whoie legal foundation is tenuous and whose

application, in this context, is arbitrary and prejudicial.

(iv) In regard Io the principle of neulralily

100. Many of the delegations a1 the Preparatory Commission had before

them a memorandum by C. Wilfred Jenks, based primarily on his IL0
experience, which said :

"... Exoerience has shown that the effectiveness of international sec-
retariats depends largely on the extent to which they are genuinely interna-
tional in character and consist of persons whose sole allegiance is tu the
international organization which they serve. There is a clear cul functional
incomoatibilitv between the international duties of the officials of such
~, -~~ ~ ~ ~ ~
secretariats and the responsihility for upholding the national intcre5t\ and
~oliciesof the counirics of which they are nationals, and ii is debirable that
;hi, incompatibility of function should be cxplicitly recognizcd by definite
rules which are binding on ofricials and go\crnment$ alike. A recognition

of the im~ortance of the matter born of a decade of exoerience led the
~sscmbly~of the League of Nations io rcquirc al1League officials io maks
a ,olemn declararionthat they uould discharge their functions and rcgulaie
their conduct with the interests of the Leaaue alone in view. and would not
seck, or receivc in,tructions rrom any government or other auihority cxrcr-

na1 IO the League. I.eague cxperience rhowsd ihese arrangcmcnts tu be
seriously dcfectivc in that under ihem the obligation of official, to exercisc
the functions entrustcd to thcm wiih ihe inierests of the League alone in
\,iew was no1 oîrallclcd by an. .orresoondinp. explic-. obligation of thc
governments concerned not to seek 1; influence their naconals in the

discharge of international duties. In the case of some of the organizations
now being created the matter has been dealt with in a more satisfactory
manner b; including in their constiiucni instruments prorisions on the jub-
ject whish will be binding on officials and poternments alike. Important
as this princi~le is in the case of the s~ecialized United Nations oraaniza-

lions for whiih it has already been adopte*, it is still more vital in the case
of the proposed general organization." (C. Wilfred Jenks. Some Com-
menrs on the Dumbarlon Oaks Proposais, para. 19.)

101. Few Charter principles are as jealously guarded as the principle of
neutrality. In the case of the Secretary-General and the staff, the obligations
imposed by Article 100.1 are backed by their oaths of office and by Article 105.

In the case of member States. Article 100.2 is reinforced by their undertaking
under Article 2.2 to "fulfil in good faith the obligations assumed by them in
accordance with the present Charter".
102. A laree numbe~ ~ ~ ~~~ ~ational instruments and aereements. as well as
the Siaff Regulations. afford spcciric protections IO staflkembcrs in ordcr io

give substance IO ihe principle of neuirality. Thus under scction 18(a) of Ariicle
V of the Convention ~ ~ ~~~Privileees and-Immuniiie, or the United Nations
staff members have functional immunity "from legal process in respect of words
s~oken or written and al1 acts oerformed by them in their official capacity".
This immunitv extends to offiCial duties in the countrv of which Lhev are
. ~~~~~~~-~ ~ ~ ~ ,
nationals. Section 18(b) exempts staff members from national taxation on the
salaries and emoluments paid to them by the United Nations. This provision is STATEMENT OF THE SECRETARY-CENEML 139

intended. at least in Dart, to insulate officiais from national pressures which
might beapplied thriugh their pockets. Staff members are exempt, under sec-
tion 18 (c) of Article V of the Convention from national service obligations in

their own or other countries, in the interest of freedom "from interference by
national a~t~o~i~i~s~a~ -~~~~~d~.~ -o,.erform their duties". Staff members are
enjoined, under Staff Regulation 1.6, from accepting any honour, decoration,
favour, gift or remuneration from any government, and under Regulation 1.7
from engaging in any political activity, other than the right to vote, "which is

inconsistent with or might reflect upon the independence and impartiality
required by their status as international civil servants". Staff members travel,
not on their national pa>sports, but on a United Nations laissez-passer which
makes no mention of the nationality of the holder.

103. Staff members may not rely, in matters relating to their employment, on
the protection of their national laws (UNAT Judgement No. 67, Harris. ILOAT
Judgment No. 28, Waghorn, inler alia)and the Secretary-General is not bound
by action taken by national authorities (UNAT Judgements No. 62, Julhiard
and No. 72, Radspieler; ILOAT Judgments No. 13. Mclnlire, No. 47, Giuf-

frida, No. 122, Chadsey, inter alia). The salaries and pensions of United
Nations oflicials are immune from attachment by national courts (United
Nations Juridical Yearbook, 1980, at p. 200, also UNAT Judgement No. 245,
Shamsee, inter alia).
104. In accepting a United Nations position, a person loses many of the

attributes as well as the protection of national citizenship and becornes an agent
of the Organization.

"ln order that the agent may perform bis duties satisfactorily he mus1
feel that this protection is assured him by the Organization, and that he
may count on it. To ensure the independence of an agent, and conse-
auentlv. the independent action of the Organization itself, it is essential
chat inperforming his duties he need not have to rely on any other protec-

tion 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 com-
promised, 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 weak State; to one more affected or less affected by the complications
of international life; to one in sympathy with 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 al1the
more necessary when the agent is stateless." (Reparufion for I~juries Suf-
fered in the Service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, at pp. 183-184.)

105. "In the total absence of any tradition of impartiality". Akehurst points
out.

"~.-~~~~ ~ ~ ~ ~ ~~~ take the full strain of orotectine this orinci~le. More-
over, an international civil servant is in a huch more vuinerabie position
than his national colleague, and therefore requires more extensive legal

protection."
The greater vulnçrability cornes from the absence of any means of recourse

outside the international system: not to public opinion. not to an elecied Parlia-
mcni. no1 to municipal couri$. Staff Associations remain rclaiivcly powerless.140 APPLICATION FOR REV~EW

The specialized nature of international work, and the interruption of profes-
sional contacts in home countries, make it hard to find another job.
"If an officia1is not euaranteed sufficient orotection b- ,aw. he will be
tempted to try Io enlist Ïhe support of his nat;onal government orof other
member States-and this willhave disastrous results on his impartiality, as
well as exposing the whole Secretariat to the most undesirable pressures."
(M. B. Akehurst, The Law Governing Employment in Internalionol
Orgonizalions, pp. 4-10.)

106. The risks to the principle of neutrality inherent in secondment wereevi-
dent to the Preparatory Commission, which observed that

"members of the staff [cannot] be expected fully to subordinatethe special
interest of their countries to the international interest if they are merely
detached temporarily from national administrations and remain dependent
upon them for their future" (UN Preparatory Commission: doc. PC 20,
at 92).

The llth Session of the General Assemblv. f.c.d with a demand for ereater-
representation on the Secretariat from countries which preferred not to put for-
ward their nationals for career aooointments. raised the oossibilitv of a conflict
of logalties. The ~ecretary-~eneral reassured [hem thai'experience had shown
thai no serious problem of disided lo).altiesneed arise. and. indeed. "the condi-
tions of the Charter and the oath of office ncre sale-uards in this" IGAOR.
Ilth Scs\ion Annexes. doc. A/355R. para. 126).
107. Secrelary-General Hammarskjold, in his 1961Oxford address. said:

"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 oraanization, is evidentlv in a different
position psychologicallg-and onc might say, politically-f;om the perma.
nent internaiional civil servant who docs not conicmplate a subsequent
career with his national rovernment." (D~P.Hammarskiold. The Inrernu-
lional Civil Servant inLÜW and in Fort, cirendon preis, 1961,at p. 18.)

Hammarskjald believed that a certain "critical mass" of secondments could
threaten the functioning of the entire Organization.
"To have so lar-. a orooortion lone-thirdl of the Secretariat staff in the
seconded category wouldbe likel; to impose serious strains on ifs ability
to function as a body dedicated exclusivelyIo international responsibilities.
Esoeciallv if there were anv doubts as to the orincioles rulin; their work
in ihe minds of the governhents on which their futire might>epend, this

might result in a radical departure from the basic concepts of the Charter
and the destruction of the international civil servi& as it has been
developed in the League and up to now in the United Nations." (Ibid., at
p. 19.)
In addition to the effect on seconded officials themselves, there is a danger of
infection, as Schermers has pointed out,

"when the officials of some nationalities are dependent oti their govern-
ments while others are not. lnequalitv damage- the harmonious function-
ing of ihc Sccretariat. In addition, ihc (sometimcs erroncous) impression
that some officials are dependeni on their govcrnments may encourage STATEMENT OF THE SECRETARY-GENERAL 141

others to establish closer contacts with their governments in order IOoffset
this presumed advantage"'.
Secondments were sanctioned by the General Assembly to benefit the Organiza-

tion-Io provide special skills required for limited periods, to improve
geographical representation-and only incidentally for the benefit of member
States. They were never intended as a device for blacklisting former staff
members or giving Sfafes a righf IO veto appoinfments. The necessity IO construe
strictly the limits of a government involvement arises not only from the interests
of the Organization, no1 only from the legally protected rights of officials, but
also from Article 100of the Charter. An official who comes in with the consent
of a government may no1 expect, nor may the Organization bestow, special

treatment. Still less may the Tribunal suggest that special treatment would be
rr~7~~.
108. Tribunal Judgement 333 failed Io find impropriety in a staff member
being barred from entering Headquarters in order to avoid offence ta a member
State. The Judgement finds no impropriety in a member State "contemplating
replacing the Applicant by another person whom they had already selected", or
"sueeestine to him that he should leave for Moscow" soon after he had under-
-- -
taken programme duties under a new contract, thus sanctioning a higher
allegiance to his country than to the United Nations. The Judgement finds no
inconsistencv with Article 100-and indeed endorses-Mr. ~eere's statement
that no furiher emplosmznt could be contemplatcd .'without the involvemrnt
of al1 the parries origirially coriccrned". alrhough any turther sc:ondmenr wds
clearly out of the question. In the statements of Mr. de Olivares, Mr. Sills and
Mr. Ruedas, the Judgement sees no illegal delegation of the power of appoint-
ment. "The Applicant was entitled IO act in any way he considered besf in his

interest. but he mus1 necessarilv face the conseauences of his actions". said.th~ ~~
majority Judgeincnt, iailing IO note thai hc uas under an obligation io act t'or
the duraiion of hi5coniract in thc interrrts oi the United Nations and not in the
interests of his Government, and that, in difficult circumstances, he upheld that
obligation.
109. Thereforethe Applicant respectfully submits that the Judgement fails to
aoolv the orinciole of neutralitv. and reaches conclusions inconsistent with the~ ~~~
.. . ..
principle; denying Io the Applicant the assurance, required by the Court. that
he may count on the protection of the Organization in the independent verfor-
mance of his duties.

(v) In regard IO theprinciple of equolip

110. The Charter, unlike the Covenant of the League. gives explicit expres-
sion to the ~rinciole of esualitv. The Preamble invokes the eaual riehts of men
. .
and womenand 8f nations large and small. Articles 1.2 and i.3dezare respect
for the principle of equality Io be one of the Purposes of the United Nations;
second onlv to the vrevention of war. Article 2.1 a. .ies the vrinciole of
sovereign ebuality 10-al1member States; Article 8 brings the pri"ciple ;O the
infernal governance of the Organization. lndirectly the Charter gives wider
a..lication to the concent. ~rticle 13 (1) Ibl emD.wers the General Assemblv ~ ~ ~ ~ ~
10 initiale studic~ and makc rccommcndations for "asri5iing in the rçalization
of human righis". Article 55 /c)sayr ihc Uniicd Nation, ?hall promilte: "univer-

' H. Ci.Schermers, InrernorionollnsrirurionolLow, Sijthoff, 1980.a1 p.477. See also,
H. Herzog. Doppelle Loyolilül. Dunker a Humblot. 1975.142 APPLICATION FOR REV~EW

sa1respect for an.observance of. .. human rights and fundamental freedoms
for al1without distinction as to race. sex. laneuaee or relieion". Articles 62 (2)
and 68charge the Economic and social couniil $th respo~sibilitiesin the fièld
of human rights. Article 76 (c) defines as one of the basic objectives of the
trusteeship system "IO encourage respect for human rights".
111. The Charter speaks for, and IO, people as individuals rather than
citizens or nationals. The Charter begins: "We, the peoples . . ."and refers Io
"men and women" and "the dianitv and worth of the human oerson".
Similarly. the Universal ~eclaration oi Human Rights. the substantivéariiclcs

of the International Covenants on Economic. Social and Cultural Rights and on
Civil and Political Ri-.ts. and most other international instruments of a-neral
application, refer to the equal rights of "al1 people", "al1 nations", "al1
individuals", "al1 persons" and "all human beings". Article 101.3 speaks of
recruiting staff, not by nationality. but "on as wide a geographical basis as
possible".
112. If the United Nations is Io promote equal rights,
"it is obviously bound to proclaim and practice the same principles within
its interna1 legal system: no1 only to avoid but to bar al1 types of dis-
crimination among those serving this Organization" (I.C.J.Reports 1982,
diss. op. Lachs, at p. 419).

It would be an error of law to give "a more privileged position to some and [to
place] others on a disadvantageous level". It would be an error of law in terms
of Article 8 if restrictions were placed on the eligibility of some to participate
in any capacity and under conditions of equality in any organ of the United
Nations. It would be an error of law in terms of Article 2.1 if any member State
demanded, or received, special or differential treatment of its nationals. The
principle of equality is implicit in, and closely intertwined with, the principles
of merit and neutrality.
113. In a 1969 Legal Opinion, the Legal Counsel responded to a question
fromthe General Counsel. International Bank for Reconstruction and Develoo-
ment, whether the Secretaiy-General couldagree to a request by a member tat te
that its nationals be ao~ointed only on a temporary basis and with the prior
approval of the gover"kental authorities:

"The Secretary-General could not, in myopinion, agree IO limit appoint-
ments of nationals of the member State concerned to fixed-term a..oint-
mcnts and thus excludc thcm dsa group from other types of appointment\.
includinr! career aooointmcnts. provided for in the Staff Reeulations and
Rules. Nor would-ii be proper for him to condition appointment of such
nationals on their Government's approval.
This does not oreclude consultations with the Government about
appointments or Ïhe consideration of Government views. The United
Nations has in the pas1 for example recognized the need, particularly of
develooine countries. to retain within their countrv or their novernment
servicesscarce technical and professional personnel; consideration of such
interests when exercisingappointment power is entirely consistent with the
Charter. Similarlv. the Secretarv-General mav take into account. when
considering appointmcnts. information from govcrnments relating to
suitability. Receipiof such information may assist him in sccuring the stan-
dards ofefficiencv. comoetence and inteeritv referred to in the Charter.
We have, however; had'occasion to reject iequests that the Secretary-
General undertake as an obligation to consult a government on appoint- STATEMENT OF THE SECRETARY-GENERAI. 143

ments, although governments receiving assistance are by some UNDP

Agreements entitled to be consulted on technical assistance expertsto be
assigned to projects within the country." (Juridical Yearbook, 1969, at
p. 228.)
114. United Nations practice appears to diverge markedly from the views

exnressed in this Oninion. The 1984 Reoort of the Secretarv-General on the
~&~osition of thé Secretariat (GAOR., 39th Session, A/j9/453) shows in
Table 10the percentageof staff on fixed-term appointments by country and by
region. Only one region, Eastern Europe, has virtually al1staff on fixed-term.
(Of the Eastern European countries. 73.7 percent of Yugoslav nationals are on
fixed-term: 84.6 Dercent of Bulaarian nationals, and the rest have LOOper cent

on fixed-tc;m. exiept for AlbanL with no nationals on the staff.) The ~cople's
Republic of China. alpo Socialist, doesnot resirict its nationals to fixed-termor
secondment contracts. The onlv countries in other regions with 100Dercent of
their national, on fixed-term appointments ha\e only one national on the staff.
IlS. Normally. according to General Assemblg rcrolution 35/210, paragraph
1(.).."no nost should be considered the exclusive preserveof any member State
or group o'fStates", but paragraph 1(4) permits "replacement by candidates of
the same nationality ... in respect of posts held by staff members on fixed-

~ ~ ~ ~~~~~~~~~~-... to ensure that the reoresentation of member States whose
national~ serve primarily on fixed-term contracts is not adversely affected".
This exception. according to the figures above, is for the benefit of the Eastern
~urooean countries onl-i
116. The Tribunal io ~ud~ementNo. 192, Levcik. recognized ihat "almosi
never isan ao~licîtion from an Eastern Europcan receiveddirectlv". but rather
throueh the national missions of their eovernments '.The Russian langu.ges-r-
- -
vice is the only exception to the system of world-wide cornpetitive language
examinations. al1 candidates cominp, through a single institution in Moscow.
T~e.11.0 ~r~ ~--l in Judeme-l ~0.431. lnre Roseicu. heard testimonv about
the requiremrni of certain Eastern ~uropean countries ;ha[ their natiokls turn
o\er part of their emoluments to their go$,crnmznts '.(Seealso T. Meron. 167
Recueil des cours 289 (1980-XI): and A. Pellet. 106J. Droir inrernorional 570
(1979).)

117. No State can evade its Charter obligations by claiming that different
social realities entitle it to exceptional treatment. The IL0 Committee of
Exoerts on the A~plication of Conventions and Recommendations has con-
sisiently rejected aiguments that a different approach to the application of
labour conventions could be followed in the Socialist States.TheCommittee felt
that ils duty was

"to examine .. .from a legal pointof view, to what extent countries which
have ratified Conventions give effect intheir legislation and practice to the

'TheRepresentative of Czechoslovakiato theCammittee an Applications for Review
of Administrative Tribunal Judgemcnts,in the public meetingof that Committeeon
28August 1984,dislinguishedbetweenthe Secretary-General'o sbligationunderArticle
IW (Il of the Charter. and "the leaitirnateriaht of any governmentto conveyto the
, . - - ~.
Secretary-Genera itlr viewsanmattersrelatingto irr interes. . Thesemattersnaturally
includequestionsrelatedta theemploymentof nationalsof memberStateswhetherorno1
a staff memberor anaoolicantfor em~lovmenthaschosento severrelationswith his
government."(A/AC.~~;XXIV/P.V.~,'~~ P. 14.)
CertainothergovernmentssupplementtheUnited Nationssalariesof their nationals.
The Staff Union ison record as opposingboth practices. STATEMENT OF THE SECRETARY-OENERM 145

"there was no contractual or otherwise legally based prohibition on the
Secretary-General,either to grant or withhold another appointment" (para. 23).
He accepted, indirectly, that the Applicant had a legal claim to "every
reasonable consideration for a career appointment". The Respondent's argu-
ment ultimately rested on the discretionary powers of the Secretary-General, in
the exercise of his authority and responsibility under the Charter. He claimed,

in paragraph 25, that "the decision . . .was legitimately motivated by the
Secretary-General's perception of the interests of the Organization to which he
properly gave precedenceover competing issues" (doc. 21).
122. In his Comments on the Applicant's written statement before the Com-
mittee on Applications for Review of Administrative Tribunal Judgements the
Respondent argued that

"The Tribunal did no1 ignore General Assembly resolution 37/126 but
in fact appliedil and concluded that the Secretary-General properly exer-
cised his discretion Io consider the Applicant for a career appointment."

(Para. 7.)
"The Tribunal held that the Secretary-General had the sole authority to
decide whether the Aoolicant should be eranted a career a~oointment
(emphasis added) and; alter examining ai the circumstance; which the

Secretary-General had taken into account, concluded that the Secretary-
~eneralpro~erly exercisedhis discretion when he personally decided in the
interest of the Organization no1to offer the Applicant a further appoint-
ment." (Para. 12, doc. 4.)

123. What the Tribunal actually said was:

"In the oresent case. the Resoondent had sole authoritv to decide what
constitutei 'reasonabléconside;ation2 and whether the ~iplicant could be
given a probationary appointment. He apparently decided. in the back-
eround of secondment of the Aoolicant durine the oeriod of one vear from
27 December 1982to 26 ~ecember 1983, th; the~pplicant coild not be

given a probationary appointment. He thus exercised his discretion pro-
perly, but he should have stated explicitly before 26 December 1983that
he had given 'every reasonable consideration'." (Emphasis added.)

The concurring statement found no need even to exercise any discretionary
powers, since the Applicant was exempt from the provisions of resolution
37/126 and "not eligible for consideration for a career appointment".
124. What the Judeement annears to be savine is that onlv in the caseof a
pruhationary appointmeni need 3 .andidate bc'recrrcd io the ~ppointmcnt and

Promotion machincry for consideration. For any oiher iypr of appointmeni ihc
Secretary-General has sole authority to employ whatever method of considera-
tion he chooses. In this case.he choseto give consideration himself, but "in the
background of secondment" of his final one-year contract, decided he "could
noi be given a probationary appointmeni". Ha\,ing dc~.idedearlicr (para XIII)
ihat the background of secondmeni rcquired the "con5cni of ihree parties" for

any modification. the Tribunal is no1clcar whai criteria the Secreiary-Gcneral
could habc used for this consideraiion chccpi 10 note, in parapraph XIX. that
hc took inio acsouni "rcpresenintion\ io divcrrc cffcct by the permanent mi\-
sions of two member States". Nowhere does the Judaeme-t indicate that in its
vieu,sthe Sccreiary-Cicncral did in faci-astlic Kcrpondcnt claimcd in his siaic-
nients-givc "ionsidcraiion io al1 ihe circum%tancerin the sase. including the
Applicant's service record, together with the estimation of his supervisors..".146 APPLICATION FOR REnEW

lndeed if he could not be piten a probationary appointmeni. consideraiion of
his service record and the estimation of his supervisors would bc entirely point
less. The concurrine statement is auite clear on this ooint.
125. The ~ecretar\.-Cieneral's poùçrs oi appointment are limited. under Arti-
cle 101 (1)of the Charter. by the obligation to carry out the "rcgulations estab-
lished bv the General Al~cmblv". TheCourt in Morrished held that the Gencral
~s5embi). has the pouer itself ;O make detailed rcgulations. leai,ing, romeiime\,

to the Secretary-General "a measure of discretion" in the actual drafting (I.C.J.
Reo.~rs~1982~,. o. 3591. Where the Gencral Asxmb-~~~~~~,do,~ a orincid. ~. itis
left to the Secretary-General to give effect to it, first, by an administrative
instruction, and eventually in a new version of the Staff Rules.
126. The General Assembly. having established in resolution 37/126. IV.5,
a regulation in the clearest possible terms, the Secretary-General's discretion
under this analysis extended to drafting an administrative instruction or rule to
eive effect to it. but notto carvina out exceotions to it. He mav retain a discre-
fionary veto on who should be granted a pkobationary or careir appointment,
but not on who couldbe given every reasonable consideration, since the General
Assembly had imposed no restrictions on eligibility.
127. Moreover, once the General Assembly has established a regulation. it
becomes part of the terms and conditions of the Applicant's contract, even

thoueh not vet incoroorated in the Staff Rules (UNAT Judeement No. 249.
.Srniri). ~he.discretiinary powers of the ~e&&ry-~eneral do not extend ti
unilateral amendment of a staff member's conditions of service. Both the
United Nations and the IL0 Tribunals have in the past recognized these limits
and set aside discretionary decisions if tainted by an error of law or based upon
materiallv incorrect facts. or if essential material elements have been left out of
account. or if obviously wrong conclusions have been drawn from the evidence.
The Court, in Fasla, saw this as a fundamental part of the Tribunal's role:

". . the jurisdiction developed by this judicial organ constitute(s) a system
of judicial safeguards which protects officiais of the United Nations
against wrongful action of the administration, including such exercise of
discretionary powers as may have been determined by improper motives,
in violation of the rights or legitimate expectations of the staff member"
(I.C.J. Reports 1973, at p. 205).

128. Discretionary power may be defined as "the situation in which the
Administration is free to act or not to act, accordina to its own sense of .olic.;
it is authorized, but not obliged to act. and has afree choice in the matter"
(M. B. Akehurst, The Law Governing Employmen~ in Internalional Organim-
lions, at p. 115; also S. A. de Smith,Judicial Review of Adminislrorive Action,
at p. 171; M. Waline, Droil adminisfratif, at p. 449). Many municipal systems
provide a remedy for

"failure to exercise a discretion as a consequence of delegation of powers,
acting under dictation. fetterina a discretion bv self-created rules of.~oli.v,
bargaining away a discretion misconstruing the scope of the discretion
by reason of an error of law" (C. W. Jenks, The Proper Law of Inlerna-
lional Organizolions, at p. 100).

Both Enalish and French administrative law impose a duty to exercise a discre-
tion (de Smith. supra, at p. 187, and Waline, supra. at pi. 489-490.) Akehurst
describes the failure to exercise discretion as: "if the Administration is
empowered todo A or B and does A because it believes it is not ailowed,to do
B, . . ."(Akehurst, supra, at p. 131). STATEMENT OF THE SECRETARY-GENERAL 147

129. All the availahle contemporary evidence-Mr. Nègre's letter, the
statements of Mr. Sills. Mr. de Olivares and Mr. Ruedas-indicate, not a deci-
sion in the everciw (11his discretionary pouers that the Applicant should no1 be
offercd an appointment. but rather a failure tu exercise dlssretiondry pouer5 in
the sense described above: that he helieved he was not allowed to do so without
the consent of a government. The dissenting opinion in Judgement No. 333
examines a second self-imposed fetter on the Secretary-General's discretionary
powers-that of a supposed agreement "to limit the duration of [the Appli-
cant's] United Nations service". Vice-President Kean concludes that "il cannot
be helieved that the Respondent would ever have been a party Io so
unreasonahle an agreement".
130. The Se~.retary-(;eneral is described in Article 97 of the Charter as the
"chtef admini~trati\.e officer oi the Organization", a phrase not found in the

Covenant. Rzad topcther with Articles 100and 101it creates for the Secretariat
a position of full political and managerial independence. As shiefadministrari\,c
officer the Secreiary-General is bound to acr. ai al1limes. in the intere\th of the
Organization. Because theCharter envisages a continuing commitment to "suc-
ceeding generations", the chief administrative officer has an obligation Io put
the long-term interests of the Organization ahead of the short-term interests.
where they conflict.

"He may not forego taking a decision in the Organization's interests for
the sole ouroose of satisfvina a member State. The Oreanization has an
interest in h&ng on good térmswith al1memher States, b;t that is no valid
ground for a Director-General Io fall in with the wishes of every one of
them." (ILOAT, No. 431, In re Rosescu.)

The long-term interests of the Organization are served by upholding the prin-
cioles of the Charter and. where necessary. assertina them.
131. \Vhsrcfore the Applicant respec1f;ll) submii\ thar the Judgement failc
10 draw a line hetwecn the proper Iimits IOthe Secretary-General's di,cretionary
pouers. under Article 97, and his obligations under Article 101 (1) of the
Charter 10carry out the regulations established by the General Ashembly; per.
mitting. under an error of law. an unlawful delegaiion of his pouer of appoint-
ment in violation of the Applicant's rights

(vii) In regard !O Chapler XV
132. Chapter XV of theCharter reflects the decision, taken at San Francisco.
that the United Nations Secretariat should he an international and not an

intergovernmental body. Each of the Articles in Chapter XV implies, and rein-
forces, al1of the others. In his Report Io the Presidenr on the Results of theSan
Francisco Conference 26 June 1945 the United States Secretary of Stafe
explained :

"The intent of the proposais made at San Francisco was Io make it
perfectly clear that the nationals of memher States serving as the staff of
the Secretariat couldnot. in any sense of the word, he considered as agents
of their governments. It was also deemed important to provide that
memher States acceot an obligation Io refrain from seekine to influence the
Secretary-General or any member of the staff of the ~ecreïariat. These pro-
visions were considered essential lo assure that the Secretary-General and
the staff would constitute a truly inrernarional civil service.. .The pro-
posed Secretariat will be, ineffect, an internarional civil service. It will be148 APPLICATION FOR REVIEW

recruited on the hasis of competence, promoted on the basis of merit, and
selected with the due reference to linguistic and geographical considera-
tion." (Dept. of State, Publicolion No. 2349, at p. 150.)(Emphasis added.)

133. The concept of a career service iscentral to the notion of an indepen-
dent, competent, politically neutral international civil service responsible only
to the Secretary-General, who in turn is responsible to the General Assembly,
both subject to the Charter. The Preparatory Commission made explicit this
connection. In order to "serve the advantages of experience" and establish

"sound administrative traditions", the bulk of the staff should be career
officials. This was both in the interests o. aua.itv-withouassurance of career
prospects "many of the best candidates will inevitably be kept awayn-and
neutrality, since "members of the staff [cannot] he expected fullyto suhordinate
the snecial interest of their countries Ïo the international interest if they are
mereiy detached iemporarily from national adminisiration\ and remain depcn-
dent upon thcm for their future" (Heporr of lhc Prcpororor) Commrssionof rhe
~nired Nolions (1945), PU20 at 92).
134. Proposals hy Yugoslavia that the staff he "selected from nationals be-
longing Io Members of the United Nations", and that "the appointment of
officials of the Secretariat should be made with the consent of the member
government of which the candidate is a national". were rejected. A large
majority of delegations argued that the latter proposal would impinge on the
exclusive responsibilities of the Secretary-General under Article 101, would
threaten the freedom, independence and truly international character of the
Secretariat. and would defeat the soirit and the letter of Article LOO. ot only
were governmeni, not aluays qualified IO pronounce on a candidate but they
mighi he reluçtant to consent IO the appointmeni of a member of the political
oo..sition. Nothine-should be allowed tri "-ive national-novernments oarticular
rights in this respect, or permit political pressure on the Secretary-General"
(PC/AAB/66, at 51).
135. The Prenaratorv Commission envisaaed limited exceotions to oerrna-
nent career apiointments. The principal higher officers cohd be appointed
under iixed-term contracts not to exceed fiveyears. subject Io the possihility of
renewal. The Secretarv-General mus1be able to offer temoorarv aooointments
to spcrialisis in iechni!al fieldsas wellas perrons uith special poiitical qualifica-
tions Temporary appointments should be used to accommodate prrsons from
geographical regionsinadequately represented. And officials from national ser-
vices should be able to serve the Organization to strengthen personal contacts
between the Secretariat and national administrations and to build up a body of
national ofiicials with international çxperience. Such appointments,~n the opin-
ion oi the Preparatory Commission, should he for not longer than Iwo years
under a svstcm of secondment or leave uiihoui pay (PC/2O at 93).
136. ~he 1982 Report of the lnternationai civil Service Commission
(GAOR, 37th Session, Supplement No. 30 (A/37(30)) relied directly on these
convictions of the Preoaratorv Commission in its recommendations on the
career service which iere accepted by the General Assembly in resolution
37/126. The same principles have heen affirmed and reaffirmed throughout the
Organization's hisiory b; successiveSecretaries-General, by expert committees,
by representatives of the organizations in the common system, and represen-
tatives of the staff.
137. The oermissible orooortion of non-career to career staff has however

remained the subject of Gigorousdchate. At the IIth Session. the Report of the
Salary RcviewCornmittee. cstahlished hy General Assembly resolution 975 (X). STATEMENT OF THE SECRETARY-GENERAL 149

1955. whileendorsinr the concent of a career service. feltthat rreater use could

be made in the ~niied Nations ~ecretariat of "fixcd-term staff-obtained largely
by secondmcnt from government services, universilies and similar institution^"
to avoid "complacency and bureaucracy"

"11 has sometimes been argued that non-career staff cannot have the
same international loyalties or independence as career staff. The evidence
does not support this view. The Committee was impressed with the
assurances of the Secretary-General that seconded staff were in his
experience extremely zealous in avoiding any tendency toward divided
loyalties. [The Committeej could see no objection. either on financial or

personnel grounds. if the proportion to be filled on a fixed-term hasis,
whether by secondment or otherwise, were brought up to Say20 per cent
as opportunityoffered ..." (CAOR, IIth Session Annexes, Agenda ltem
51, doc. A/3209 at paras. 53 and 54.)

The figure of 20percent was approved hy the General Assembly by resolution
10~5~ ,~~-, ~ ~ ~bruaiv 1957.
138. The decade from the mid-1050sto the mid-1960s sawexplicit challenges
to the whole concept of a career service. At the 15th General Assembly, the
USSR advocated the equal representation on the Secretariat of three groups of
member States; the "Socialist" States, the "neutralist" States, and "States

members of Western military blocks". A corollary to this proposal was the
reduction or phasing out of career appointmentsand their replacement by fixed-
term or seconded staff. A Committee of Experts was appointed in 1959 by
General Assembly resolution 1446 (XIV) under the chairmanship of Mr. G.
Georges-Picot to review this and other problems of the organization of the
Secretariat. The Soviet expert on the Committee, Mr. A. A. Roschin (who
replaced Mr. A. A. Fomin) urged, as a matter of priority:

"(a) to put an end immediately to the practice of granting permanent
contracts to members of the Secretariat regardless of their nationa-
litv. .. that Dermanent contracts for Under-Secretaries and Direc-

to;s (0-2 levei)be eliminated entirely. that the number of permanent
contracts for staff members at the D-l level be reduced to not more
than 30 per cent of the total of such posts and that the number of
permanent contracts for staff members in the Professional category
be reduced to not more than 40 percent of the total number of posts
in that category" (GAOR, 16th Session. Annexes. Agenda ltem 61,
dnc. A/4776, para. 90).

He went on to propose a radical programme of terminations of existing staff.
1~ ~ T~ ~ ~ ~ ~ ~ of the Committee reiected this view and reaffirmed the
-.
Preparatory Commission's recommendations on a career service. To accom-
modate demands for greater geogr- - ~al distribution, however. it contem-
plated an increase in the proportion of fixed-term staff,

"to as much as 25 per cent by the end of 1962.The majority of the Com-
mittee does not regard this as an excessiveproportion. While it isconvinced
that the bulk of the staff should consist of versons who intend to make ser-
vice in the Secretariat a career and that the efficiency of the Secretariat is
dependent on the existence of a substantial core of career officiais,the
maioritv of the Committee arrees that a suitable vrovortion of officers on
fixéd-tek contracts serves a useful purpose i" iniroducing new blood

and new ideas. The majority of the Committee would not recommend the150 APPLICATION FOR REVlEW

adoption of the drastic action suggested by the Soviet expert." (Ibid., at
para. 92.)

140. In the Fifth Committee debate considering the Report of the Committee
of Experts,

"many delegations felt that it would not be wise to exceed the proportion
of 20 Der cent for fixed-term staff in relation to career staff . . .The
securit; of tenure inherent in a career appointment constituted a factor of
importance in ensuring the independence and the efficiency of Secretariat
officiais.. . Admittedly. a limited recruitment of fixed-term staff-for
example, on secondment from national services or analogous services-
served a useful purpose ... But to exceed 20 per cent would not be wise.
Short-term service with the United Nations. if carried much bevond that
point, might weaken the concept of the Secretariat as a truly international
body .. ." (GAOR, 16th Session, Annexes, Agenda ltem 64. doc.
A/5063.)

A resolution incorporating the 25 per cent limit failed to gain a majority.
141. At the 18thGeneral Assembly. Secretary-General U Thant ex~lained the
steady rise in the proportion of fixed-term staff by recruitment efforts in coun-
tries who could not spare candidates for career appointments. By converting
some fixed-term appointments IO career positions he expected to maintain the

orooortion at about 25 oer cent (GAOR. 18th Session. Annexes. Aeen.a ltem
66,'doc. A/C.5/987). '
By the 20th Session the proportion was 28.1 percent, and the Fifth Commit-
tee once aeain debated both the added exoense and the effect on efficiencv. con-
tinuity and experience of so high a propo;tion of non-career posts (GAOR; 20th
Session. Annexes. Agenda ltem 84. doc. A/6215).
By 1968, with the proportion ai 31 8 pcr icni. clo<c IO I in 3. ihe Secretar).
General warned the General Assembly ihat ihe continuing dccline in the relliti\e
strength of career staff had "reached a stage where it could no longer be
regarded as a development of limited significance" (GAOR, 23rd Session,
Annexes, Agenda ltem 81, al 14-15). In 1969the General Assembly, by resolu-
lion 2539 (XXIV). recoanized that "lone-term service is conducive to areater

efficiency in certain poits entailing coiplex duties and responsibiliti&". A
limited guideline was setout in 1970by resolution 2736 (XXV), which said, inrer
alia, that for posts "involving complex duties and responsibilities" preference
should be given to those willing to accept a career appointment or a fixed-term
appointment of not less than five years.
142. A table in the 1982 ICSC Report showed the rapid increase in the
percentage of fixed-term ta career staff: 34percent in 1975.36 percent in 1978.
39 per cent in 1981. It has now topped 40 per cent. 11 was against this
background, and specifically with reference to the recommendations of the
Preparatory Commission, that the ICSC made the proposal that was incor-
porated in General Assembly resolution 37/126, IV. The ICSC recognized the
difficulties,including that

"some member States do not wish their nationals to serve in international
organizations for more than limited terms; such staff usually serve on
secondment from their countrv's own career service" (GAOR. 37th Ses-
sion, Supplement No. 30 (~/i7/30), at p. 114).

Evidently, however, it concluded that at some point the percentage of fixed-
term appointments might reach the "critical mass" of with Hammarskjold had STATEMENT OF THE SECRETARY-OENERAL 151

warned, at which time the nature of the Secretariat would change froman inter-
national organization into something .ike an inter-governmental one, contrary
to the charter.
143. The other consideration, stronglyurged by FICSA and recommended by
ICSAB, the predecessor of the ICSC, was the basic inequity of having two
classes of staff, often doing jobs of similar responsibility, but with different
career expectancies, different benefits and different degrees of security.

144. In recommending every reasonahle consideration for a career appoint-
ment upon completion of five years of service, the Commission specifically
included seconded staff.
"With regard to staff on secondment, the majority of the members of
the Commission stressed the need for each organization, in situations

where it wished to retain the services of the staff memher heyond the period
of the initial agreement, to take fully into account the views of the releasing
government. The other members, while not ohjecting to this, felt that this
should not in any way prejudice the individual rights of thestaff member."
(Ibid., p. 92, para. 33 and p. 120, para. 66.)
As the dissenting opinion in Judgement No. 333 points out, "this paragraph
makes it quite clear that the government's view was not to he decisive but was
to be fully taken into account together with al1other relevant factors".

145. The Report sets out some of the factors that would be relevant, inter
olio: "the nature of the functions to be performed, whether continuing or non-
continuing; the structural pattern of the organization; and the source of
funding of posts" (ibid., p. 96, para. 6). Factors no1 relevant would include
nationality.

"I'hç nationality of a wrting ataff nieniber sfiould not be a criterion in
the decision \i,hcthcr or no1 to grani permanent riatus: the nationality fac-
tor is taken fully into account at the lime of recruitment and should no1
thereafter he a factor in the determination of the staff member's career,
which should be decided solely on grounds of the organization's needs and
the staff member's merits." (Ibid., p. 115, para. 49.)
National pressures, in the view of the Commission, may no1 he factors in any

recruitment decision :
"(xi) Executive heads, chiefs of personnel, career development and
placement specialists and managers should resist pressures from any
national government to show favouritism in the development of careers of
ils citizens. The executive head should appeal to the member States . . .to
refrain from exerting such pressures;

(xii) Positions within an organization should not be designated (either
formally or informally) as the specific domain of any country or group of
countries." (Ibid., p. 98.)
146. The General Assembly, at ib 37th Session, "welcomed" the JCSC report
and recorded no objections to any material part of it. The following year it reaf-
firmed the decision and, in resolution 38/232, VI, paragraph 5, recommended:

"that the organizations normally dispense with the requirement for a pro-
bationary appointment as a prerequisite for a career appointment follow-
ing a period of five years' satisfactory service on fixed-term contracts".

The passage of the resolution under which the Applicant claimed a right to
reasonable consideration, therefore, was not a casual expression of good will152 APPLtCATlON FOR REVtEW

but aconscious decision on the part of the General Assembly to reassert the con-
cept of a career service as the only way of giving effect to Chapter XV of the
Charter. The General Assemblv had never abandoned the conceot of a career

service, as the foregoing historiial record shows, and had defeated al1proposals
to alter the nature of the Organization. But previous attempts to draw the line
al a certain ratio of fixed-term to Dermanent &oo..tments had fou~de~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~
pressures for more equitahle geographical distribution and other desiderata.
This resolution placed a limit, not on the percentaze-of fixed-term staff. but on
the length of the fixed-term contract itseif.
147. The Applicant fell within the terms of the resolution as to both merit

and continuity. Moreover, he fell within the General Assembly's and the ICSC's
profile of relevant factors: he occupied a permanent, budgeted post. whose
functions were continuing, and which involved "complex duties and respon-
sihilities". for which preference should be given to those willing to accept a
career appointment.
148. The Tribunal's Judgement defeats the very purpose which the ICSC and
the General Assembly intended to promote: the reaffirmation of the orimacv
of the career service, open 10 all, on the basis of merit. who have demonstrated

their ability to do the job. It carves out a great swath of exceptions. It permits
a government 10veto otherwise qualified candidates, and il limits the abilitv of
the Secretary-General to offer a~career open to talent, wherever in the world
such talent may be found.
149. Wherefore the Applicant respectfully submits that the Judgement's con-
clusions are contrary to the letter of the ICSC report accepted by the General
Assembly, and are alien to the spirit of Chapter XV of the Charter.

(viii) Conclusion

150. Whereforethe A~~licant res~ectfullv reauests the Court to find that the
Tribunal. in ~udgçmcn; No. 333. érred on q;estion, of Iaw rclating io ihe
Charter. hy plïcing considerations of nationality aboi,e the "paramouni" prin-
ciple of merit; hy sanctioning involvement of a government in internal-pro-

cedures of staff appointment in disregard of the principle of neutrality; by
placing restrictions on eligibility in violation of the principle of equality; by
endorsing a delegation of the oower of annointment and an abuse of discre-
tlonary pOwer\ i,rfensivc to 1heàdministra;i;e principles of the Charter: and by
undermining the concept of a career international \eri,icc as intended by the
Organization's founderr. and as reaffirmed. over the year\. by ils constituent
budie,. The Applicant respectfully prays that the Court advise that Judgement
'Io. 333 should bç set astdc undcr this ground of challenge.

(Signed) Diana BOERNSTEIN,
Counsel for Vladimir Yakimetz.

22 February 1985. Annex A

STATEMEN TF THE UNITEDNATIONS STAFFUNION IN RESPECT OF JUDOEMENT

No. 333 (Yokimetz v. the Secretary-General of the United Nations)

The Staff Union has followed very closely the case brought by a former staff
member. Vladimir Yakimetz, challenging the decision of the Secretary-General
not to consider a further extension of his contract as well as the possibility of
a career appointment following the expiration of his previous contract which
was based upon secondment from his national Government.
The Staff Union feels that this case has substantial implications for the
independence and integrity of the international civil service. It viewswith alarm
the failure of the United Nations administration to defend the rights of this
individual staff member and the avvarent oolitical influence which has inter-
..
fered with the proper adjudication of this case.
The staff are further alarmedby the implications that support of this decision
would have for the career international service. It afparently ignores the
General Assembly's statementin resolution 35/210 "that no post should be con-
sidered the exclusivepreserve of any member state or group of States ..." and
the clear principle of the independence of the Secretariat outlined in Article 100
of the Charter.
In accepting his appointment, the Secretary-General stated on 15 December
1981 :

". am t~ ~~ ~ ~ ~ -~~~~~~~~~~hich must oreserve ifs basic sense as an
authentic international civil service so as genuinely to serve the interests
of the international community. In accordance with the Charter, this
necesrarily eniails sirict indepeiidence wiih respect to thr national inieresi\
of the States which are part 01'the Organization."

He further stated, in an address to the staff on 12 January 1982:

"As part of my effort to maintain the independent status of the
Secretariat, 1shall see to it that the career service of the staff will not he
adversely affected by any considerations unrelated to merits. Specifically,
1wish to reassure the staff that in matters related to career development,
nationalitv as such will not be considered as a relevant factor. As much as
any orgaiization, and perhaps more than most, the United Nations needs
to reward merit and put a premium on good performance."

The staff member's qualifications and merit have never been disputed. The
sole auestion relates to his status and in uarticular to his nationality. In the view
of théstaff, should any government be permitted to raise objections to con-
tinued employment on the basis of interna1 political considerations, the entire
conceot of an indevendent international civil service is thrown into ieopardy.
en a from the question of his nationality, there was no impediment for his
being considered for further employment. Article 101, paragraph 3, of the
~haÏter is explicit in stating that the "paramount consideration in the employ-
ment 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."154 APPLICATION FOR REVIEW

The contested decision would clearly thwart the purpose of the General
Assemblv's resolution 37/126 which decided "that staff members on fixed term
appointhents upon completion of fiveyears of continuing good serviceshall be
given every reasonable consideration for a career appointment". In this
instance. a leaal exoectancv of continued emolovment was created. an exoec-
tancy which Kasbien explicitly recognized in.prior tribunal decisions. .

If this principle isto be upheld, it cannot be made subject to exceptions based
u.on.ourelv oolitical considerations.
Givcn ih; ikplicaiionr ihat such a preccdcni will have. we fcel it ençumheni
upon al1concerned IO assure ihai the final decision resis upon a valid and impar-
tialleaal determination. For this reason we suooort the ~oolicant's reaue2 to
the Gineral Assemhly's Committee on ~~~lications for'~eview of ~dmini-
strative Tribunal Decisions with a view to requesting an advisory opinion from
the International Court of Justice.

lssued 20 August 1984

(Signed) George IRV~NG,

President,
Staff Committee. 2. WRITTEN STATEMENT OF THE UNION OF
SOVIET SOCIALISTREPUBLICS

In re.l, to letters N~. 725~ ~and No. 72531 dated 28 Seotember 1984 from
the Kegisirar of the International Couri of Justice of the United Nations. con-
iaining queïiionr submiiicd to the International Court of Ju\ii<c for advisor)
opinion,-the Soviet side communicate the following.
Question: In its Judgement No. 333 of 8 June 1984 (AT/DEC/333) did the
United Nations Administrative Tribunal fail to exercise iurisdiction vested in it

ther cmploynieni in the Ilnited Nation, of Applicant aficr the expiry of hii con-

tract on 26 December 1983?
Answer: In examinine -he case referred to it the Administrative Tribunal
assesses it in a comprehensive manner. The Tribunal is under no obligation
automatically Io follow al1the points in the applicant's claim. but, as a judicial
body, it musi itself determine in every specifi; instance the scope of its Grisdic-
tion, as is clearly stated in Article 2, paragraph 3, of its Statute.
Followina this vrincivle. which is generally accepted in iudicial vractice, the
Tribunal inparagiaph iofits ~ud~ementcorÏectly pointed out that it could con-
Cern itself only with the juridical aspect of the case and formulated the legal
issues which constitute the substance of the case. In this connection it pointed
out that the issues "are not independent of each other; sometimes conclusions
reached on any of them influence those on others".
In its Ju-aement thetribunal orovided answers to al1legal asvects of the case.
including the question. raised in Applicani's claim. concerning the existence i)f
legal impcdimeiits to hi5furihrr cmploymeni uirh the United Nsiions. Thi que$-

tion imolies examinina.-.irst. a nossible extension of a one-vear contract after
ils eupiiy on 26 Dccember 1983;;econd. its conversion to a çareer appoiniinent ;
ihird. thr conclusion oTa ncw contrait. As is e\,idcnt froni the Tribunal's mate-
rials. it examined the three oossibilities and came Io aov..ori.te conclusions.
Paragraph II of the ~ud~ementpoints out that Applicant worked "on second-
ment from the USSR Government", which was a "special condition" in his con-
tract.It is important to note in this regard that Applicant's appointments of 28
December 1977 and 8 December 1982 were considered by al1the three parties
involved-the defendant, the USSR Government and Applicant-as second-
ment from the USSR Government. Proceedina from its orevious oractice of
examininp cifccsintolving secondmeni. the~ribyinal in parigraph 1V'concluderl
ihai "any suh~equeni change in ihe tcrms oi the secondment iniiially agreed on.
for examole. its extension.obviousl~ requires the aereement of the three varties
invol\edG. liis iherefore clear that 1hcahwnre oisich irilaieral ifgrcerneni con-
siiiures a legal impediment ro the extension of Appliiant's fiucd-ierm contraci.
The question of a possible conversion of the appointment of a United Nations
employee working on a fixed-term contract is regulated by Rule 104.12 (b) of
the Staff Rules which States that a fixed-term appointment "does not carry any

expectancy of a renewal or of conversion to any other type of appointment".
The applicability of this rule to the case in question is examined in paragraph
IX of the Judgement, which points out that Applicant's attention was speci-
fically drawn to this rule in a letter by the Secretary-General dated 11 March
1983 in connection with Applicant's request foran extension of his contract.156 APPLICATION FOR REVIEW

TheTribunal also examined the question of the possibility of Applicant's fur-
ther employment in the United Nations on the basis of concluding with him a
separate new contract. Applicant was seconded foremployment with the United
Nations by the Government of the Union of Soviet Socialist Rspublics and
therefore his statement that he resigned "from al1official positions" which he

had held "in the Soviet Government" and his request that the United States
Government mant him asvlum naturallv raised the auestion of his acceotabilitv
as an internGional civil iervant. ~he-~ribunal was guided by the ienerali;
accepted opinion, reflected in the report of the Fifth Committee (doc. A/2615),
that-

"international officiais should be true representatives of the cultures and
the personality of the country of which they are nationals, and that those
who elected to break their ties with that country could no longer claim to
fulfilthe conditions govcrning cmployment in the United Naliaris".

The Tribunal followed this premise in its previous practice, in particular, in its
Judgement No. 326 (Fischman). This premise reflects the established practice of
aoolvine the orinci~le laid down in Article 101. oaraeraoh 3. o-.the Uni.ed
~ations-charier. which calls for "recruiting the sta'ffon as wide a geographical
basis as possible". It is precisely in this context that this premise is referred to

in the report of the Fifth Cornmittee.
The Tribunal also made reference to the information circular ST/AFS/
SER.A/238. In paragraph 12of that circular, which, as stated in its prearnble,
should serve as guidance for the Secretary-General, it is stated, in particular,
that

"the decisio~ of~ ~s~aff member to ~ ~ai~ ~n~or reouire oermane~~ ~ . .
residence status in . . . [the] country [of his duty station] in no way
represents an interest of the United Nations. On the contrary. this decision
mav adverselv affect the interests o~ ~he U~ited Nations in thecase of inter-
, ~ ~ ~ ~
nationally recruited staff members in the professional category and it is
particularly undesirable in the case of staff members recruited on the
geographiCal basis."
Thus, the Tribunal gave comprehensive consideration to the juridical side of

the question of the possibility of Applicant's further employment in the United
Nations. Its decision clearly sets forth the specific legal impedirnents to Appli-
cant's further employment in the Organization in light of the Staff Rules and
other relevant documents of the United Nations.

Question: 2. Did the United Nations Administrative Tribunal in the same
Judgement No. 333err on questions of law relating to provisions of the Charter
of the United Nations?
Answer: The provisions resorted to by Applicant were Article 101,paragraph
1, Article 100, paragraph 1, and Articles 8 and 2, paragraph 1,of the Charter

of the United Nations.
In accordance with Article 101, paragraph 1, "the staff shall be appointed by
the Secretary-General under regulations established by the General Assembly".
This provision of theCharter gives the Secretary-General of the United Nations
as the chief administrative officer of the Organization exce~tional oowers in
appointing staff within the frameu,ork esiabli;hrd hy thc ~1ai.f~ulesas uell as

by relevant rubsequent resolutions of the Generitl .Asscmbly.specifiinlly by Rule
104.12 IbJ and resolution 37/126. IV. paragraph 5. The applizabiliry of Rule
104.12 (11)has bcen discussed above in the <ontexi of the question of the legal
iml>ediments to Applicant's further employment in the United Nations. STATEMENT OF THE USSR 157

Kerolution 37,126, IV, paragraph 5, pro\idc\ that "\taff mrmbcr, on fixcd-
ierm contracts upon complction of fii,e years of coniinuing good cervice$hall
be -ive~ e~~,v reasonable considerationfor a career aooointment"
In paragraphs XIV.XVIII the Tribunal. on the bark.oi the analysis of the
steps taken hy the Sccrctary.Cieneral in conïider Applicant's requests concern-
ing the extension of his contract or giving him a career appointment, concludes
that in this specific instance only the Secretary-General is empowered to decide

what is the meaning of the phrase "every reasonable consideration". The
Secretary-General clearly determined that, taking into account that Applicant
had been seconded for a one-year period-from 27 December 1982to 26
December 1983,-he could not be appointed on a probation basis for the pur-
pose of subsequently offering him a contract on the basis of a career appoint-
ment. Thus, he has duly exercised his discretionary powers.
In accordance with Article 100, paragraph 1,

"in the performance of their dulies 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 Io the Organization."

Applicant's assertion that the Secretary-General violated the aforementioned
provision is groundless, with no arguments adduced to support it. Quite cor-
rectly, the Tribunal in paragraph XIX qualified this assertion by Applicant as
unfounded and concluded that the Secretary-General's actions in exercising his
discretionary powers "cannot be impugned on any of the grounds stated
above".
Article 8 states that the United Nations "shall place no restrictions on the
eligibilityof men and women to participate in any capacity and under conditions
of equality in ils principal and subsidiary organs". Itis obvious that Article 8

isnot at al1relevant to the case in question.
Article 2. paragraph 1.provides that the United Nations "is based on the prin-
ciple of the sovereign equality of al1its Members". This provision has no rele-
vance to the case either and any reference to it is totally pointless.
Thus in its Judgement No. 333 the Tribunal assessed the case in a comprehen-
sive manner and produced the decision regarding al1the legal issues involved,
taking into account the relevant provisions of the United Nations Charter. The
submission of the Iwo aforementioned questions Io the International Court of
Justice of the United Nations is legally inappropriateand has no grounds in law
whatsoever. 3. EXPOSÉ ÉCRIT DU GOUVERNEMENT ITALIEN

1. Le jugement no 333 du Tribunal administratif des Nations Unies a une
signification tout à fait oarticulière. en raison de la comolexitédesasDectsiuri-
d&es qu'il comporte 2 de ses retombéessuriebon fonctionnement
du SecrétariatdesNations Unies, dont l'indépendanced'action est pour l'Italie
d'imoortance fondamentale
a .ratique consisrani dans le dctachemeni aux Nations Unies d'employb
appartenant auxadmini5trations nationales desEtats Membre, devient toujours
olus fréauenteet a oris desdimensions telles nouvant faire naître certains doutes
<tir w rompatihiliiia\,ccIr Srariir de I'ONII. 1a siiiia:ii:tiirl$'agcraveraii
encore si les employésdeiaches, en rai$on de l'incertitude creec par le su,dii
iueement. devaientcraindre nue. au casoù cesseraitleur lien avec I'administra-
. - . .
tion nationale- du fait derévocationou n'importe quelle autre raison-, toute
possibilitéd'un emploi aux Nations Unies, à un titre autre que celui du détache-
ment. leur serait interdite
1.e; adminijirationsnationales auraicnt ainsi un invrument de prersion qui
pourrai1 amener les employes détachesa sacrifier les iniér@isde I'Organirdiion
en faveur de ceux de leuradministration nationale.
2. Dans les cas précédentsoù I'avis consultatif de la Cour avait été requis,
la Cour, dans l'exercice du pouvoir discrétionnaire qui lui permet de décider
librement si rendre ou non I'avis demandé.a effectuéun examen oréliminaire
des différentes circonstances. Dans le cas'en étude, puisque la p;océdure de
requêted'avis n'a pas étédémarrée Dar un Etat, ne sembleraient pas exister les

circonstance<qui, dans le cas~orriihed. avaient amenéla Cour -às'interroger
avec lesplus grands scrupules sur l'opportunité dc rendre un avis; en rebanchc
a une importance particulière la considération qui, aussidans le casprécédent,
a enfin amenéla Cour à seprononcer, à savoir que «la stabilité et l'efficacité
desorganisations internationales, dont l'organisationdesNations Unies repré-
sente I'exemole suorême,sont d'une imoortance si fondamentale pour l'ordre
mondial que la cour ne saurait manquer d'aider un organe subsidiaire de
l'Assembléegénéraledes Nations Unies à asseoir son fonctionnement sur des
basesfermes et sûres)) '
3. Danslesavisconsultatifs rendus nu cours d'occaçionr précidentes,InCour
a préciséque sa tâche n'est pascelled'une insiance d'appel pour lesjugemcnis

du Tribunal adminisiratil, qui devrait retoir toutes le\ qurstions de fait et dc
droit examinéespar le Tribunal: par conskqueni de pari italiennc, on selimitera
à exposer quelquesconsiderations rclativcr aux dcux points pour lesquels le
Comitédcs demande, dc réformation a décidé.conformemcnt a l'article II du
statut du Tribunal, de demander I'avis consuhatif de la Cour, à savoir:
4. «Dans son jugement no 333 du 8 juin 1984,le Tribunal administratif des
Nations Unies a-t-il omis d'exercer sa iuridiction. ne réoondant oas à la
demande relative a l'existence d'un obstacle juridique à la continuation de
l'emploi du requérantaux Nations Unies, à l'échéancede son contrat le 26 dé-
cembre 1983?»
C'est la en effet la question principale qui avait et: soumise au Tribunal par

le requérantYakimeiz. II s'agissait dc dccider si le fait que Yakimer7 avait wr\i
jusqu'en 1983 aux Nations unies en tant que détaché deson administration

C.I.J. Recuei1982, p. 347. nationale, lui empêchaitd'obtenir, sans le consensus de son administration, à
l'échéancedu contrat de détachement,une nomination à un autre titre aux
Nations Unies, et par conséquentsi le manque dudit consensusreprésentaitune
entrave juridique rendant impossible un nouvel emploi du réquérant aux
Nations Unies.

Dans sa requêteau Tribunal du 6janvier 1984,Yakimetz demandeau Tribu-
nal, en premier lieu, ade juger et déclarerqu'il n'y avait aucun obstacle légal
à la continuation de son contrat. le 26 décembre1983)).
Cette question était citéeen premier lieu par le réqukrant, non seulement
Darceau'il s'anissait de celle danslaquelle était contenu le oroblème iuridiaue
-
le plur important. mais aussiparceque d'un point de vue logique cette que3tion
devait ètre décidCela premiére: en effet. sasolution. dans un sensou l'autre,
était subordonnéela oossibilité de nasserà examiner les deux autres requêtes
adressées au ~ribunalpar le requérant,a savoir: ujuger et déclarerque luiavait
ctéillégalement refuséle droit a ëtre pris enconsideraiion raisonnable pour une
nomination fixe)) et «juger et déclarerqu'il avait une expectativelégitimeà être
nouvellement emolove»~
. .
Si en effet, au terme de l'examen dela question relative à l'existence ou non
d'un obstacle iuridique emoêchanttoute forme de nouvel emoloi. le Tribunal
avait conclu q;e l'obstacle &i,tait.ilaurait étCimpossible de &ber a examiner
les deux autres questions. En effet. ayant dectdéI'inadmi~sibilite d'un engage-
ment au noint de vue iuridiaue. on ne neut au'en tirer la conclusion au'il est

impossibie de prendre-en considération l'opportunité d'un tel engagement et
d'en peserle pour et le contre; quant à l'existence d'une «expectative légitime»
à l'égarddu renouvellement du contrat. iln'v aurait oas eu de sensd'examiner
cetteguestion. aprésavoir conclu que le ren~u\~ellcm~nd t u contrat étaitimpoz-
sibledu point de\ue juridique. II estévidentque. siaprts avoir décidéqu'il exis-
tait unobrtacle juridique. rendant impos5ible I;i continuation de l'emploi. le Tri-

bunal avait omis d'examiner lesdeux autres points. le manque d'un ICIexamen
n'aurait pas étéune «omission de juridiction», mais seulementla conséquence
inévitable de la conclusion atteinte sur le nremier ooint.
Ce n'est qu'après avoir décidéqu'il n'y avait pas d'obstacles juridiques que
le Tribunal aurait pu passeràexaminer si, outre à l'absence d'obstacles,existait
aussi le droit à une «considération raisonnable» pour «un engagementperma-

nent», de même qu'une «expectative légitime» pour le renouvellement du
contrat.
Le Tribunal néanmoins,au lieu d'examiner tout d'abord le premier point, de
la solution duquel dépendaitla possibilitéde passer à examiner les deux autres,
a tranché avanttout le deuxikme ooint. a traité le troisième d'une manière qui

a ressenti du manque d'examen du premier potnt et a complltement omis de
déciderau sujet du premier point
Pendant les discussionsdu Comitédesdemandesde r6formation, est resorti
un clivage d'opinions entre lesjuristes de formation latine, qui constataient dans
la fa~on de procéderdu Tribunal aune erreur essentiellede procédure, qui a
donnélieu a un maljugé». et ceux de formation anglo-saxonne, pour lesquels
. .
il>'agissîit plutfit d'une <<omissiondejuridictio8,~n réalité.du fait que le~ri-
bunal ait omis de se prononcer sur la premiérequestion fondamentale relative
àla orésenceou non d'un obstacle iuridiaue. sont nées des distorsions également
sur ia facon dont le Tribunal aaffront éttianchélesdeux autres poinÏs, et par
conséquenioutre au deuxième des motif5 de revision prévuspar l'article 1I du
statut du Tribunal (omission de juridiction). est valable aursi le dernier (erreur

essentiellede procédureayant donnélieu a un maljugé). Néanmoins,puisque le
Comitéde réformation n'a pasdemandé I'a\i5 de la Cour 3u sujei de cedernierpoint, on ne s'y attarde pas plus longuement, quoique la Cour ait estimé,dans
son avis du 20 iuillet 1982relatif au cas Morrished. d. oou.oir librement inter-
préterles questions formuléespar le Comité,en vue de tous les possibles motifs
de revision prévuspar l'article II. Les considérationsci-dessus servent de toute
facon à faire ressortir aue le fait aue le Tribunal ait omis de se nrononcer sur
l'existence d'un obstacle légalne saurait êtreconsidérécomme une omission

moindre. et que la question omise était iustement la principale. soitparce que
d elle étaientYatiachésles problémesjuridique> le\ plu, importants. ;oit pa;ce
que de sa solution. dans un sens ou 1'3utre.dépendaitla possibilitéde passer A
un examen des points successifs. et donctout le cours ultérieurde la procédure.
Aprèsavoir mis en évidencel'importance fondamentale de la question faisant
l'objet de l'omission de juridiction, puisque au cours des discussions aupres du

Comitéde réformation certains des intervenants ont observé à raison que «le
fait aue le Tribunal ait décidédifféremment au'il n'avait ~ ~é~é~s~ ~ ~~é~ ~r le~ ~
requérant. ne saurait ètreconsidér~une omission de juridiction 88.ilfaut exami-
ner $1le Tribunal ï en effet compleremenr omis de trancher cur I'existrnse ou
non d'un empêchementiuridiaue à la continuation de I'emoloi.
Alors que ~akimetz, en énumérantles questions qu'il soumettait à la juridic-

tion du Tribunal, posait en premier lieu celle relative à I'existence d'obstacles
juridiques qui auraient empêché la continuation de son emploi, de son côté,le
Tribunal, au début du jugement, ecrit :
<<Danscetteaffaire. lesquestions juridique> bemèlcnt à cellespolitiques.

Néanmoins.le Tribunal peut traiter e~clusircment lesquestions juridiques.
qui sont les suivantes:
O) si I'emploi du requérant auprès des Nations Unies en différentes pé-
riodes ait crééune expectative légitimepour la continuation de l'emploi

auprès des Nations Unies;
b) si, et en cas affirmatif, en quelle mesure, ait étéappliqué le para-
graphe 5de la résolutionde l'Assembléegénérale37/1266 (IV) du 17dé-
cembre 1982,qui dit: «Decide que le personnel employésur la base de
nominations à échéancesfixes, ayant complétécinq annéesde suite de

service louable, sera pris en considération raisonnable pour un engage-
ment fixe»:
c) les conséquencesde l'application desnormes et règlements desNations
Unies par rapport à la loi des Etats-Unis sur la résidenceet la natio-
nalité.n

IIparait évidentque dans cetteénumérationdes questions sur lesquellesildoit
se prononcer. le Tribunal a omis cellerelative à l'existence d'un obstacle iuridi-
qui rendant impossible toute continuation de l'emploi. Lecaractere incomplet
de l'énumérationn'aurait par ailleurs pas de valeur déterminantesi leTribunal
avait en effet examinéet décidé aussi laquestion omise par l'énumération,mais

on ne constate nulle part dans le jugement le développementde cette question.
II faut cependant observer qu'au paragraphe IV du jugement le Tribunal se
réfère à la lettre du Secrétaire général deN sations Unies. dans laquelle on cons-
tate que:

«la participation de toutes les trois parties en cause (ONU, employéet
administration nationale d'origine) étant nécessairepour le renouvellement
de l'affectation du réquérant,ledit renouvellement, compte tenu des cir-
constances, est impossible».

Le Tribunal reprend cetie constatation du Secrétaire(dont ilrésulte clairement
qu'on affirme I'exisicnced'un ob\titclc juridique rendant impossible le renou- vellement de l'emploi), sans par ailleurs motiver en aucune faqon cette convic-
tion, mais en se bornantà citer deux prononcésprécédént(sno 92, cas Higgins,
et no 192, cas Levcik), qui concernent un problème bien différent: ni le
réquérantni personne d'autre a jamais mis en doute que le rapport d'emploi à
titre de détachement ne peut être prolongé, toujours ù tilre de délachement,
qu'avec leconsensus des trois parties en cause (et c'eàtcela que se réfèrentles
~récédents sus-cités).Dans lecas enétudenéanmoins.il ne s'agissait oas de oro-
ionger, pour une nouvelle périodede détachement. le contraÏ de ditacherient
échuen décembre 1983(prorogation qui n'aurait pas étépossible sans le con-
sensus de l'administration nationale), mais de mettre sur pied, àson échéance,
un noveau rapport d'emploi qui ne serai! plus à litre de détachement: la
nécessitéou non, à cette fin, du consensus d'une administration dont la per-
sonne à emolover ne faisait olus oartie était iustementla auestion sur laauelle
Ir Tribunal aurait dû seprononcer. ~e~ribunal, au lieu d'examiner et dedécider

cette question cruciale, se borneà accepter d'emblée lanécessitédu consensus
- et Dartant l'existence. faute d'un tel consensus. d'un obstacle emoêchant
toute ioniinuation d'emploi aux Nation, Unies - sans motiver enaucune fajon
cette con\,iction ei omettant par conséquent d'exercer13jurid~ctionqui lui nvaii
étédemandéesur ce point fondamental. Comme conséquencelogique de cette
conviction -juste ou erronéequ'elle soit -le Tribunal aurait dû conclure, en
examinant si au réquérantavait été refusé le droità la «considération raison-
nable,) pour 13continuation dr I'cmplo,. que I'entrïie juridique répresentcep3r
le manque de consensus de I'adminisiration nationale cmpi'chait de prendre en
considération la prorogation de l'emploi même à un autre titre que le détache-
ment. C'est là du reste la position prise par le Secrétaire général des ations
Unies dans sa lettre en date du21décembre1984,de mêmeque dans la déclara-
tion dissidente du président du Tribunal.

Dans la lettre du Secrétaire généraalu réquérant onaffirme:
«dans vos lettres, en référenceà votre anciennetéde service et aux évalua-
tions exprimées par vos supérieurs, vous affirmez que « en conditions
analonues. la ~lu~art des emolovéss'attendraient à ce aue leur candida-
iure soit prise en considération raisonnable pour une nomination pcrma-
nente. eomine cela est prerL.rirpar I'Asseniblie gcneralc dans \a résolu-

tion 37/12h (IV). Vorrrsrtrrolionceuendan/n'es1paslumëme auecelledes
autresemploydsavec oncienneléde serviceanalogue Ù la vbfre, puisque
votre conlrot actuel a étéstipulé sur la base d'un délachementpar
votreadminislralionnationale. Vous-mêmeétiez consciendtecettesituation
qui ne saurait donner lieuà aucuneattente de renouvellement sansl'impli-
cation de toutesles parlies inléresséeù s l'origine.))

D'apres cette lettre, il est évidentque le Secrétairegénéral estimaitque, contrai-
rement aux autres emolovésavec ancienneté etméritesde service analoeue-.aui
auraient eu ledroiià &repris en consid ide rationraisonnableu pour unc nomina-
tion permnncnte, le requérant au contraire. en raison du manque de consensus
de l'administration nationale, ne pouvait être prisen considération pour cette
nomination.
La mêmeconviction ressort dans la déclarationdu président duTribunal. II
s'a-it d'une conviction o.i..o. .oue Dr~~ant d'une orémisselexi.tenc~ ~ ~ ~ ~
entrave juridique, empêchanttoute continuation de l'emploi) que I'ltalie estime
sans fondement. a du moins l'avantage d'arriver àune conclusion (im~ossibilité
de prendre en considération la demande du requérant de continüer à être
employé à l'ONU) tout à fait logique et cohérente avec la prémisse.
On chercherait en vain la même cohérencedans le jugement du Tribunallequel, après avoir observéau paragraphe IV que le consensus de l'administra-

tion nationale est indisoensableDouroermettre à un emolovéou'elle avait déta-
ché à I'ONUde conlinier, la Pé;iode.dedétachementaian; pris fin. à travailler
à I'ONU à titre différent(et donc qu'en l'absence dudit consensus ily aurait un
obstacle iuridioue emoêchant toute orise en considération). ..firme oourtant
que le requérantawif le droit d'être prisen considération pour l'emploi, qu'il
y a eu une prise en considération. et que le Secrétaire généradle l'ONU, aprks
avoir considérétoutes les circonstances, conformément au Statut et aux ~egle-
ments de I'ONU, dans l'exercice de son pouvoir discrétionnaire avait conclu
qu'il n'était pasde l'intérêdte I'ONU de continuer à employer Yakimetz. Par
ailleur~. ce mêmeTribunal. se rendant comote.au'.l n'étaitoa. oo.sible de sou-
tenir que le Secrétaire généraalvait donné«toute la considération raisonnable
qu'il étaitpossible»à la demande d'emploi du réquérant sansse mettre en OPDO-
sitionave; ce eue le Secrétaire lui-même avait aflirm~ (à savoir que la demande
du réquérantn'avait pas étéprise en considération du fait de l'existence d'un
obstacle juridique qui empêchait cetteprise en considération). ressent le besoin

de chercher à ré.arer à cette ~~ntradiction évidenteet reoroche au Secrétaire~ ~
généralde n'avoir pas affirméclairement qu'à la demandéd'emploi du réqué-
rant avait étédonnée toute la considération raisonnable qu'il était possible,et
conclut le jugement en exprimant sa désapprobationau secrétaire généralpour
«n'avoir pas précisé en temps utile et en termes spécifiquesqu'à la question

de l'engagement du réquérant avaitétéaccordée toute la considération
raisonnable possible, comme requis par la résolution de l'Assemblée
générale ».
IIest significatif que le présidentdu Tribunal ait estiménécessairede sedisso-
cier d'un tel reproche, affirmantque, compte tenu de l'impossibilité juridisue
d'employer à un autre titre un ex-détachésans le consensusde l'administration

nationale, l'emploi du réquérantne pouvait être prisen considération, et le
Secrétaire généranle méritaitdonc aucun reproche pour n'avoir pas préciséde
façon explicite que la demande du requérant avaitété priseen considération, vu
qu'au contraire la prise en considération n'avait pas eu lieu. en raison de
l'entrave juridique qui l'empêchait.
Desconsidérationssus-exposéesil parait clairement qu'il n'estpas possible de
soutenir que le Tribunal, puisqu'il a décidé que Yakimetz avait le droit d'être
pris en considération raisonnable, a par cela mêmedécidede façon implicite
qu'il n'y avait aucun obstacle juridique pouvant empêchercette prise en consi-
dération,et que par conséquentil n'y a eu aucune omission de juridiction relati-
vement à la question de I'existence ou non d'un obstacle.
Tout d'abord il ne parait pas possible de décider «implicitement», sans
aucune motivation, d'une question explicitement soumise à la juridiction du
Tribunal, et ensuite on observe que le Tribunal, aprks avoir affirmé (para-

graphe IVdu jugement) qu'un obstaclejuridique empêchaittoute prise en consi-
dération, a pu conclure que le réquérant avaitétépris en considération unique-
ment en raison de I'aiustement ci-dessus . .oroche au Secrétairegénéralpour
avoir précisé de façonmculentenl uimplicite» que la prise en eonsid&aiion àvait
eu lieu avec une issuc négative.alors que leSecretaire avait au contraire dit bien
explicitement au réauérantau'il ne oouvait êtreoris en considération).
Ën conclusion, de'part italienne on est de l'avis que lejugement en dGcussion
est le fruit d'un essai de compromis entre les membres du Tribunal qui affir-
maient l'existence d'un obstacle juridique et ceux qui le niaient.
Dans cet essai de compromis, le clivage d'opinions a étérégléd'une part en
omettant toute décisionde fond sur ce point fondamental et d'autre part en essayant d'amalgamer l'opinion de quj estimait que le requérant avait le droit
d'ëtre pris en considération pour la continuation de l'emploi et de qui estimait
cette oÏise de considération imoossible. II est évidentaue~lesessais de comoro-
mi5. si appliquéà un jugemen;. ne peuvent que conduire a de\ résultatsabsblu.
ment insatisfaisants du point de vue de la cohérence juridique L'incohérence
évidentedu iuaement en étudeest unedes raisons oouriesauelles I'ltalie. entant
qu'Etat adhérent A I'ONUet donc vivement intireiséau bon fonctionnement du
Tribunal administratif des Nations Unies. a étéamenée à présenterun exposé.
4. «Le Tribunal a-t-il commis une erreur sur une auestion de droit relative
aux dispositions du Statut des Nations Unies?>?
Les considérations de I'ltalie au sujet de ce deuxièmepoint sur lequel I'avis
de la Cour a étédemandéseront bien plus breves que cellesrelatives au premier
point, parceque leTribunal, enomettant d'exercersajuridictionsur cequi étaitle
point fondamental en discussion, s'est également soustrait aux observations qui
auraient pu lui êtreadressées, dupoint de vue de la conformitéaux dispositions

du Statut de I'ONU. s'il avait rendu sur cette question un jugement motivé.
Au cas ou le Tribunal avait décidéu'un emoloyéqui a travailléaux Nations
Unies en tant que dCtachPde l'adminktration nationàle d'origine ne pourrair à
la fin de la périodede détachementcontinuer Sunemploi aux h'ationi Unies à
un autretitre sans le consensus de l'administration nationaàelaauelle il..voar-
tenait. de part italienne on aurait eitimécette dési5ionen opposition avec I'ar-
ticle 8, l'articIW. paragraphes I et 2. et l'article 101. paragraphes 1et 3. du
Statut des Nations Unies
Cependant. il ne parait pas utile de développerd'autres considérationsA ce
sujet. En effet. faute des motivations que le Tribunal aurait adoptéesl'appui
de sa décisions'ilavait exercésa juridiction sur ce point,st impossiblede cri.
tiquer. en fondant toute critique sur de simples hypothéses.l'interprétation du
Statut que le tribunal aurait pu donner. II est d'autre part évidentque le\ criti-
q.es .ossibles relativesA la conformité au Statut. auxauelles le Tribunal s'est
soustrait en omettant de déciderle point fondamental ;oumis à sa juridiction.
ne peuvent qu'être ajoutées à celles déjà formuléesau sujet de cette omission.
II est importantà présentde réparerà l'omission du Tribunal moyennant l'avis
consultatif de la Cour.
Quant à la compatibilitéavec le Statut de I'ONU de la façondont le Tribunal
a tranchéla question du droit à une considération raisonnable vour un eneaee-
--
ment permanent, compte tenu du fait que, commedit ci-dessus, la décisionsur
ce point a étédéformée parl'omission de juridiction sur la question de I'exis-
tenie d'un obstacle iuridi.ue. on exorimeles considérationssuivantes.
Le Tribunal estime que la «considération raisonnable» indiquée à la résolu-
tion 37/126 de l'Assembléegénéralene devait pas forcément être effectuév ear
la «Commission pour les nominations et les promotions» des Nations unies,
mais pouvait aussi être effectuéepar le Secrétairegénéral.On pourrait à la
rigueur convenir sur cetteconclusion; cequ'on estime inacceptable, c'estinter-
prétation du Tribunal au sujet de l'étenduedu pouvoir discrétionnairerelevant
du Secrétaire général lorsqu'il effectue cette considération raisonnable. Pour
êtrevéritablement «raisonnable», cette considération devrait avant tout être
effectuéeaux termes de l'article 101 du Statut de I'ONU, selon lequel

«la considération dominante oour le recrutement et la fixation des condi-
tionsd'emploi du personnel doit êtrela nécessitd'assurerà l'organisation
les services de personnes possédant les plus hautes qualitésde trava~l. de
compétence etd'intégrité;.
Dans le texte du jugement. les capacitésprofessionnelles du requérant- quiaux termesde l'article 101auraient dû êtreconsidérées en premier lieu - nesont
~ê~e nas mentionnées. Les seuls élémente sxnlicitement mentionnés comme
;tant la cause de l'issue négativede la prise en considération sont le manque de
liens entre Ic réquérantet son pays d'origine et le manque de consensus de ce
.avs o.ur la continuation de l'em~loi.
On est par conséquent dc l'avis que le Tribunal. lorsqu'il a estimé correctun
exercice de pouvoir discrétionnaire par lequel on a attribue d des élémentsnon
mentionnésa l'article 101du Statut une valeur orédominanteDarrapport àceux

qui, selon cet article, auraient dû avoir une importance (ou plu-
tôt, lorsqu'il a pris en considération uniquement des élémentsnon prévuspar
l'article 101,sanstenir aucuncompte des élémentsqui - selon cet article- doi-
vent primer), a fait erreur au sujet d'une question de droit relative aux disposi-
tions du Statut des Nations Unies. 4. WRlTTEN STATEMENTOF THE GOVERNMENT

OF CANADA

Pursuant to thc provisions of Article 66(2) of the Statuie of the lnternational
Couri of Jusrice, and in rcsponseIO the invitation addres\edIO the Go\ernment
of Canada by the Registrar of the International Court of Justice on 2RSep.
tember 1984,the Go\,ernmeni of Canada wishesto submit certain genernlsom-
ment, on Judgemeni No. 333 of the United Nations Administrative Tribunal.

The lnternational Court of Justice has been reauested bv the Committee on
Applications for Reviewof Administrative ~rihunal ~udgementsto provide an
advisory opinion in response to two questions:
. . In its Judaement No. 333 of 8 June 1984IAT/DEC/333). did the United
Nations ~dministrative Tribunal fail io exerciw jurisdi~tiin \e$ted in itby
not responding to the question whether a legal impediment existed to the
further emnlovment in the United Nations ofthe aool..ant after t.e exnirv .
of his coniraci 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?
It is the intention of the Government of Canada to suhmit comments solely
with respect to issuesarising from question number 2. Further, the Government
of Canada does not intend to make any comments on the facts or merits of the
case heard by the Administrative Tribunal, but rather to present its viewswith
respect 10 the scope and proper interpretation of Articles 100 and IO1of the
United Nations Charter.
Articles 100and 101of the United Nations Charter are based in laree measure
on amendments proposed by the Canadian delegation to the unitid Nations
Conference on lnternational Organization held inSan Francisco in 1945.At the

time these articles were adopted. Ambassador Pearson. speaking on behalf of
Canada, made the following statement:
"We have laid down provisions for an international secretariat-
provisions which may prove Io be of greater consequence in the develop-
ment of international CO-operationthan certain other more exciting and
controversial paragraphs of Our Charter. We have, in fact, drawn up a
charter for an international civil service, and done it in such a way as to
ensure, in so far as we can hy any written provisions, that this service will
be based on the independence, integrity and efficiency of ifs mernbers."
(Documentsof the UnitedNations Conference, Vol. VI, doc. 1186, p. 14.)

To ensure the independence of the Secretary-General in staffing matters, and
to ensure that auestions of merit weretheoaramount consideration in such rnat-
[ers. Article 100of the United Nations charter cxpresslyenloins the Secretary
General or his staff from seekingin\rrueiions from any auihority externîl io the
United Nations. Concomitantlv. member States are Io refrain from seekine to
influence the ~ecretary-Genera; and his staff in such matters. Staff appoint-
ments are the sole preserveof the Secretary-General, subject only to regulations
established bv the~General Assemblv and to the naramount consideration of
securing the highest standards of efficiency. competence, and integrity. Con-
siderations of geographical distribution are subordinate to this principle.166 APPL~CAT~ON FOR REVIEW

To the cxtcnt that the requesr for an adviwry opinion irom ihc Court raises.

in part. thç quesrion of ihc proper application of the United Kations Charter
in cases of secondment, the ëovernment of Canada wishes to submit its views
on the nature of a secondment.
The Government of Canada recognizes that secondments may be a useful tool
to encourage a wider selection of staff both geographically and in terms of
experience. This tool. however, must be carefully regulated and must comply
with the principles of the Charter.
The Government of Canada submits that the only interpretation of second-
ment that is consistent with the terms of the Charter is that in such an arrange-
ment an individual rnakes his services available to the United Nations

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 contrarv to the Charter.
The ~ecretary-~enerîl undoubtedly ha5 s Içgitimate intercv in ionsulring
with mernbcr Statm on siafiappointmcnis in the interesti ofsecuriiig the highesi
standard of efficiency. cornpetence and integrity, or to seek out stafi to improve
the geographical distribution of employees in the Secretariat. Indeed, the rela-
tionship 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 thesole criterion in decisions of theSecretary-General with

resoect to secondments.
If the appointment or re-appointment of an employee were refused solely for
want of the consent of the country of the emolovee's nationality, or indeed of
any other member State. such decision would bécontrary to Articles 100 and
101 of the United Nations Charter.
The Government of Canada trusts that the Court will take into account this
interpretation of the United Nations Charter in making its decision with respect
to whether the United Nations Administrarive Tribunal erred in law on a ques-
tion relating to provisions of the Charter of the United Nations 5. WRITTEN STATEMENT OF THE GOVERNMENT
OF THE UNITED STATES OF AMERICA

1. INTRODUCTION

A. Questions Presenled
On 23 August 1984, the Committee on Applications for Review of
Administrative Tribunal Judaements (Cornmittee) reauested an advisory opin-
ion of the InternationalCOU; of ~ustice (court)with respect Io the following
Iwo questions:

"(1) In its Judgement No. 333 of 8 June 1984(AT/DEC/333), did the
United Nations Administrative Tribunal fail 10exercisejurisdiction vested
inif by not responding to the question whether a legal impediment existed
to the further employment in the United Nations of the Applicant afterthe
exoirv of hiscontract on 26 December 1983?
i2) .id the United Nations Adminirtratibe Tribunal. in the sîmc Judgc-
ment No. 333.err on que<tions of lau. rclating ta provisioiis of the Charter
of the United Nations?"

B. The Court's Jurisdietion
The authority for invoking the jurisdiction of the Court to render an advisory
opinion is found in theStatute of the Court. which provides in Article 65 (1):

"The Court mav aive an advisorv ooinion on anv leaal auestion at the
request ofwhatevérbody may be abthorized by or in accordance with the
Charter of the United Nations to make such a request."

The General Assembly, pursuant ta Article 96, paragraph 2, of the Charter of
the United Nations (Charter). so authorized the Committee in Articlel of the
Siatutc of the ~dm;nirirati~c Tribunal (Tribunal) (rcsolution 95(X) (1955)).
1'he Committee considcred an applic~tion submitted by the Applicant,
Mr. Vladimir V. Yakimctr. on 23 Julv 1984 tA/AC.86/R.I 17). and a res-
ponse by the ~espondent; the ~ecre;ary-General of the United Nations
(A/AC.86/R/I 18). On 23 August 1984the Committee found that a substantial
basis existed for two of the Applicant's contentions: that the Tribunal had
failed to exercise jurisdiction vested in iteglecting to address the question
of whether the Applicant was legally barred from further employment with the
United Nations; and that the Tribunal had erred with respect Io questions of
law relating to the Charter of the United Nations. The Comrnittee accor-
dingly requested the Court's advisory opinion on these Iwo questions
(A/AC.86/R.121).

C. The Court's I>iscretion
The Court has considered the question of whether to exercise the discretion
granted to it by Article 65 ofls Statute ta render an advisory opinion in Iwo
previous cases arising under Article 11 of the Statute of the Administrative
Tribunal, and inbath cases it decided that it should render the advisory opinion STATEMENT OF THE UNITED STATES 169

Nor does the record show that the Applicant's supervisor, Mr. Hansen, at that

time recommended to the responsible officiais of the personnel service that the
Applicant's employmcnr be extended, though as carlg a\ 8 February 1983he had
communisared in writing IO the Applicant hic iniention to recommend an exten-
sion of his employment on a fixed-term basis (i.e., the conclusion of a new
fixed-ierm conkacl) ..In hi, Ietter of2 December 1983io Mr. Negre, the Assis-
tant Secretary-Generdl for Pcrronnel Servicci. Mr. Haiiscn reiteraied Iiisdesire
to have the Aoolicant continue his emplovment with the United Nations. statina
that "[ilt is in ihe best interest of theoffice to continue to have the serviceof
Mr. Yakimetz".
On 13 December 1983the Applicant requested the Joint Appeals Board to
reverse the decision of the Respondent not to continue to employ him on the
basis of a new fvied-term contract. In his request, the Applicant notes that:

"1 was given to understand, both verbally and in writing,, that my
Department intended to recommend a further extension of my appoint-
ment or conversion to a career position . .. 1 understand that such a
recommendation has been made . . Given this service record and these
assurances. and after six vears 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 Assemhly
resolution 37/126, IV, requires."
The foregoingindicates unambiguously that the Applicant wished to be con-
sidered for a career appointment and, if that were not available, for another

fixed-term appointment. There was no mention of secondment.
On 21 December 1983the Respondent replied to the Applicant's request of
13 December. That reply States in pertinent part:
". : .in your letters, after referring to your service record and the evalua-
tionsof your supervisors, you state that under such conditions 'most staff
members would have an~exnectancv that their candidacv for a career
appointment would be "givenevery ieasonable consideration", as General
Assembly resolution 37/126, IV, requires'.
Your situation, however. is not similar to that of 'most staff memhers'

with comparable service records, because your present contract was con-
cluded on the basis of a secondment from your national civil service. At
the lime .our D.esent a~..inrmenr was made vour Government azreed ro
releoseyort/or seri.icu under a one.)eor conrracr. ihe Oryanizarron agreed
so ro /!mir the durarion of jour Unrted Narrons seri.ic.e,and you yoursel/
were aware of thar arra&emenr which, therefore, cannot give you any
expectancy of renewal without the involvement of al1the 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 anv other tvoe of aonointment'.
In hew o~rl;~/orego<~~.the reasons ad\,anced by you in your memoran-
dum of 13Decemberdo no1require ihe Sccretary-General io alier the desi-

'Thai no recommendationhad beenmadeas of 23 November1983seemsapparent
from the letter sent by the Applicant'ssuperviso10 the AssistantSecreiary-General,
OPS, on 2 December 1983 whichsiaies: '1 find itextraordinary ihatsucha decision
should be taken wirhourconsulringrhe heod O/ the OJJce concerned." (Emphasis
added.)170 APPLICATION FOR REVIEW

sion communicated to you by letter of 23 November 1983. That decision
is maintained and. therefore, the Secrefary-General is no! in a msi/ion /O
apree Io vour reauest 'Ihat the Administrative decision be withdrawn and
[Jour] nome forwarded to the appropriate Appointment and Promotion
body for reasonable consideration'for career appoinfmenl." (Emphasis
added.)

The foregoing shows that, al the time it took the action complained of by the
~~~licani. ihë Kespondeni believcd ithad "agreed" wiih ihç ~"vernmeni of ihç
USSR to Iimit the Applicant's service with the United Nations IO a pzriod co-
terminous with the expiry of the letter of appointment concluded on 9 December

1982. It shows that the Resnondent believed that the Annlic..t had been
seconded from hi\ "national ci\il service"IO the United Nation, in rhc contraci
of9 December 1982.thai ihe so salled "aareemeni" arose from ihat recundmeni
relationship, and that the Applicant ha&been made aware of it.
Finally and most importantly, the Respondent's letter of 21 December 1983
establishes the Respondent's belief that the "agreement" with the Soviet
Government precluded it not only from "extending" the Applicant'sfïd-term
appointment, as had been indicated in its letter of 23 November, but, in addi-
tion, to allowing the Applicant's name Io be "'forwarded to the appropriate
Appointment and Promotion body for reasonable consideration' for career
appointment". (Emphasis added.)
That the Respondent in fact held these viewsand based its actions with respect
to the Applicant's request for continued employment upon them is not only
made clear by the contents of the letters of 23November and 21 December 1983.

It is made clear, as well, by what the letters did no1 contain (i.e., any inde-
pendent rationale for the Respondent's extraordinary course of conduct after
10 February 1983). 11is consistent, in addition, with three contemporaneous
considered statements by United Nations officials. The United Nations press
spokesman said on 4 January 1984that the Applicant's contract "had not been
renewed because the Soviet Government had not renewed the secondment"
(UN Daily Press Briefing, 4 January 1984).The New York Timesof 4 lanuary
1984 reported an interview with Mr. de Olivares of the Secretary-General's
Office and included the following passage: "To have the contract extended,
Mr. Olivares said, Soviet consent was essential. But, he said, 'The Soviets
refused'." Finally Mr. Ruedas, the Under-Secretary-General for Administra-
tion and Management, wrote to the New York Timeson 4 January 1984,stating
in pertinent part that "a person who is on loan returns to his government unless
that government agrees otherwise-a principle applicable in al1 cases,

and no1 only those involving the USSR"'*' (New York Times, 25 January
1984).
On 6 January 1984the Applicant filed his application with the Tribunal.

' In hisAnrwer.writtenseveralmonthsafter the eventsin quesiion.the Respandent
seekrta distanceitselffrom thelette21fDecemberandthestatemenismadebyrespon-
siblcofficialsof the Secretariat,claimingthat the Respondenthad n~tperceiveditself
boundby an agreement withtheSovietGovernment. andthat itr decisionnottoofferthe
Applicanicontinuedemploymentwasbasedentirelyupon anunfctteredexerciseofdiscre-
lion. TheAnrwerclaimsthat the Respondentbelievedal that timethat the agreementof
the SovietGovernmentwas neededonly withrespectto an extensionof secandment,but
notwithrespecttocontinuedemployment on anyatherbasis. The Respondenatssertsthat
"in itsthird paragraph.[thetter]merelyparaphrasestheprinciplesenunciatedby
theTribunal at paragrapVI1 of Higginr.op.cir.in denyingthat Applicant could STATEMENT OF THE UNITED STATES 171

III. THE TRIBUNAL'S DECISION

A. The Questions Presented 10 the Tribunal by the Applicant

In his application to theTribunal, the Applicant asked it to rule on three ques-
tions of law:

"To adjudge and declare that no impediment existed to his further
United Nations employment after the expiry of his contract on 26 De-
cember 1983.
To adjudge and declare that he had an expectancy of further em-
ployment.
To adjudge and declare that he was illegally denied his right to
reasonable consideration for a career appointment." (Judgement, supro.
p. 43).

B. The Issues as Defined by the Tribunal

The Tribunal identifies at paragraph I of its Judgement three "legal issues"
in the case. They are:

"(O) 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 5of General Assembly
resolution 37/126. IV, of 17 December 1982 which reads:

'Decides that staff members on iixed-term appointments upon com-
pletion 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." (Judgement, para. 1.)

II is imrnediately apparent that issues fa) and fb) correspond to the Appli-
cant's second and third pleas, and that issue fc)is unrelated to the Applicant's
pleas. The Tribunal found with respect 10 the first "issue" that the Applicant
had no legal expectancy of further employment with the Respondent arising

have any expectancyof renewalof hisone-yearcontract onsecondmpnl".Answer,
paragraph21 (emphaaisadded).
But thdi irnoi what the slcsr nord<of the Ieticr,ay lhry ,ay ihat "the Organiration
agrred a0 IOlirniithe dur~tlonofyu>rrUn!led.NoIolionseriire 'hi<uording i,cniircly
con\irtentuiih thc Applicant'<a*\erlionthai the Kcrpondenthcllrvediirell legahouna
not to continue the~pplicant's employmentunder ony circumrionces without Soviet
Governmentapproval. It is entirelyconsistentwith the three contemporaneouspublic
siatementsmade by responsibleSecretariat officiais.It is. by sharp contrart. enlirely
inconsislentwiththe expo~t factoversion of eventsnow reliedon by the Respondcnt.
Thcrestaiemcnls ifiakenin isolationcouldalsosupport theRespondeni'sassertion
that the Respondentdidnot. despitethe unarnbiguoustermrof theletterof 21December
1983. feelitselflegallyboundnotIooffercontinued employmentta theApplicant.Inthat
case.theywouldconrtituteevidencethat the Respondentyieldedto the objectionsof the
Sovietauthoriiies(rce discussion,infro.al p.175).172 APPLtCATtON FOR REVIEW

either from his performance while employed under a series of fixed-term con-
tracts, or from General Assembly resolution 37/126, IV (Judgement, para. VI).
With respect to the second "issue", if found that the Respondent possessed the
sole discretion to determine whether or not il had given the Applicant's applica-
tion "every reasonable consideration", and that it had so deterrnined' (Judge-

ment. oara. XVIII). The Tribunal found that the third "issue" need not be
decided, since "theie was apparently no immediate problem and it seems that
no request was made to the Respondent for agreeing to the Applicant waiving
his orivileaes and immunities" (Judaement. para. XII)
1" addicon to ruling on two of the;hree issies if iisted, theTribunal also ruled
on three other issues it had not listed.These were: (1) whether the Respondent
improperly took into account the views of the Soviet authorities in denying
the Applicant's request; (2) the effect of the Applicant's decision Io seek to
change his nationality on his eligibility for continued employment with the
United Nations: and (3) whether the Aonlicant had been leeallv seconded to the
United ~ationsby th~<ioi~ernment oi'the USSR ;IIthe Grnéthe Respondent
took his decision IO rrjcct the Applicant's request for continued employment.

The Tribunal found chat the Rcspondent had not alloued himself to be impro-
pcrly inliuenccd by the vieu of the Soviet Go\,crnmrnr. thai the Respondcnt
was no1 only permitted, but na, required. Io take iiito account the Applirant's
intent to chaige his nationality. and that the Applicant was sec~ndedthrou~h-
out his las1 period of continuous service from December 1977 until December
1983.
The views of the United States with resnect to al1five issues addressed bv the
Tribunal are set out below.
All of the Tribunal's rulings in this case are of fundamental importance in
defining the nature of international civil service and are directly applicable IO
large numbers of international civil servants. They go far beyond the narrow

interests of those immediately concerned. The broader implications of the
Judgement were noted by Mr. Tsering, the Representative of Bhutan Io the
Committee, who stated

".. . this case is crucial-to the Applicant, to the Respondent, and in par-
ticular for the efficient running of the United Nations Secretariat in the
larger interest of the international community" (A/AC.86 XXIV/PV.5,
P. 5).

The inde~endence and inteeritv of the Secretariat is the kevstone of the func-
tioning of CheUnited ~ation; ~ie need to protect the large number of officiais
who are seconded under fixed-term contracts from undue pressures is critical.

It was in resnonse to that need that the General ~ssemblv~adooted resolution
37/126. IV. ~he lacis of the instant case mus1 be viewed in light of this need.
the Cicneral Assembly's response to il. and Articles 100and 101of the Charter.
The continued riabilitv of the United Nations in the Cormçn\,tsarcd bv Article
100and 101. an international organizaiion nith an independentSecrétariat, as
opposed IOan inter-governmental coalition. is the central isme raised bg the in.
stant case

'In ro finding, however,the Tribunal noted that the Respondent ncver exprersly
advisedthe Applicantihat "everyreasonableconrideration"had infactbeen givento the
Applicant's careerappainfment, and fails 10 establishof what such "reasonable can-
sideration"in its opinionconsisted(Judgement, para.XVIII). STATEMENT OF THE UNREO STATES 173

C. Discussion of the Tribunal's Judgement

1. THE LEON REAsoN~NG UNOERLYING THE TRIBUNN'SHOLDING THAT THE
APPLICANT HAD NO LEON EXPECTANC YF FURTHER EMPLOYMEN TITH THE
UNITEDNATIONS 1s FLAWEO

The Tribunal's reasonina in reachina the conclusion that Aoolicant had no
expectancy of further empÏoyment is uisound '.The Tribunal Siates that "[iln
so far as he was on secondment for the USSR Government, none of the actions
he took could bring about any legal expectancy of renewal of his appointment"

(Judgement, para. XII). This sentence is a non sequifur, since no action taken
by an employee can generate a legal expectancy in any case. The Tribunal goes
on Io assert:
"Ifhis fixed-term aooointment were not based on secondment he could.
inthe jurisprudence oi ihe Tribunal, hax in certain circumstances expecia:

lion of one kind or another for an extension, but such a siluaiion did not
arise."(Ibid.)
The Tribunal would thus aooear to be holding that secondmeni in and of itself
precludes the creation of'iegal expectancy Gr continued employment even if
the Resoondent were to take actions that would otherwise create one'. The
rib bu ngves no argument to support this view, which colours its entire judge-

ment, and cites no authority for it. It is this view that leads the Tribunal Io fail
to grasp the thmst and meaning of resolution 37/126, lV, including its critical
relationshio to Chaoter XV of the Charter. and causes the Tribunal to fail to
perceive théconflict(, betueen the ~espondenr's actions and Articles IWsnd 101
of the Charter. Thereis no hasi3 for this holding in logic, in the Charter. in the
StaffRules. or the iurisorudence of the Tribunal. and it is moreover inconsistent
with the nature of secondment, as the United States shall show. The United
States therefore believes that the Tribunal's legal analysis on this point is fun-
damentally in error.

2. THERESWNOENT WASOBLIGATED UNDER GENERAL ASSEMBLR YESOLUTION
37/126, IV, TO GNE THE APPLICANT'R SEQUEST "E~RY REASONABLE
CONSIDERATIONI"T . DID NOT COMPLY WTH THISOBLIGATION

(a) Resolurion 37/126I,V, Was Binding upon the Respondent

Resolution 37/126, IV. was adooted while the Aonlicant was emoloved by the
United Nations. The obligations piaced upon the ~espondenr with ;esLecl to the
Applicant by ihai resolution ihus besame part of the lcrmi and conditions of
his contract upon which he could rely in his dealings with the Respondent

a Whetheror no1a case couldbemadeout on the factsta supaofindingof expec-
tancydoer motgo ta the issueof the Tribunal'slegalreasoning.
' TheTribunalmakes clearin this passage itsbeliefthat thecriticalelementprecluding
the creationof exoectancvir secondment.no1the fixed-termnatureof the contract. Yet
theStaff Ruleinquestionates: "Thefi~ed~rermoppoinrmenrdoesno1carryanyexpec-
tancyof rcncwal. . (Rule104.12 (b(cmphasisadded).)This apparent contradiction
is resolvedwhenit is realizedthat althouahthe fixed-termcontractitBiverireot
IOan expectancy,actionstakcorassurancesgivenby the Respondentmaygiverire to
JudgementNo.th142,para.5).o ttypeof contran in question(Bh~flochorrya,UNAT174 APPLICATTON FOR REVIEW

(I.C.J. Reports 1982. P. 386). The General Assembly "decided" in parag.aph-
5 of the r.solution that employees of the secretaria1 having more than five
years' of acceptable service under fixed-term contracts "shall" be given "every
reasonable consideration" for conversion to career status. Whether or not the
Applicant had a "legal expectancy", that is a legal right, that the Respondent
would continue to employ him, under the terms of resolution 37/126. IV, he cer-
tainly did have a "legal expectancy" that the Respondent "shall" give his
application for such employment "every reasonable consideration". The
member States of the United Nations, who adopted the resolution have, more-

over, a right to expect the Respondent to comply with its terms, especially when
their purpose is to assure the effectiveness of a fundamentalCharter provision.

(b) TheRespondent Does not Have Unfeltered and Self-Judging Discretion Io
Determine Whelher "Every Reasonable Consideralion" Was Given the
Applicanl's Requesl

The Tribunal holds that

"ilis left to ihe Respondent to decide hou 'every reasonableconsideration'
for a career appointment should be given io a staff member undcr General
Assemblv resolution 37/126. IV. ~araara~h S. In ihe preseni case, the
esp ponde hntd sole oulhorrly lodictde-whul conslilure+d'reasonohte con-
siderorion' and wheiher the Applicani could be gi\en a probationary
appointment." (Judgement, para. XVlll (emphasis added).)

In the view of the ~nited States, the Respondent's discretion to determine
whether it had given the Applicant's request "every reasonable consideration"
cannot he hoth unfettered and self-judging, as the Tribunal holds. The Respon-
dent's discretion must in everv case be exercised in a manner consistent with the
Charter, and the United ~ations Staff Regulations and Rules. It was the task
of the Tribunal to determine on the basis of the law whether that discretion had
been abused
One pariicularly uell-expressed formulation of the 3tandïrd thai should be
applied to determine whether the Respondent had abused ii discreiion i, ihat
used bv the 11.0Adminisirati\e'Iribunalin the Xosescucase (ILOAT Judamenr
No. 4jl), which is referred to by Mr. Kean at paragraph 4 of his diisent;
namely, whether the Respondent's claim that it gave "every reasonable con-
sideration" to the Applicant's request

"is tainted with some such flaw as lack of authoritv...reach of formal or
procedural rules, mistake of fact or law, disregard of essential facts, misuse
of authoritv. or the drawing of clearly mistaken conclusions from the
facts"'

The Tribunal in this case, by contrast, fails to apply any objective legal
standard to the Respondent's conduct. It merely points to the Respondent's
statement in the letter of 21 Decemher 1983claiming that it had "given careful
consideration to the issues raised in your request for administrative review".

--
' The conceptof abuse of discretion. embodied in the standard emplayed by the
ILOATinRosescu,iswellestablishedintheadministrativelawof al1majorlegalsystems.
See, e.g., Wiersbowskiand McCaffrey,"JudicialConrralof AdministrativeAuthorities:
A New Developrncntin Eastern Europe", lnlernorionolLowyer, Vol. 18. No. 3. pp.
645-659. STATEMENT OF THE UNITED STATES 175

The l'ribundi infcrs from this un\upporred asseriion ihar the Hespondeni had
con<ciously and frecly exer~ired it<di,sretion IO dccidc whcthcr the applicani
had beengiven "every reasonable consideration for a carter appointment", and

~ ~d~ chat it had decided in the affirmative ~.(Jude"ment. o.r.. XVI). , ~he
Tribunal does not go on to test the Respondent's exercise of discretion against
the Rosescu standard (or any standard, for that matter), but without further
analysis concludes that the Respondent's decision in this regard was proper.
This failure could be construed to he. in the words of Article XI of the
Tribunal's Statute, ". .. a fundamental error in procedure which has occa-

sioned a failure of justice . ..".

(c) Under Eilher the Applicanl's or the Respondent's Version of the Focls, the

Respondenr Abused Ils Discretion in Deciding rhar Ir Hod Given the Appli-
conr's Request ''Eve~ Reosonable Considerarion"

No matter which party's version of the facts is usedas the basis for analysis,
the Respondent in this case clearly failed to meet the standard set out in
Rosescu. If the unamhiauous terms of the Resoondent's letter of 21 December
1983,corroborated by t<e officiais'statements.'are accepted,onemust conclude
that the Respondent rejected the Applicant's request because it felt legally

bound not to em~lov the Aoolicant further without the consent of the soviet
Govcrnment. ~nder.ihis fackal üs\umption. the Respondcni in fact gase no
suhstantivc consideraiion IOthe Applicant's request. The conclu,ion ihat in ihis
case no consideration at al1 constituted "every reasonable consideration" was
based upon a "mistake of fact or iaw". since no such legal bar in fact exists,
as demonstrated injra. The decision thus constituted an abuse of discretion

under the Rosescu standard.
Even if one were to ignore al1the Respondent's actions hetween 10February
1983and 4 January 1984,and accept, arguendo, the Respondent's unsupported
ex~.sl f.cro rationalization of its actions. it is ea.allv.clear that bv considerine
the Applicant's intent to change his nati'onality as a factor miliiating againsi

continued employment, the Respondent would have also failed to give the
Applicant's request "every reasonable consideration". As the United States
shall suhsequently demonstrate, the definition of "every reasonable considera-
tion" cannot include consideration of criteria barred by the Charter. Since the
Respondent. under ils version of the facts, admits that "the events of 10

February and thereafter" played a role in ils decision (Answer, para. 24). the
admitted use of a criterion harred by the Charter would have meant that its
"consideration" of the Applicant's request was ipso jure "unreasonable", and
amounted to an abuse of discretion. This is particularly so where, as here, that
improper criterion, together with Soviet Government opposition, was the only

apparent basisfor the Respondent's refusal to consider the Applicant's request.
The Respondent's decision under thesecircumstances would haveconstituted a
"misuse of authority" a "breach of a formal .. .rule(s)" and a "mistake of. . .
law" '*'.

' Moreover. the Respondent'srefusal io forward the Applicant's requesl to the
Appointmeni and Promotion Boardfor ils conriderationcould beconsidered a "breach
of aprocedural . . rule". sinceunderStaff Rule104.14 iiistheBoard.noi thepersonnel
services.ihat are io "-ive adviceon the a7 7 ~tmen~ . . of staff".
> E\en if thc RcipondcniIixd "givcn cnrcful conriderationIO ihc i,rucr raircd ln[the
Applicant',l rcqucrt for îdmintstrniivcrcvicu". thir 2ould nui ha\e con<iituicd.as ihc

Tribunal found. "c\rry rrnronahlciùnsidcraiiun" of ihr Applicant', appliçstion for a176 APPLICATION FOR REVIEW

3. THETRIBUNAL'S HOLDING THAT THE RESPONDEND TID NOT "ALLOW THE

WISHES OF A MEMBER STATEPREVAIL OVER THE ~NTERESTSOF THE UN~TED
NATIONS'1 'sIN ERROR.
The United States believes that the Tribunal has rnisconstrued the Rosescu

case, and that in fact that case stands sauarelv for the proposition that it is
irnpermir\ible for ihc Respondcni to ..alleu th; wishes of a member Siate Itol
pre\ail over the interesoi the United Nations" in rcaching personnel decisions.
The United Sraie5 turther belie\es ihat the estiihlishnicnt of such improper influ-
ence does not require the proof of a causal link hetween the opiosiiion of a
member State and the action of the Respondent.
In Rosescu. the interests of theIAEA were expressed in a letter to the Roma-
nian authorities stating that the Organization intended to conclude a new five-
year fixed-term contract with the Applicant. The Romanian authorities ex-

pressed disapproval of the Organization's intention to continue to ernploy Mr.
Rosescu. In the event, the new contract was limited to a duration of eight
months. The fact that the contract actually concluded was of a shorter duration
that the one originally intended was viewed by the ILOAT as ipsofacto evidence
that the Organization had conformed its conduct to some extent 10 the wishes
of a member State, notwithstanding the absence of evidence proving the
existence of acausal link between the opposition of the Romanian authorities
and the modification of the contract. All that was needed to be shown was that
one course of action defining the Organization's interest was originally pro-

posed, that a member State objected. and that another course of action was
taken.
In the instant case, the letter written on 2 December 1983by the Applicant's
suoerior. indicati-r his desire to have the ..licant continue in the service of
the United Nations, constitutes clear evidence of the interests of the organiza-
lion. The staternents by responsihle United Nations officiais (aP. 170, supra),
confirm that the soviet authorities had opposed the continuid employment of
the Applicant by the United Nations. The fact that the Respondent in the end

refused to ernploy the Applicant further constitutes, under Rosescu, ipso faclo
evidence that (to the extent discretion was exercised) the Respondent had con-
formed its conduct. at least to some extent, to the wishes of a member State.
The burden was thus on the Respondent to show that in rejecting the Appli-
cant's request, it was not responding to the wishes of the Soviet authorities, and
that ils decision was based on unrelated. and legitimate, concerns. The burden
was not sustained. The Resoondent merelv states in a circular fashion that its
decision .-Kas legitimatcly muiivated by the Secrctar)-Gencral's perception of
ihe intcrests of the organiziition" (nswer.para.25). This conclusory statemenr

is insufficient to sustain the burden imposed by Rosescu. Not only does the
Respondent fail to sustain the burden of establishing freedom from undue influ-
ence, but the factsstrongly suggest hoth that such pressures were applied, and
that the Secretariat believed it was legally bound to heed them. The conclusion
that the Respondent was reacting to the opposition of the Soviet authorities
stands unrebutted.

<oreCrnppdinimcni I hcadniini>irniirrtirurcferrcd10prr1ainr.ddnly Io ihr Kcvon.
dcnt'sdccisionuf23 Noirmhcr noi i<conridrraneriznrionofihr Appli:ani'r/r.rrd./erm
appoinimeni An a5rcrti\inrhat "iarefut ir>n4derat,ha,"bcrn nciurdrd a proiesi
againsidenmlof dn rrpplicaiionfoa fixid-ierm sppolnimciiicdnnoi propcrlybc;un-
rtdercdas rridcnce fortheprupuiiiion iha-cvçry rcasunablccùn,idcrniion"ha< hcîn
given alater applicatiofora careerappoiniment. STATEMENT OF THE UNITED STATES 177

The decision of the ILOAT to require proof of the absence of impropriety is
compelling as a logical and legal matter and the Tribunal is bound by the
Charter and fundamental principles of justice to follow that approach. If those

who believe they have beën damaged by improper governmë"tal intervention
with the Secretariat were to have to prove impropriety, they would be saddled
with an im~ossible burden. Employees cannot have accessto the facts that could
orove such an assertion. ~he~ecretarv-General on the contrarv mus1 have
access to facts that would credibly support the conclusion that héreached his

decision for reasons other than the request of a State. Indeed. if the Secretary-
General did not have sufficient facts~fully to justify his decision on grounds
totally independent of the request of a State not to employ someone, he could
have no legitimate basis for deciding no1to employ him. It is this practical and
logical matrix that makes the reasoning of Rosescu compelling as a matter of
logic, law and justice '.

4. THETRIBUNAL ERRED IN RULINO THAT THE RESPONDENW TASREQUIRED TO
TAKE INTO ACCOUNT THE APPLICANT'D SESIRE TO CHANGEHISNATIONAL~TY

WHEN DECIDINC WHETHER TO CONTINUE HISEMPLOYMENT

The Tribunal interprets a statement contained in a report by the Fifth Com-
mittee to find a necessarv inconsistency between a chanze in an ernployee's
nationality and his cligibility for coiinucd employmeit with the United
Nations. The Tribunal holds thar rhis view. nhich it characterizes as a "nidely
held belier", "musr continuc to provide an essential guidance in this mattcr"
(Judgement. para. XII). In the vieu of the United States, the Fiith Commitree's

srarement. coming as it did iitthe context ofa discussion of the efieci nationality
chanaes would have UDOnthenational auota svstem. cannot have been intended
to have the meaning ihe Tribunal ascriber to.it. If change of nationalil). ucre
to render an employcc "unruitable" for cmployment. the question of how to
arrange the quotas to take account of his continued employment under a new

nationality would never arise '.
Even if the interpretation given by the Tribunal to theFifth Committee's view
were correct, it is beyond question that the Secretary-Gencral may not follow
any "belief", no matter how "widely held", if to do so would cause him to
violate the terms of the Charter which be is sworn to uphold.

Inthe vicwof ihc UniicJSiaics.ihclong rangeintcresirof ihcorg~niz~iion .c..ihc
intcrerisof thr rncrnberrhipa<a uhule. cannoi he perrniitcdio be ,uburJlnated 10ihc
inicrcs~ ~ ~ ~oienii~sciions ofa singlernemhcr.This irno1merel, ihcloeicandconclu.
sionof R~~ ~ ~ . butan in~ ~ ~ ~ c~ndusionin linh"of Article 5..oara-.oh 1.of the
Chÿrirr. Under Arii;lc 2. pu~gr3ph 1. ifih~objril~oni of an) one Siaie are lu b~
accordcddcicrmin;iii\eucighi. ihcncaih Siair.mu\i hc accordrd a \imilari~plbillly
analo~ouari~cumiisnr.c<.T~ ~~~alnie-rati\r cffc;iui ~usha r-elmc on ihc o-aanizaiion
and ils Charter areobvious.
2 TheTribunalherereliesuponitsJudgement intheFischmon case(UNAT Judgemeni
No. 326).whichwasdecidedcontemporaneouslywiththe instantcaseand in whichthe
twoJusticeswho constitutedthemajorityalsoparticipated.Theextentto whichFischmon
may berelieduponasindependentprcviousauthoriiy fortheviewexpress&iniheinstant

case is therefareopen to seriousquestion.
' In hisdissent,Mr. Keanpoints outthal this spparentlycalegoricalrtaiementin the
FifthCornmittee's reportwastaken out of contextbythe Tribunal,and mus1be viewed
withcautionin the lighfof the subscquentdiscussionsin that Committee(Dissent, para.
12.note (a)).178 APPLICATION FOR REVIEW

In the latter connection, the United States would invite the Court's attention
to the Tribunal's holdinginlabial (UNAT Judgement No. 310). In that case.
the Secretary-General sought to deny the Applicant consideration for a transfer
based on his determination that the position in question was reserved for an
employee from a geographical area otherthan that represented by the Appli-
cant. The Tribunal, in rejecting the Secretary-General's decision. said:

"lt 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.

If it is unlawful for the Secretary-General to alter Article 101, paragraph 3,
of the Charter by making geographic diversity an additional "paramount"
criterion upon which personnel decisions are to be taken, afortiori it cannot be
lawful for him to alter the Charter in order to take into account a so-called
"widelv held belief" concernina the suitabilitv of certain emolovees for future
- . .
employment-a "belief" that is moreover unsupported by the language of
the Charter or by any reasonable interpretation of the Fifth Committee's in-
tent.
Since the Tribunal in Eslabial makes clear that the fulfilment of the para-
mount cntenon laid down in Article 101(3) is ioso facto "in the interests of the
service", iillows ihat basing personnel decisions on some oiher criierion can-
noi be "in the inieresis of thevice". The employment of a criierion sush as
"ihr eienis of 10 February 1983and ihereaiier" bv ihe Secrc~arv-Gencral in
reaching a decision respecting the "appointment trinsfer or of the
staff", Regulation 4.2, thus cannot he, contrary to the Respondent's assertion,
"in the interests of the OraanizationThe use of this criterion constitutes.

rather. aiolation of the siaidards esiablished by Article 101,parsgraph 3, and
in Staff Regulaiion 4.2 and is thus an abuse of discreiion.

5. THETRLBUNAE IRRED INFINDING THAT A SECONDMEN CTONTRACW T ASIN
EFFECT AT THE TIME THE RESPONDEN CTONSIDERE THE APPLICANT'R SEQUEST
Fon CONTINUED EMPLOYMENM T.R. USTOR'S VIEW THAT A CONTRAC TF SE-
CONDMENT BARSCONTINUED EMPLOYMEN WTITHOUT THE CONSENT OF THE
SENDING ORGANIZATIO 1NsINERROR

Respondent no longer asserts that the status of Mr. Yakimetz as a seconded
official rather than a; a party to a simple fixed-term contract is relevant. The
United States agrees that such a distinction ought not to have been relevant. Its
relevance in the instant case is that at an earlier and critical stage Resuondent
relied on suca distinction, and that the errors in the Judgemeit flow in part
from the failure of the Tribunal to understand why secondment is irrelevant,
and in part from ifs erroneous view of the nature of secondme'.

' Thc UnitedStatesbclievitis neverthelessimportantfor the Court to clarifythe
mcaningand natureof secondmcntin the light of its increasinguse in staffinginter-
nationalrganizationsgenerallyand theUnited Nationsin particular,evcnlhoughthis
casedoesno1turn on the questionof whetherthe Applicantwasin fact secondedto the
UnitedNationsduringhissecondcontinuousperiodof servicethere f27Dccember
1977Io 26December1983. STATEMENT OF THE UNITED STATES 179

(a) The Secondmenl Contracl Is a Symmelrical Trilateral Agreement,
Defined by Three Sets of Reciprocal Obligations

According to the jurisprudence of the Tribunal, secondment is a contract

concluded among a sendinn organization. a receivinn oraanization. and an
employee (~iggin;, ~udgem&t NO. 92, para. VII). ~heconkact of secondment
may thus be likened to a triangle, with one party at each corner, and with
reciprocal obligations flowing between each pair of parties alone each of the
rhree side.5.Darling ihcse obligations define; the c&traci nt sekndmeni.

The obligation of the sending orgunrzutio~i IO the rcceiving organizaiion is io
make the employee available to the receivina oreanization for the oeriod aareed
among the t'hree parties. The obligation of tie sending organLation t; the
employee is to offer to re-employ him at the conclusion of his service with the
receivina oraanization.

The Obligation of the employee to the sending organization is to lcavc the
employ of the sending organization, to enter the employ of the receiving
organization and to remainihere until the conclusion ofthe arrangement. ~he
obligation of the employee to the receiving organization is to accept the

discipline of the receiving organization and io perform whatever tasks are pro-
oerlv reauired of him Dursuant to the oraanic law of the oreanization. ~
' ~he obligation of théreceiving organi~/ion to the sending organization is to
employ the employee for the period agreedarnongthe three parties. The obliga-
tion of the receivi& organization to the employeë is to compensate him for jhe

work he performs and to employ him according to the organic law of the
organization for the term of the contract.

(b) A Valid Contract of Secondment Could no1 Hove Been Concludedamong
rhe Applicant, the Respondenl, and the Governmenr of the USSR al the
Beginning of the Applicanr's Final Conlinuous Term of Service in 1977

The Tribunal found, contrary Io the Applicant's view. that a valid contract

of secondment hûd beenconcluded among ihe Applicanr. the Kespondent. and
the Governmeni of the USSR in Decrmber 1977.ai ihc beginning of the Appli-
tant'\ qecondconiinuous ierm of ser\isc with the UiiiteJ Nariun,. This con~.lu-
sion is supported only by the observation that the existence of this contract of

secondment, CO-terminous with the Applicant's appointment of 20 December
1977on 26 December 1982. was Droven bv the fact that al1three oarties believed
that such a contract of secondment exisied (Judgernent. para. ill).
The United States does not find the Tribunal's reasoning in this regard to be
Sound. A shared belief amonz the ~urwrted oarties that a certain leed relation-

ship exists is not alone suffich ;O cieate that relationship. The l&al capacity
to enter into the relationship in question mus1also be present. In this casethe
Government of the USSR was incapable of entering into a secondment relation-
ship with respect to the Applicant because at the time the purported contract
was concluded, the autumn of 1977, the Applicant was not employed by that

Government. lmmediatelv orior to his a~~ointment in 1977. the Anolicant had
beenastudent of econom~c;, not a government official. ~he'fact thai the Appli-
cant had been employed by that Government as a teacher of physics until 1969
.Juda-ment. v..a. VI]). is not relevant to the issue bosed in 1977. Since the
Applicani wa5 noi rerrinp under a çonrrasi of secondment during the period

1977.1982, the purported modification of rhai non-exisicni contrasi io make ii
enDirein Desembcr 1983vice Deccmber 1982wasineffcctivc. Thi\ is [rue derpile
théfact that reference wasmade to it in the letter of appointment of 9 December180 APPLICATION FOR REVlEW

1982 Ascordingly. the United States belie\c> rhat the Applicanuas iiot \alidly
seconded to the United Nations by the Government of the USSR ai the time the
Respondent considered his application for career employment

(c) Even if the Applicant Hod Been Employed under Secondment During
His Final Fixed-Term Contract, the Woiver of His Right to Re-employment
with the Sending Orgonizolion on IOFebruary 1983
Would Have Vitiared the Secondment

The Tribunal, having erroneously found that a valid contract of secondment
was concluded in relation to the Applicant's letter of appointment of 27
December 1977 and that this secondment was modified bs aareement of the
three parties toxtend it until 26 December 1983, ruled thai th'ésevering of al1
official connections between the Applicant and the Government of the USSR
durina the Dendencs of that contraci had no effect uDon the secondment rela-
tionship (~Üdgement,para. XIII).
This holding is in error even if a valid secondment could be said to have
existed as of December 1977 or December 1982. The contract of secondment
necessarily obliges the sending organization to offer re-employment to the
employee at the conclusion of the contract. This obligation aives rise to a right
on theoart of the emolovee to re-em. .vment which.-as with al1ri-.ts. ma.-he
waived'by the emplo;ee:
That waiver has the effect of relieving the sending organization of its ohliga-
tion to offer re-e. .ovment. This bei-e the onlv remaini- -oblieation2tv-ne the
sending organization to the employer and the receiving organization (the other
three having heen discharged at the commencement of the term of the contract).
once it is dischar-ed al1 that remains is the hilateral contract between the
employee and the receiving organization, defined in this case by the letter of
a~~ointment. That contract is unaffected hv cessation of the secondment rela-
[&Ship.

. . A Contract of Secondment Contains no Im~licit Aareement on the Parl of
the Receiving ~r~anization no1 to Employ thé~mplOyeeSubsequent 10 11s-
Expiry without the Consent of the Sending Organization
The question of an implicit preclusive agreement not to employ is not dealt
with in the Tribunal's Judgement; it is addressed only in the statement appen-
ded to the Judgement by Mr. Ustor and in Mr. Kean's dissent. Mr. Ustor
States

"that the doctrine develo~ed in this respect by the Tribunal-baseon the
very nature of the concept ofsecondment-precludes not only the exten-
sion of a seconded fixed-term appointment but also its conversion to any
other type of appointment without the consent of the government con-
cerned".

Mr. Kean, on the other hand, referring to a paragraph in Annex 1of the 1982
Report of the ICSC. says that
"[flar from there being a generally accepted rule that in the absence of the
government's consent a seconded staff member must always he refused, in
limine, a career appointment at the end of his period of secondment, this
paragraph makes it quite clear that the government's view was not to be
decisive" (Dissent, para. 11). STATEMENT OF THE UNITED STATES 181

The United States agrees with Mr. Keati, and considers that Mr. Ustor's
discovery of a "doctrinedeveloped in this respect by the Tribunal" ta be without
foundation. Nothing in either the Higgins or the Levcik cases,ied on hy Mr.

Ustor, supports thisclaim.
The issue in Higgins was whether the sending and receiving organizations
could legally Varythe terms of the secondment contract while it was in effect.
in this case by terminating it before the previously agreed date. The Tribunal
found that they could not do so without the agreement of the employee.
In Levcik the Tribunal found that there was novalid secondment. There was
in neither case any discussion of the existence or nature of any preclusive
agreement inherent in the secondment contract that would require-the sending
organization to approve the future employment of the employee on a non-
seconded basis by the receiving organization after the secondment had expired
the issue did not arise in either case, so there was no need for the Tribunal to
discuss il.

Leaving aside the question of whether there exists authority in the Tribunal's
jurisprudence for the "doctrine"alluded ta. in the view of the United States no
such "doctrine" exists. There is nothing in the secondment contract that
remotely suggests the existence of an implicit obligation not to re-employ a
previously seconded employee on a non-seconded basis over the objections of
his government. If such an obligation were ta be implied, it could deny the
United Nations the future services of competent personnel at the uninhibited
whim of member States. Working under the shadow of such an obligation
would place United Nations personnel in a situation of dividedoyalties, to the
disadvantaae of the Organization and contrary to the most basic assumptions
underlyingihe conceptof an international civil service. The assumptions that

staff members of the United Nations are to e.xercisetheir judgment with som-
olete indeoendence and imoartialitv. and that member States are to resoect and
Support tGeindependence 8f the Gcretariat, are enshrined in ~~ticles'100 and
101of the Charter. These assumptions form the foundation of the Secretariat
as an international. ratherthan inter-eovernmental. institutionAccordinelv.
the existence of doctrine so clearly at-variance uiththe\e a,,umptions, aat
vltriance with the symmetrical structure of secondment described supra. 5hould
not be implied in the absence of clear evidence.

IV. THE TRIBUNAL'S DECISION IN THE LIGHT OF THE QUESTIONS
POSED TO THE COURT BY THE COMMITTEE

A. TheTribunal Failed in Exerciw Jurirdiction Vested in II b) nul Responding
Io the Question Whether a Legal Impediment Existed to the Furlher
Employment of the Applicant

1. THECOURTDEFINED IN THE FASLACASE THE STANDARD OF REVIEW TO BE
APPLIEO TO DETERMINW E HETHER JUR~SO~CTIO HNASBEENEXERCISED

TheCourt interpreted the Committee's first question in the Fasla case (I.C.J.
Reporrs 1973, p. 166). The Court there held that

"this ground of challenge covers situations where the Tribunal has either
consciously or inadvertently omitted to exercise jurisdictional powers
vested in it and relevant fo-r its decision of the case or of a particular
material issue in the case" (ibid., p. 189).182 APPLICATION FOR REV~EW

It went on to warn that

"[tlhe test of whether there has been a failure to exercisejurisdiction with
respectta acertain submissioncannot be the purely formal one of verifying
if a particular plea is mentioned eonomine 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 . . ."(ibid., p. 193).

Mr. Ustor's statement shedsimoortant light on whether the Tribunal met the
standard established in Fasla. M;. Ustor iosits two possible legal bars to the
Applicant's continued employment with the United Nations: First, that under
secondment. "conversion to anv other t..e of..ooointment without the consent
of the Government concerned" is precluded; second, that "the Applicant. in

view of the circumstances in which he electedo break his lies with his country,
'could no longer daim to fulfil the conditions governing employment in the
United Nations' ".
In bath cases.Mr. Ustor disagreeswith the reasoning of the Judgement, argu-
ing that the result, in which he concurred, should have been reached on the
ground that the Applicant was legally barred, and not on the ground upon
which it was reached, i.e., that the Respondent's refusal to consider the Appli-

cant's reauest for a career aooointment wasa leaitimate exerciseof discretion. In
thelight of~r Usior's siai~&eni. only iuoco~lu\ionsare po\\ible withrespeci
io each issue Eithcr the Tribunal in the Judgcmeni (1) failed io addressthe issue
entirelv. or(2)consideredthe issueand decided that there was no lenal bar. but
iieglecied io relleci tliat deïi~ion explicitly itehieThe ;oiiclus;on thai the
Tribunal ioiind. evenimpliciily. ihat a legal bar of any kind exisicd is ruled out.
The IJniicd Statçr hclietes ihat the Tribunal failed cnlirelv io consider the

issueof governmental consent for continued employment, and that it implicitly
found that a change of nationaliiy does not bar an employee from continued
United Nations sehice,

2. THE TRIBUNALFAILED TO "ADDRESS ITS MIND" TO THEQUESTION OF
WHETHERTHECONTRACT OF SECONDMENC TONTAINS A PRECLUSNE AOREEMENT

The Tribunal's discussion of secondment, wherein the first issue of the
cxi\tence of a legal bar would have arisen11ithad hcen con\idcred. is eniirely
sonccrncd with the question of uheiher the Applicani had an expeciancy of fur-
ther em~. .ment. The ouestion of whether the contract of secondment amonn
the Applicant, the esb bon dnd nte,Soviet Government contained somë

preclusive agreement, as suggestedin the Respondent's letter of 21 December
1983 and in-MI. Ustor's stafement. but reiected in Mr. Kean's dissent. is no1
nientioned. Iiis noi mentioncd becauscthe.~rihunal Iÿiled tu .'address iis mind
to 1x1matter 1.. .Ion uhish a plea was bssed". 1.e.. the criiical threshold issue
of ivhcther the A~nlicant's version of evenis (thal the Res~ondentbelievcd itself
legally bound no; ;Ocontinue the ~pplicani'\ employmeni absent the agreement
ol the Soviet Guvernmcni) or the Kespondeni's exposrjocro reconsiruciion was

to be acceoted as the factual basis for the Judeement. The Judnement aooears
cuperficiaily io be consistent with the ~e,~u;dent'\ rc~onsir;siion. but the
Tribunal ai no point aciually finds that the Ke\pondent was correct. or even
implies that iterceived that a difference of view existed between the Applicant
and the Respondent. The United States believes this omission to consider an
issue critical to the case wasa failure of the Tribunal ta "address its mind to
the matter 1...] on which a plea was based", a failure the Court has stated

defines "failure ta exercise jurisdiction(I.C.J.Reports 1973, p. 193). STATEMENT OF THE UNITED STATES 183

In the light of the foregoing, the United States asks the Court to advise the
United Nations that the Tribunal failed to exerciseurisdiction vested in it by

not answering the question whether the consent of the Soviet Government was
required forthe further employment of the Applicant on a non-seconded basis,
and that, as amatter of law, no such consent was required.

3. THETRIBUNAF LOUNDA , LBEITIMPLICITLY THAT AN EMPLOYEEC 'HANCE OF
NATIONALIT DOES NOT CONSTITUT AELECAL BAR TO HISCONTINUED
EWLOYMEN TY THE UNITEDNATIONS

The Tribunal did, by contrast, discuss extensivelythe facts (which in any case
were uncontested) pertaining to the Applicant's decision 10seek to change his

nationality. Yet at no point does the Tribunal conclude that the Applicant's
decision constituted a legal bar to continued employment. as Mr. Ustor wishes
it had. The Tribunal instead found that theResoondent had the discretion to
continue to employ the Applicant despite his intent io change naiionali',and
thai the Respondent's decision nut todo so in ihe light of the Applicant's inient

was a oronr~~e~ ~ ~~~ of that discretion. This findinn necessarilv DresuDoosesa
determination that the decision by the ~pplicgt 10 seek-& change his
nationality did not constitute an irnpenetrable legal bar to continued employ-
ment. ~cc~-~i~ -~,.the United ~tateibelieves that; with resoect to this issue. the
Tribunal found implicitly that no legal bar to continued employment is raised

by a decision to seek a change in nationality. (In anv event, as shown suDra,at
p: 177. to raise a change olnationality to lhe status of a paramount criterion
in making personnel decisions is conirary to the Charter.)
In the inieresis of clarifying the Iaw. the Uniled States asks the Court to son-
firm explicitly the implicit finding of the Tribunal ihat a decision by an

employee to seek to changc his nationaliiy does not consritute a legalbar to con-
tinued employment with ihe United Nations

B. The Tribunal Erred on Questions of Law relating to the Charter
of the United Nations

1. THE TRIBUNAL'FS-NDINC TH*T THE RESPONDENH TAD NOT ALLOWED -~THE~
WISHES OF A MEMBER STATE TO INFLUENCIE TS DECISION WITH RESPECT TO THE
APPLICANT WASBASED UPON A MISINTERPRETATI OfNARTICLE100, PARA-

The United States believes that the Tribunal's finding that the Respondent
had not "in anv manner let the wishes of a memher State orevail over the

interests ofthe-united Nations" (Judgement, para. XIX), to be erroneous.
Under the analysis employed in the Rosescu case, appliedmulalis mutandis to
the facts of this case.t is clear that the establishedunitNations interest in
the continued employmeni of the Applicani was improperly overriden by con-
sideration of a member State'r ~ippo~ition.For ihe Respondeni io have iaken

that opposition into consideration-in rejecting ~~~licant< rcquest for continued
employrnent (assuming, as apparently did the Tribunal, that he freely exercised

' TheUnitedStateswouldobservethat thisfindingappearriiatlyinconsistentwiththe
Tribunal'spreviousreadingof the FifthCornmitteestaternent.dircussupra ai page
177.184 APPLICATION FOR REVIEW

discretion in the matter) the Respondent would have acted in a manner incom-
patible with Article 100, paragraphs l a3.The United States asks the Court

so toadvise the United Nations.

2. THETRIBUNAL'FSINDINO THAT THE RESPONDEN TASJUSTIFIED INTAKINO
INTO ACCOUNT THE APPLICANT'D SESIRETO CHANCE HIS NATIONUITY IN DE-
ClDlNG WHETHER TO OFFERHIMCONTINUED EMPLOYMEN W TASBASED UPON A

MISINTERPRETATI OFNARTICLE101. PARACRAP3 H,OF THE CHARTER
The Tribunal holds that the Secretary-General required to consider a deci-

sion on the part of an employee to seek to change his nationality as a negative
factor in deciding whether IOextend that employee's employment with the
United Nations .Jud-ement. .ara. XII). The United States believe that the
Sccrctary-Ccncral15noi only not required to consider this factor,icin faci
legallyprecluded from doing so. As notesupra,ihc rcasoning employed by the
Tribunal in theEsrabiolcase npplies with cqual force to the prcscnt case. The
considcraiionç nt' "cfficiency. competense and iniegriiy" are, ascordinIO
Esrabioland in the i,iewof the United States. "paramount". as indeed Article
101.varaaravh 3.of the Charter exvresslv vrovides. In the context of this case.
. - ..
wherc there no question of somp&ition for a position among candidate, from
various geographic regions who al1meet the "paramount" criteria. the criteria
are. in addition. exclusive. Moreover. the so-callcd "widelv held belief" that
change of nationalityisables an international civil servant from continued ser-
vice is in Ourview bascd upon a misreading of the record of the Fifth Commit-
tee'sdiscussion of the issue. That "beliel" is in fact simvlv an exoression of the
politically motivated preferences of a small number of States. tGally devoid of
legal foundation, which is entitled to no weight when matched aaainst the

clearly contrary words of the Charter. The ~nited States asks the court so to
advise the United Nations.