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 UNIES Abbreviatedreference:
I.C.J. Pleadings,Applicalionfor Reviewof JudgemenrNo. 333 of
the UnitedNations AdministrativeTribunal
Refkrenceabrkgee:
C.I.J.Mdmoires,Demandede rdformalion dujugement no 333
du Tribunal administra tfsNations Unies APPLICATIONFOR REVIEWOF JUDGEMENTNo. 333
OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL
DEMANDE DERÉFORMATIONDU JUGEMENT No333
DU TRIBUNAL ADMINISTRATIFDES NATIONS UNIES INTERNATICOURTOFJUSTICE
PLEADINGS,LARGUMENTS, DOCUMENTS
APPLICATION FOR REVIEW OF
JUDGEMENT No. 333 OF THE
UNITED NATIONS
ADMINISTRATIVE TRIBUNAL
COURINTERNATDEJUSTICE
MÉMOIRES. PLAIDOIRIES ET DOCUMENTS
DEMANDE DE RÉFORMATION
DU JUGEMENT No 333
DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIES The present volume reproduces the Request for opinion, the dossier transmit-
ted bv theSecretary-General of the United Nations, the written statements and
comments. and the corresoondence in the case concernin~.the Aoolication for
~evieW~if~udgement Ni333 of the United Nations ~drninistrorive Tribunal.
This case, entered on the Court's General List on 10 September 1984 under
numher 72, was the subject of an Advisory Opinion delivered on 27 May 1987
(Application for Review of Judgement No. 333 of the United Nations
Administrative Tribunol, Advisory Opinion, I.C.J. Reports 1987, p. 18).
The Hague, 1990.
Le présent volume reproduit la requêtepour avis consultatif, le dossier
transmis par le Secrétaire général ds ations Unies, les exposés écrits etobser-
vations bcrites et la correspondance concernant l'affaire de la Demande
de rdformation du--upement no333du Tribunol administratif desNations Unies.
Cette affaire, inscrite au r61egénéralde la Cour sous le numero 72 le 10septem-
bre 1984.a fait I'obiet d'un avis consultatif rendu le 27mai 1987(Demande de
reformatron dujugemenr no333du ~rrbunoladrnrnrstrutrf des~otions Unies,oi.1~
consultatif. C.1.J. Recueil 1987, p. 18).
La Haye, 1990 CONTENTS - TABLE DES MATIÈRES
PW
Request for Advisory Opinion - Requêtepour avis consultatif
THE SECRETARY-GENER OFALHE UNITED NATION SOTHE PRESIDEN TF
THE INTERNATIONC ALURT OF JUSTICE ............ 3
Dossier transmitted by the Secretary-General of the United Nations
(Art.65, para. 2, of the Statut-) Dossier transmis par le Secrétaire
généraldesNations Unies (article65, paragraphe 2, du Statut... 6
Part 1of the dossier. Documents relating to the proceedings leading
to the request by the Committee on Applications for Review of
~dministiative Tribunal Judgements for an advisory opinion of
the International Court of-~ustice in relation to ~udgement
No. 333 of the United Nations Administrative Tribunal....
A. Doc~ ~ ~ ~ ~ ~ ~ ~ ~ ~v-fourth Session of the Committee
B. Other documents cited in or relevant to documents con-
sidered bv the Committee at its Twenty-fourth Session.
C. ~oc- -~~~~~~~~~itted 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 ins Ju.gement 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 Thirtv-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 ..................... CONTENT SF THE DOSSIER (under this heading are listed the titles of the
documents reproduced. while the titles of those no1 reproduced are
mentioned in the text) ....................
Application of Mr. Vladimir Victorovich Yakimetz dated 21 June
1984 ...........................
Comments of the Secretary-General on Applicant's written statement
(A/AC.86/R. 117) .....................
Decision of the Committee on the application of Mr. Yakimetz
reauestine an advisorv oninion of the International Court of
Juitice inUrespectof tie ~inited Nations Administrative Tribunal
the United Nations)Y.....tz oa.-n................-General of
Report of the Committee ...................
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
JUSTICE ON BEHALF OF THESECRETARY-GENEIU OFLTHE 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 to 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 to the Tribunal and the Tribunal's
Judgement ..................
(ii) The Application to the Committee and its outcome CONTENTS
....
C. Response to question posed by the Committee
(i)Committee's question not at issuebetween partie. .
(ii)The Tribunal is not obligated to answer abstract
questions ...................
(iii)Question was not relevant to the Tribunal's adjudica-
tion .....................
(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 ro 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 inrelation 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 Charter....
(v) Article 2, paragrapI,and Article 100,paragraph 2,
of the United Nations Charter..........
III. Conclusion .......................
Appendix. Outline of essential characteristics of career appoint-
ments, fixed-term appointments and fixed-term appoint-
ments on secondment ..................
1. Career appointment ................
II. Fixed-term appointment ...............
111.Fixed-term appointment on secondment ........
STATEMEN TN BEHALF OF T= APPLICANT MR. VLADIM~Y RAKIMETZ
WITH RESPECT TO JUDGEMENN TO. 333 OF THE UNITEDNATIONS
ADMINISTRATIV TRIBUNAL ..................
A. Request to the Court to accept jurisdictio..........
B. Explanatory statement ...................
C. The legal issues......................
Preliminary observations on the scope of review 1.Did the United Nations Administrative Tribunal fail to exer-
cisethe jurisdiction vested init by not responding to the ques-
tion whether a legal impediment existed 10 the further
employment in the United Nations of the Applicant after the
expiry of his contract. 26 December 1983 ........
(i) The standard to be applied ............
(ii) The issues before the Tribuna...........
(iii) Did the Tribunal "apply its mind" to 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. .
(cl The Tribunal's analysis in Judgement No. 333
B .Concerning the obligation of the Secretary-General
towards the Applicant under General Assembly
resolution 37/126. IV. paragraph 5.......
(a) The Applicant's arguments .........
(b) The previous jurisprudence of the Tribuna. .
(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 m.........
(iv) In regard to the principle of neutra.......
(v) In regard to the principle of equal........
(vi) In regard to the administrative principles of the
Charter ....................
(vii) In regard to Cbapter 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 SOC~N~SR TEPUBLICS
3. EXPOSE ÉcRIT DU GOUVERNEMEN ITALIEN ...........
4. WRITTEN STATEMEN OF THE GOVERNMEN OTFCANADA ......
5. WRITTEN STATEMEN OF THE GOVERNMEN OTTHE UNITEDSTATES OF
AMERICA ............... .............
1. Introduction......................
A .Questions presented .................
B .The Court's jurisdictio................
C .The Court's discretion ................ CONTENTS
Summary of the facts ..............
III. The Tribunal's decision .................
A. The questions presented 10 the Tribunal by the Applicant
B. The issues as defined by the Tribunal ..........
C. Discussion of the Tribunal's Judge.ent .........
1. The legal reasoning underlying the Tribunal's holding
that the Applicant had no legal expectancy of further
employment 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-
. . Under either the ~onlicant's or the Resoondent's ver-
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 his nationality when deciding whether to continue
his employment ..................
5. The Tribunal erred in findine that a secondment contract
was in effect al the time 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 error...............
la) The secondment contract is a symmetrical trilateral
agreement,defined by three sets of reciprocal obliga-
tions ..............
lb) A valid contract of secondment could no1 have been
concluded among the Applicani. the Respondent, and
theGovcrnmeni of the USSR at the beainning of the
Applicant's final continuous term of sirvice in 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 ...... IV. The Tribunal's decision in the light of the questions posed to the
Court by the Committee . . . . . .. . . . . . . . . . .
A. The Tribunal failed to exercisejurisdiction vested init by no1
responding to the question whether a legal impediment
existedto the further employment of the Applicant . . . .
1.The Court defined in the Fasla case the standard of
review to be applied Io determine whether jurisdiction
has been exercised. . . . . . . ... . . . . . . .
2. The Tribunal failed Io "address its mind" Io the question
of whether the contract of secondment contains a
preclusive agreement . . . . . . . . . . . . . . .
3. The Tribunal found, albeit implicitly, that an employee's
change of nationalitydoes not constitutea legal bar Io
his continued employment by the United Nations . . .
B. The Tribunal erred on questions of law relating Io the
Charter of the United Nations. , , , . . . . . . . . .
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, paragraphsand 3, of
the Charter. . . . . . . .. . . . . . . . . . . .
2. The Tribunal's finding that the Respondent was justified
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 Article101, paragraph 3, of the Charter. . . . . .
Written Comments - Observations efrites
1. COMMENT ON BEHALF OF THE SECRETARY-GENER OF THE UN~D
NATIONS SUBMITEDPURSUANT TO ARTICLE 66, PARAGRAPH 4, OF
THE STATUT EF THE INTERNATIONC AOLURT OF JUSTICE . . . . . .
Summary of the principal contentionsof the Applicant . . . . . .
Comments of the Secretary-General . . . . . . . . . . . ...
A. The principle of merit (Art. LOI.para. 3)
Summary of the principal contentions of the Applican. . .
Comments of the Sccreiary-General . . . . . . . . . . .
B. The principle of neutrality (Art. 10. . . . . . . . . . .
Summary of the principal contentions of the Applicant . . .
Comments of the Secretary-General . . . . . . . . ...
C. The principle of equality (Art. 2, para. 1, and Art. 8. . .
Summary of the principal contentions of the Applicant . . .
Comments of the Secretary-General . .. . . . . . . . .
D. Administrative principles of the Charter (Art. 97and An. 101,
para. 1). . . . . . . . . . . . . . . . . . . . . . .
Summary of the principal contentions of the Applicant . .
Comments of the Secretary-General . . . . . . . . . . . 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. Preliminarv observations of the Aoolicant . . . . . . . . .
II. The first qbestion addressed ta thezourtby the Cornrnittee on
Aiiolications for Review of Administrative Tribunal Judge-
mi& : did the Tribunal fail to exercise the jurisdiction vested
in i? . . . . . . . . . . . . . .. . . . . .. . . . .
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. Article 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.la.t. .n.am. . .
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 OTF 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
upon it ......................
B. The Respondent's statement with respect to the issue of
failure to exercise jurisdiction is ill-founded and unper-
suaslve ......................
1. Contrary to the Respondent's statement, the question
ment of the Applicantrwariin issue hetweenthe parties
2. The question of whether a legal bar existed to the fur-
ther employment of the Applicant is a concrete issue
that the Trihunal was ohligated to address and ad-
judicate ....................
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. ...................
C. The Respondent misconstrues the Tribunal's decision
with respect to whether "every reasonahle consideration"
was given to the Applicant's request .........
D. The Respondent's statement with respect to the Com-
mittee's question concerning Charter interpretation
misconstrues the Respondent's obligations under the
Charter .....................
1. Article 101...................
2. Article 100, paragraph 1 .............
3. Article100...arae-.nh 3 .............
III. Comments of the United States on the Statement suhmitted
hy the USSR .....................
A. The Statement of the USSR misconstrues the issues raised
hv the Committee with resnect to exercise of the
Tribunal's jurisdiction ...............
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 .......
C. hé "answer" of the Soviet Union to the question posed
hy the Committee to the Court concerning Charter inter-
pretation
IV. Conclusion
Reading of the Advisory Opinion .................
Correspondence - Correspondance ................ REQUEST FOR ADVISORY OPINION
REQUÊTE POUR AVIS CONSULTATIF THE SECRETARY-GENERAL OF THE UNITED NATIONS
TO THE PRESIDENT OF THE INTERNATIONAL
COURT OF JUSTICE
28 August 1984.
Sir,
1have the honour to refer to Article II of the Statute of the United Nations
Administrative Tribunal (resolution 957 of 8 November 1955) whereby the
General Assemblv of the United Nations established a Committee on Aoolica-
tions for ~eview of Administrative Tribunal Judgements and authorGd it,
under paramaph 2 of Article 96 of the Charter. to request advisory opinions of
the 1nternaÏional Court of Justice.
The twenty-fourth session of the Committee on Applications for Review of
Administrative Tribunal Judgements opened at United Nations Headquarters
on 20 August 1984. The puriose of the session was to consider, inter ;/;O,an
application from Mr. Vladimir Victorovich Yakimetz (doc. A/AC.86/R.117)
for a review of Judgement No. 333 delivçred by the United Nations Admini-
strative Tribunal on 8 June 1984(doc. AT/DEC/333). At a closed meeting on
23 August 1984the Committee, having taken a separate decision in respect of
each of the four grounds invoked by the Applicant under Article II of the
Statute of the Administrative Tribunal. decided to reauest an advisorv ooinion
oi the Internarional Court of Jusiicc regarding TribUnal Judgrmeni -N;. 323.
The dçcision of the Commiitee, as formally announced by ils Chairman at an
open meeting of the Committee on 28 ~ugust 1984. reads as follows :
"The Comrnittee on A~~lications for Reviewof AdministrativeTribunal
Judgements at the 4th meeting of its twenty-fourth session on 23 August
1984decided that there was a substantial basis, within the meaning of Arti-
cle II of theStatute of the Administrative Tribunal. for the anolication for
reviewof Administrative Tribunal Judgement No. 333 delive;id al Geneva
on 8 June 1984.
Accordingly. the Cornmittee on Applicaiions for Rcvicu of Administra
iiic 1ribunal Judgemrnis requem an advisory opinion of the Inierndiional
Court of Justice on the following questions :
'(1)In its Judaement No. 333 of 8 June 1984(AT/DEC/333). did the
~nji;d ~aiions-~dminisir3rirc Tribunal fail 10 exercise jurisdiction
vested initby not rcsponding io the question wheiher a legal impediment
exisied to the furihcr em~loyment in the Uniied Nations of ihe A..licani
after the expiry of his contract on 26 December 1983 ?
(2) Did the United Nations Administrative Tribunal, in the same
Judgement No. 333, err on questions of law relating to provisions of the
Charter of the United Nations ?'"
1am enclosing herewith one copy each. duly certified. of the English and
French texts of the document of the Committee (A/AC.86/R.121) containing
its decision.
Pursuant to the Committee's rules of procedure (A/AC.86/2/Rev.3 and
Corr. l (English only)), a verbatim record of the open meeting of the Committee4 APPLICATION FOR REVIEW
on 28August 1984is beingprepared and willbe transmitted 10theCourt as soon
as possible.
In accordance with Article 65 of the Statute of the Court, 1shall transmit 10
the Court al1documents likely to throw light upon the questions addressed to
the Court by the Committee on Applications for Review of Administrative
Tribunal Judgements. Furthermore, as requiredby paragraph 2 of Article 1of
the Statute of the Administrative Tribunal, 1shall arrange to transmit any views
that Mr. Yakimetz, the person in respect of whom the Tribunal rendered its
Judgement No. 333.may wish to submit.
Accept. etc.
(Signed) JavierPÉREZ DE CUÉLUR.DOSSIER TRANSMITTEDBY THE
SECRETARY-GENERAL
OF THE UNITED NATIONS
DOSSIER TRANSMIS
PAR LE SECRÉTAIRE GÉNÉRAL
DES NATIONS UNIES INTRODUCTORY NOTE
1. On 28 August 1984 the Secretary-General informed the President of the
lnternational Court of Justice that, by a decision adopted on 23 August 1984
at ils 24th session and announced al a public meeting on 28 August 1984, the
Committee on Applications for Review of Administrative Tribunal Judge-
ments (the Committee), after having considered an Application from Mr. Vla-
dimir Victorovitch Yakimetz relating Io Judgement No. 333 of the Tribunal,
requested the Court to give an advisory opinion on the following questions :
"(1) In its Judgement No. 333 of 8 June 1984(AT/DEC/333), did the
United Nations Administrative Tribunal fail to exercisejurisdiction vested
in ithv not resvondine to the auestion whether a leaal imvediment existed
io thc'further ;mplo).mcnt in ihc United Nations ofÏhe ~pplisani aficr the
e~pir) 01 hi<contrait on 26 Ueiember IY83?
12) Did ihc llniied Nations Adminisiratii,c Tribunal. in the same Judne-
mint No. 333, err on questions of law relating to provi'sionsof the charter
of the United Nations ?"
2. The present dossier contains documents likely to throw light upon these
questions. The dossier consists of Iwo parts. Part 1contains documents relating
to the proceedings leading to the request by the Committee for an advisory
opinion of the lnternational Court of Justice, including Judgements of the
Administrative Tribunals of the United Nations and the lnternational Labour
Organisation that were referred to in such documents. Part II contains docu-
ments directly relating to the formulation of paragraph 5 of section IV of
General Assembly resolution 37/126, and paragraph 5 of section VI of General
Assembly resolution 38/232.
3. The documents, which constitute part of the Official Records of the
General Assemhlv. of the Committee. of the Administrative Tribunal of the
Ünited Nations, as well as of the Secretariat of the United Nations and of the
Administrative Tribunal of the lnternational Labour Organisation, have heen
~~rtified I~ h~ ~~ ~r~Io be true conies or translations thereof. Each document
is identified by title and official ~&ed Nations symhol, if any. Whenever possi-
ble, a citation is also aiven to the volume where the document may be found
~ ~ ~e Of-.c~o~ ~~c~ ~ ~f the United Nations. In addition al1documents have.
for convenience of use, been numbered consecutively in the order in which they
aovear in the dossier and references to documents in this lntroductory Note are
baied as closely as possible on this system of numbering
Part 1 of the Dossier. Documents relating tu the Proceedings Leading Io the
Request by the Commillee on Applications for Review of Administrative
Tribunal Judgements for an Advisory Opinion of the International Court of
Justice in Relation Io Judgement No. 333 of the United Nations Administrative
Tribunal
A. Documents of the Twenly-Jourrh Session oJ rhe Cornmittee
4. On 21 June 1984 Mr. Vladimir Victorovitch Yakimetz presented an
Application (doc. No. 1)for a review of Judgement No. 333rendered on 8 June
1984 by the Administrative Tribunal in the case of Yakimerz ogoinsl rhe8 APPLICATION FOR REVIEW
Secretary-General of the United Nations (see Section B below). The twenty-
fourth session of the Committee was thereupon convened to consider. inter alia.
that Application (docs. Nos. 2 and 3). On 10Augusi 1984the Secreiary-General
presented his comments on the Application submiiied by Mr. Yakime17.(doc
No. 4).
5. The Commiiiee mct on 21, 22 and 23 Augusi 1984 and considered ihe
application presenied by Mr Yakimetz in closed meetings and. having con-
sidered an informal draft proposal of the Uniied Kinadom of Great Briiain and
Northern lreland (doc. NO. 5). decided to suhmit two questions to the Court
(docs. Nos. 6 and 7). According to the Rules of the Committee (doc. No. 10).
no records were kept of the closed meetings but verbatim records (doc. No. 8)
are available of the public meeting held on 28 August 1984at which the Com-
mittee adopted its decision on the application of Mr. Yakimetz and announced
the text of the questions to be addressed ta the Court ; the results of and the
participants in the votes taken during the private deliberations were also for-
mally announced by the Chairman at that meeting, and six members of the
Committee made statements for the record.
B. Other Documents Cited in or Relevant to Documents Considered
by the Committee al Its Twenty-fourth Sesrion
6. The Tribunal's Judgement, delivered on 8 June 1984, in the case of
Yakimetz againsr the Secretary-General of the United Nations is contained in
document No. 9.
7. The rules of procedure that aoverned the twentv-fourth session of the
Committee were the rules adopted at its twenty-second session (doe. No. 10).
Earlier, the Rules of Procedure of the Committee were the provisional rules it
had adopted at its first meeting, on 16 October 1956, and amended at its
meetings on 25 October 1956. 21 January 1957and 11 December 1974. At its
twenty-second session the Committee considered (doc. No. II) the Advisory
Opinion in Au~lication for Reviewof Judnement No. 273of the UniredNations
~dministrativ~ ~ribunil (I.C.J. ~i~orts 1982, p. 325) in which the Court
expressed concern about certain procedures followed by the Committee in con-
siderina that application : as a result. the Committee amended its Rules of Pro-
cedureand ado'ptedthem in definitive form (doc. No. 10).
8. Portions of two General Assembly resolutions were referred to in the
documents considered by the Committee, Le., paragraph 5 of section IV of
resolution 37/126 (doc. No. 12) and paragraph 5 of section VI of resolution
38/232 (doc. No. 13). Two documents relatina to change of visa status were
refrrred ro in ihe docunientp con,iderid by thé~ommit6e. i.e.. a 1953report
of the Fifth Commitiee on Personnel Policy (doc. No. 14)and a 1954Iniorma-
tion Circular addressed to Members of ihe Staff (dos. No. 15).
9. The Statute and Rulesof the United Nations Àdministrative Tribunal were
those in effect from 3 October 1972(doc. No. 16). The Statute and Rules have
no1been changed from the version considered by the Court in the Auulication
for Review of Judgement No. 273 of the United Nations ~dm~i"istrafive
Tribunal (I.C.J. Reports 1982, p. 325), and with the exception of the addition
of Article 26 of the Rules, are also identical to the version considered in the
Application for Review of Judgement No. 158 of the United Nations Ad-
ministrative Tribunal (I.C.J. Reports 1973, p. 166).
10. The Staff Regulations are set out in the dossier (doc. No. 17)in the ver-
sion in force as of1January 1983and the "100 Series" of Staff Rules (doc. No.
18)in the version in force as of January 1984(doc. No. 18),but al1provisions tNTRODUCTORY NOTE 9
relevant to the Application are unchanged from those in force at the lime of Mr.
Yakimetz's separation.
C. Documents' Submitred Io the United Nations Adminisirorive
Tribunal : Case No. 322 : Yakimetz againsi the Secreiary-General
of the United Nafions
II. Mr. Yakimetz filed an Application with the Administrative Tribunal on
3 January 1984 (doc. No. 191,together with 42 annexes (doc. No. 20). The
Secretary-General filed the Respondent's Answer on 14 March 1984 (doc. No.
21). Mr. Yakimetz filed observations (together with three Annexes) on the
Respondent's Answer on 13April 1984 (doc. No. 22).
B. Adnlrnrsrrarive Trrbunals Judgemrnrs Ciied rn rhe Dommenrs
Submilied IO Ihe Co~~rnrilteeor ro the Unried Narorns
Admrnrçrrarrve Trrbunol or rn Ils Jud~emenr No 333
1. Judgements of the United Nations Administrative Tribunal (UNAT)
12. UNAT Judgement No. 142 (Bhaffacharyya) (doc. No. 23) was referred
to in document No. 9, paragraph VI (Judgement No. 333) and document No.
19, paragraph 69 (~pplicani's Statement of Facts and Arguments).
13. UNAT Judgement No. 205 (El-Naggar) (doc. No. 24) was referred to in
document No. 9, paragraph VI (Judgement No. 333). document No. 21.
paragraph 15 (Answer of Respondent) and document No. 22, paragraph 4
(Observations on the Answer of the Respondent).
14. UNAT Judgement No. 310 (Eslabial) (doc. No. 25) was referred to in
document No. 1, paragraph 23 (Application 10 Committee), document No. 9,
page 8 (Judgernent No. 333) and document No. 19, paragraphs 32, 60 and 75
(Applicant's Statement of Facts and Arguments).
15. UNAT Judeement No. 326 /Fischman) idoc. No. 26) was referred to in
document No 1, paragraph 11 (Application Io ~ommitteej. document No 4,
paragraph 18(Commcnrs of Secretary-General on Application). document No.
8..uaee 12. statement of reoresen1ati;e of United tales of America fVerbarim
~ecordof ihe Fifth ~eetini of Committee) and document No. 9, paragraph XII
and paragraph 12, footnote (a), of the dissenting opinion (Judgement No. 333).
16. UNAT Judgement No. 92 (Higgins) (doc. No. 27) was referred to in
document No. 1, paragraphs 35, 36 and 38 (Application to Committee), docu-
ment No. 4, paragraph 25 (Comments of Secretary-General on Application),
document No. 9, paragraph IV. and in the Statement by President Endre Ustor
and in paragraph 9 of the dissenting opinion (Judgement No. 333). document
No. 19, paragraphs 34, 44 and 54 (Applicant's Statement of Facts and
Arguments), document No. 21, paragraphs 9 and 21 (Answer of Respondent)
and in document No. 22, paragraph 14 (Observations on the Answer of the
Resuondent).
17. UNAT Judgcmcnt 'lci.192 ILevcrk) (doc. No. 28) u.3, referred toirdocu-
ment No. 1.puagraphs 20, 31. 35. 36. 38and 39 (Application IO Commiitcc).
-
'In these documents, which were submitted Io the United Nations Administrative
Tribunal, Mr. Yakimetzis usually referred Io as the "Applicant" and the Secretary-
General is usuallyreferred io as the "Respondent'. Thesedocumentsare noted in the
openingparagraphsof JudgementNo. 333 altheTribunal(doc. No. 9)andconstitutethe
writtcnrvbrnissionsmade to theAdministrativeTribunalin the case.10 APPLICATION FOR REVIEW
document No. 4, paragraph 25 (Comments of Secretary-General on Applica-
tion). document No. 9. ~aranra~h IV. and in the statement by President Endre
Urtor and in pitragraph 9 of;he~disseniinc opinion (~ud~ement No. 333). docu-
nient No. 19,paragraphs 36. 11. 44. 54. 56. SRand 67 (Applicant's Siatemcnt
of Facts and Arnu-ents) and in document No. 21. varagra.h 9-.Answer of
Respondent).
18. UNAT Judgement No. 54 (Mauch) (doc. No. 29) was referred to in docu-
ment No. 9, paragraph XIX and in paragraph 4 of the dissenting opinion
(Judgement No. 333) and in document No. 22, paragraph 15(Observations on
the Answer of the Respondent).
19. UNAT Judgement No. 181 (Nath) (doc. No. 30) was referred Io in docu-
ment No. 21, paragraph 14 (Answer of Respondent) and in document No. 22,
paragraph 4 (Observations on the Answer of the Respondent).
20. UNAT Judgement No. 140 (Seraphides) (doc. No. 31) was referred Io in
document No. 21, paragraph 14(Answer of Respondent) and in document No.
22, paragraph 4 (Observations on the Answer of Respondent).
21. UNAT Judgement No. 95 (Sikand) (doc. No. 32) was referred Io in docu-
ment No. 19, paragraph 69 (Applicant's Statement of Facts and Arguments).
22. UNAT Judgement No. 249 (Smirh) (doc. 33) was referred Io in document
No. 9. paragraph 2 of the dissenting opinion (Judgement No. 333).
2. A Judgrnenr of the Inrernarional Labour Organisarion Adrninislralive
Tribunal (ILOAT)
23. ILOAT Judgment No. 431 (In re Rosescu)(doc. No. 34) was referred Io
in document No. 1, paragraphs 35, 37 and 39 (Application to Committee),
document No. 4, paragraphs 25 and 26 (Comments of the Secretary-General on
Application), document No. 9, paragraph XIX and in paragraphs 4 and 9 of the
dissenting opinion (Judgement No. 333), document No. 19, paragraphs 54, 57
and 58 (Applicant's Statement of Facts and Arguments) and in document No.
21, paragraphs 25 and 26 (Answer of Respondent).
Part II of the Dossier. Documents directly relating 10 the Fnrmulalion 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 Assembly
resolution 38/232 of 20 December 1983
A. Paragraph 5 of SectionIV of General AssemblyResolulion 37/126
1. Docurnenrsof rhe Thirry-fifrh Sessionof the GeneralAssembly
24. At its 35th session, the General Assembly, by paragraphs I and 2 of Sec-
tion IV of resolution 35/210 (doc. No. 35). reauested the International Civil Ser-
vice Commission (ICSC) and the Joint 1"spe;tion Unit (JIU) to study further
and suhmit reports on the suhjects of the concepts of career, types of appoint-
ment, career development and-related questions~and invited them to co-operate
in the drafting of those two reports'.
'Thesetwo reportswereto be the basisfor dircussianof theserubjecisa1the ihirty-
rccnth sessioandihrrcfurc carlirrcfcrrnceIO ihescqueriinniihroughouiihr)cm arc
noi includc8"ihcdoster hrcaureihcyihrou no Iighon ihc inlsrprcidlionof psrapraph
5of rtiiionIV of rr\oluiiun37/126.uhiih ua, adopied ar a resiiliof ihcrand Ihier
reports, al1of whichare includedin the dossier INTRODUCTORY NOTE II
2. Documenrs of the Thirly-sixth Session oj rhe General Assembly
25. In response to paragraphs l and 2 of section IV of General Assembly
resolution 35/210, the JIU submitted a report on the personnel policy options :
career concept, career development and types of appointment (docs. Nos. 36
and 37). The Secretary-General submitted comments on this report (doc. No.
38). The ICSC submitted a report, which, inrer olia, dealt in a preliminary way
with this matter (doc. No. 39. para. 17 and Annex 1). The Staff Unions and
Associations of the United Nations Secretariat submitted a report which dealt,
inter olia, with this matter (doc. No. 40, paras. 96 to 98 and 101 to 106).
26. The Fifth Committee considered these reports under agenda items 107 :
Personnel Questions, and 108 : Report of the International Civil Service Com-
mission. Summary of the discussion may be found in the reports of the Fifth
Committee on aeenda items 107 (doc. No. 41) and 108 (doc. No. 42). On the
hasir of the reio~mendationr of ;hr Tifth ~o&nittcc onagenda item; 107and
108iheGencral Ajscmbly on 18I>ecrnibcr 1981respccti\zly adoptcd recolution
-~/2~ ~idoc. So. 131and,d~ ~ ~on 36,457 tJoc. N..~ ~). hi uhi,. . itJecided to
discuss at its thirty-seventh session the subjefls of concept of career, types of
appointment, career development and related questions'.
3. Documents of the Thirly-seventh Session of Ihe General Assembly
27. At the 37th session of the General Assembly, the Fifth Committee had
before it the eighth annual report of the ICSC (doc. No. 45). a note by the
Secretary-Generaltransmitting the comments by the Federation of International
Civil Servants' Associations (FICSA) (doc. No. 46), a note by the Secretary-
General transmitting the JIU'S second report on the career concept (doc.
No. 47) and the comments of the Administrative Committee on Co-ordination
(doc NO. 48). 'Cltereport of the ICSC as a hhole war con,idercd by the Tifth
Committeç under agenda item 112 ("Report of the International Ci\.il Service
Commission") and Cheportions dealing with its study on the concepts of career,
type of appointment, career development and related questions were also con-
sidered by that Committee under agenda item III ("Personnel Questions"). The
Fifth Committee considered item 112 at ils 28th. 29th, 31st, 35th. 36th. 40th,
42nd, 43rd. 44th, 63rd, 64th and 67th meetings and item III at its 23rd, 25th.
26th. 27th. 28th. 30th, 31% 32nd, 33rd. 34th. 36th, 37th, 38th. 40th, 41st. 43rd,
47th. 49th, 53rd, 56th. 58th. 63rd. 65th and 70th meetings. However, only the
following meetings are relevant to paragraph 5 to section IV of resolution
37/126: 23rd meeting (doc. No. 49, paras. 10 and II). 26th meeting (doc.
No. 50. paras. 25 and 30). 27th meeting (doc. No. 51, paras. 15and 16), 28th
meeting (doc. No. 52, paras. 37, 38, 43. 44 and 45), 29th meeting (doc. No. 53,
para. 42). 30th meeting (doc. No. 54, para. 47), 31st meeting (doc. No. 55,
paras. 2, 14, 24, 30, 42 and 52), 33rd meeting (doc. No. 56, paras. 13and 14),
'The FifthCommitteehadconsidereditem 107ai its35th.36th.40th.41st,43rd, 45th.
4hh IO 55th. 5hh to 61sr.65th. 67th. 68th. 7151to 73rdand 75ihmeetingr and item 108
ai its 31~1,34rh to 36ih, 38th. 40th. 43rd. 45th. 49th. Slrt, 53rd. 61~1,68th and Slst
meetings.Therediscurrionrdid notdealwith the substance of the reportson concept of
career. typesof appointment,careerdevelapnlentand relatedquesiionsrubmitted 10 it
but referredprirnarilyta thequestionof co-ordinationbetweenthe JIU and the ICSCin
thepreparation hythe ICSCof ilssubstantivereportta besubmitiedto the thirty-seventh
sessionof the GeneralArrembly.There records are no1includedin the dossieras ihey
throw no lighton the questionsrubmitied to the Court.12 APPLICATION FOR REVIEW
34th meeting (doc. No. 57, paras. 44, 50 and 61), 36th meeting (doc. No. 58,
paras. 12,29and 30), 37th meeting (doc. No. 59, paras. 3 and 14),40th meeting
(doc. No. 60, paras. 4, 60 Io 62. 77and 96), 43rd meeting (doc. No. 61, paras.
13, 17and 48). 44th meeting (doc. No. 62. paras. 15to 16). 63rd meeting (doc.
No. 63, para. 15)and 67th meeting (doc. No. 64. paras. 7 to 10).
28. A draft resolution sponsored by Canada, Finland, Ghana, Norway,
Pakistan. Panama and Sweden Idoc. No. 65) was considered bv the Fifth Com-
mittee. tðer with several ammdments having no bearing on paragraph 5 of
section IV of resolution 37/126 (doc. No. 66, para. 4). At ils 67th meeting, on
13 December 1982. the Fifth Committee adooted the draft resolution as
amcndcd (doc. No. '66.para. 5) ï.he Gencral ~irembly considcrcd the report
otthe Fifih Commiitec (doî. Ko. 66)ar ils 109thmeeiing. on 17Deicmber 1982.
and adopicdthedrafi resolution u.itliout any debatc (doc. No. 67. pp. 26 1027).
B. Paragraph 5 of Section VIof General Assembly Resolution 38/232
Documents of the Thirty-eighrh Session of the General Assembly
29. At the 38th session of the General Assembly. the Fifth Committee had
before it the ninth annual report of the ICSC (doc. No. 68). The Fifth Commit-
tee considered this reDort under agenda item 117 ("United Nations Common
System") at ifs 28th, jlst, 33rd, 3&h, 41% 42nd, 49th, 50th, 6Ist, 62nd, 65th
and.67th meetings. Comments made in the course of the discussion on the sub-
ject relevant Io paragraph 5 of section VI of General Assembly resolution
38/232 are reflected in the summary records of the 31st meeting (doc. No. 69,
para. 56). 33rd meeting (doc. No. 70, para. 35), 38th meeting (doc. No. 71,
para. 73). 42nd meeting (doc. No. 72, para. 12), 61st meeting (doc. No. 73,
para. 8) and 66th meeting (doc. No. 74, paras. 38 and 41).
30. At the 61st meeting of the Fifth Committee, on 12 December 1983,the
reoresentative of Canada introduced a draft resolution s~onsored hv Australia.
~bstria, Caiiada. Denmark, Egypi. Norua).. Pakistan. ~uedrn and ~cnczucla
(doc. No. 75). Scrcral ;rmcndments IOthedraft resolution werc submitted, nonc
havine anv bearine on oaraeraoh 5 of section VI of resolution 38/232. At ils
66th meeting, on ï5 ~ecember'l983, the Committee adopted the draft resolu-
lion as amended (doc. No. 76, para. 12). The General Assembly considered
the report of the Fifth Committee (doc. No. 76) at its 104th meeting, on
20 December 1983,and adopted the draft resolution without any debate (doc.
No. 77, pp. 32 to 33). CONTENTS OFTHE DOSSIER
Pari 1of the Dossier. Doeumentation relatine to the Proceedines Leadine to the
Request by the Cornmittee on ~pplicati&s for Review oi ~drnini';trative
Tribunal Judgements for an Advisory Opinion of the Inlernali~inal Court of
Justice in Relation to Jud-ement No. 333of the United Nations Adrninistratite
Tribunal
A. Dorumenrs O/ rhe Twenry-Joiirrh Session oJ rhe Cotnmirree on
ApplIrarions /or Hevrrw oJ AdminIsrralivr Tribunal Judge~~ienrs
A/AC.86/R.I 17
23 July 1984.
1. Application of Mr. Vladimir Victorovitch Yakimetz dated 21 June 1984
APPLICATION
The Applicant, Vladimir Victorovitch Yakimetz. in respect of whom Judge-
ment No. 333 was rendered bv the United Nations Administrative Tribunal.
hereby makes application to the Cornmittee to request an adtirory opinion of
the International Court of Ju\iice on the following groundr :
1. The Tribunolliasexceededirs jurisdiclion -. Paragraphs 1-5.
(a) The Tribunal has no competence to widen the discretionary powers of the
Secretary-General, to diminish the contractual rights of staff members, or
to substitute its own judgement for that of the General Assembly.
(b) The majority Judgement sanctions the Secretary-General's denial to the
Anolicant of reasonable consideration for a career aooointment. as man-
dakd in General Assembly resolution 37/126, paragraeh IV.5 This has the
effect of incredsing ihc di~rrctionary auihority of the Secreiary-General. a
discretion soecifi&llv abride-. bv the General Assemblv. a.. denvina .he-
Applicant 1;iscontra&al right.
II. The Tribunal has failed to exercisejurisdiction vesled in it.
Paragraphs 6-16.
(a) The Applicant sought the right to be considered for a career appointment,
a ri-ht eranted him bv General Assemblv resolution 37/126. bv virtue of his
six yearsof continuing good rervice. ~h; Respondent denied him this right.
under the impression that a leaal irnoediment evisted in his case and that he
could not~ ~~treated like "iost staff members with com~arable service
records" ; because his last contract was concludedon' the basis of
secondment.
Since there was no question of an extension of secondment,the Applicant
requested the Tribunal to determine wbether a legal impediment existed Io
his further emolovment.
(b) Only the dissenti& opinion addressed this threshold question. The majority
Judgement failed to examine it. The Tribunal has therefore failed to exer-
cise the jurisdiction vested in it14 APPLICATION FOR REVIEW
111'.The majority Judgemenr of the Tribunal errs on quesrions of law relating
ro provisions of the Charter Paragraphs 17-33.
(a) The Judgement conflicts with Article 101.1.
lbi The Judaement conflicts with Article 100.1.
(CJ The ~udgcmeni conflicis with Article 101.3.
/dl The Judgçmeni conilicir with Article 8.
(ej The Judgement conflicts wiih Article 2.1.
IV. The Tribunal has commitled fundamenlal errors of procedure which have
resulred in a miscarriage of jusrice. Paragraphs 34-43.
(a) The Tribunal has departed from its own previously enunciated principles
and doctrine. and those of the IL0 Tribunal.
(b) The Tribunal has interposed, sua sponte and with prejudice. issues outside
the scope of the case before it.
1. The Tribunal Has Exceeded ifsJurisdiclion and Compelence
1. The Tribunal is competent to pass judgement upon applications alleging
non-observance of contracts of emolovment of Secretariat staff members. or of
their terms of appointment, which'inciude al1pertinent regulations and rkes in
force at the time as well as the provisions of the Charter. Ithas no competence
to widen the discretionarvoowers of the Secretarv-General. to diminish the con-
tractual rights of staff &Abers, or to substitute.its own judgement for that of
the General Assembly.
2. General Assembly resolution 37/126, paragraph IV.5. followed by resolu-
tion 38/232, VI, 5, conferred certain rights on fixed-term staff members who,
"upon completion of five years of continuing good service shall be given every
reasonable consideration for a career appointment" (emphasis added). The
choice of "shall ben rather than "may be", means that this provision is man-
datory. The General Assembly did not give the Secretary-General discretion to
givereasonable consideration to some and not to others. As the dissenting opin-
ion points out, the International Civil Service Commission specifically con-
sidered the case of staff on secondment, and did not exclude them from this
right. In the absence of any provision to the contrary, it may be assumed that
the General Assembly intended the normal machinery for considerning can-
didates to be employed, viz. the Appointment and Promotion Bodies.
3. All three opinions agree that the Applicant was not afforded every
reasonable consideration. The majority judgement expresses its "dissatisfac-
tion" at the failure of the Remondent to record that he had given e-erv
reasonable consideraiion: the concurring statcmeni says he was noi eligiblç for
such consideration; and the disseniing o~in~on \ays he u,as illegallydenied his
right.
4. Paragraph XVllI of the Judgement states that "the Respondent had the
sole authority to decide . . . whether the Applicant could be given a career
appointment". The majority, therefore, widens the Secretary-General's discre-
tionary powers to decide which fixed-term staff shall and which shall not-becon-
sidered for a career appointment-a discretion that was abridged by the man-
datory term used in resolution 37/126. The majority denies the right of the
Applicant, after six years of continuing good service, to reasonable considera-
tion, thus altering and diminishing his contractual rights.
5. The maio> .v Judeement. therefore. encroaches uoon the oowers of the
General Assembly, and retroactively curtails the Applicant's terms of appoint-
ment. The Tribunal has neither the jurisdiction nor the competence todo so. CONTENTS OF THE DOSSIER 15
II. The Tribunal Has Failed ro Exercise Jurisdicrion Vesredin II
6. The Applicant served a total of II years under three fixed-term contracts
at the United Nations. His first fixed-termcontract was from 1966to 1974, his
second was from 1977 to 1982, and his third was from December 1982 to
December 1983.All the P-Il application forms filled in by him for these con-
tracts were submitted to the United Nations bv the USSR Ministrv of Foreian
Affairs.Under item 29, which asks "Are you niw. or have you eveLbeen. a p&-
manent civil servant in your Government?". he answered "No". Under item 28,
which asks "Have you anv obiections to Our makinr inouiries of vour oresent
employer?", he aniwered-"~o". His lirst two ~ett'rso'f~ppointment; under
item 5, "Special Condilions", carried the notation "None". His third one-year
contract. continuous with the second. stated under "S~ecial Conditions": "on
secondment from the Government ofthe Union of soliet Socialist Republics."
7. In February 1983,whilethis latter contract was in force, he resigned from
ans positions he might have held in his Government. Althouah initially barred
fr& entering United Nations premises, he continued to perform hisduGeswith-
out interruption and served out the remainder of his contract in the DC-2
buildina. Havinr rendered six vears of continuine eood service. the Aonlicant
soughtihe righc in terms of Genera~Assembly ~eiolution 37/126, pa&raph
1V.5,to reasonableconsideration for a career appointment, like any oiher staff
member with an excellent service record. ~he Resoondent denied him the
request, under the impression that a legal impediment existed in his case and
that he could not be treated like "most staff membcrs witb comparable service
records. because v.ur o.esent contract was concluded on the haCs of a sec~ ~ ~ ~
ment frhm your national civil service" (Judgement, pl 49, infra).
8. Legally the only effect of his resignation was to relieve hisGovernment of
any obligation to preserve a post for him with such promotion and retirement
benefits as may have accrued. Neither the Respondent nor the Tribunal main-
tained that his resignation constituted any violation of his contract with the
United Nations. Sinee he no longer had an employment relationship with any
releasing organization there could have heen no question whatsoever in the
mind of the Applicant, the Respondent, or the Tribunal of an extension of
secondment.
9. The Applicant therefore requested the Tribunal to determine whether any
leaal imuediment existed Io his further United Nations emolovment after the
epiry of hi\ contras1 on 26 Decembrr 1983.In other word., &d'the Respondent
err inhi\ belielrhat hai,ingonce scrvcd under a contraci labelled "srcondment".
the Applicant was thereby permanently disabled from further United Nations
service under any other form of contract or appointment. It was well within the
Tribunal's jurisdiction to make such a determination.
10. The majority Judgement of the Tribunal completely omits this threshold
question from the legal issues Io which it addresses itself. Paragraph 1of the
Judgement lists the issues with which it deals :expectancy, General Assembly
resolution 37/f26I,V, and "the consequences of the application of United
Nations rules and regulations in relation Io the United States law on resident
status and citizenship" (an issue not raised by either Applicant or Respondent,
and further discussed in section IV (b), infra).
II. The majority Judgement finds (para. V) that a Iixed-term appointment
normally'carries no expectancy of renewal or conversion to ans other tyr>eof
appointment. This wasnever h dispute. In paragraph XI1 the ~ud~emenicon-
cedes that "he could, in the jurisprudence of the Tribunal, have in certain cir-
cumstances expectation of one kind or another for an extension" if his fixed-16 APPLICATION FOR REVIEW
term contract were not based on secondment. The Judgement concludes (para.
XIII). that a secondment cannot be modified except with the consent of the
three parties involved. The concurring statement goes further and says that a
secondment cannot be extended or converted without the consent of the
Government concerned.
12. The Applicant has no dispute with the statement that a secondment can-
not be extended or modified without the consent of the three parties involved.
At no time, after 10February 1983,did he or the Government of the USSR seek
an extension or modification of secondment.
13. The majority Judgement examines, and rejects, the Applicant's conten-
tion that the contract of emnlovment sinned on 9 December 1982was modified.
on or alter 10 February 1983 by agree&ent betueen the parties. On that date
hc norificd the Kespondent of a change in his statur incon\istent wiih the
"Speciol Condrrions". The Respondent. by permitting him to serve out hi, son-
tract. accrpted the modification.
14. But nouherr docs the majority Judgement examine the Applicant's status
alter the expiry of his contrast on 26 I>cïemhr.r 1983.He ivasslenrly not cligihle
ior an extension ol rc~ondment. nor would he haie ;un\cnied to one. iiy
S,~ecrolCondirions in one sontract are sotsrminous wiih tliai conirasi. and haie
no binding force on either party after the contract has expired. The Applicant
contended that no legal impediment existed after that date to his further
employment.
15. Onlv the dissentina ooinion examined the central leaal issue oosed bv
this appeai, and concluded'that since the secondment contract &ded on
26 December 1983,and since there was no possibility of further government ser-
vice. "the onlv effect of a suooosed oreclusive aareement (exnressed or imv.ied).
would have bien to prevent iie ~pplicant frombeing employed, then or at any
future time, by the United Nations. however valuable or necessary his services
might be. It cannot be believed that the Respondent would ever have been a
party to so unreasonable an agreement, bearing in mind the provisions of Arti-
cle 101.3 of the Charter . . ."
16. The Tribunal majority has therefore failed to exercise the jurisdiction
vested in it.
III. The Mojoriry Decision Errs on Questions of Law reloring Io
Provisions of rhe Charter
(a) The Judgemenr conflicts wirh Article 101.1
"The staff shall be appointed by the Secretary-General under regulations
established by the General Assembly."
17. As the sovereign law-making body of the United Nations, the General
Assemblv's powers are limited onlv by the provisions of the Charter and the
inviolabiiityof existing contracts ofser;ice. li is the Secretary-General's respon-
sibility to embody the resolutions of the General Assembly in rules and
administrativeinstructions of eaual avvlication to all. General Assembly resolu-
tion 37/126, paragraph IV.5, was a mandate, not a "desideratum". nie word
used was "decides", not "requests" or "recommends". It was the duty of the
Resoondent to devise and nromuleate aoorooriate machinerv to ai.e ef-ect to
this'mandate, and it was nit the r~spons.ibili~yof the Applicant, as paragraphs
XV and XVI of the Judgement imply, to drawthe Respondent's attention to the
resolution in question.
18. Only the dissenting opinion considers whether the Respondent gave due CONTENTS OF THE oossiER .17
effect to his Charter oblinations in respect of this resolution, and concludes that,
due IO errors of fact and lau. hr didnot. The majority Judgement concludes,
withoui supporting eiidence. thai the Rerpondent himself gave "cvery
reasonable consideration" 10 the Applicant's candidacy (para. XVI). holds that
~~-had disc~ ~i~ ~~v~nowers to do so (vara. XVIII). and then rebukes him for
not stating that hé had done so (para. XVIII).'T~~ concurring statement
exempts him from any resp~.sibility for giving -ffect-to the General Assembly's
mandate.
19. The majority Judgement, therefore, is inconsistent with Article 101.1,
and an advisory opinion should be sought.
(b) The Judgement conflicts with Article 100.1
"ln the ~erformance of their duties the Secretary-General and the staff
shall not seek or receive instructions from any government or from any
authority external to the Organization . . ."
20. Only in a secondment may the Secretary-General seek or receive instruc-
tions from any government or from any other authority external to the
Oreanization. and then onlv in reauestine the rel-ase of the em~lovee. In al1. .
orher maiters relaiing io promoiion, appointnieni. deploymenr or separation of
\taIf. the Secreiars-General may con3ider the i,ieus of go,,ernmcnt5. along wiih
-t~ ~ relevant considerations. but mav not he bound bv them. "ln the absence
of a secondment agreed to by al1the parties concerned ... the Respondentcan-
not legally invoke a decision of a government to justify his own action with
~~eardto ihe emnlov.ent.of a staff member:' rlevcik. para. 5.) Where the con-
di;ions preiedçnt for a secondment arc no1 thé~ecretjry-~eneritl may
nui. con.;i\tently. with Ariiile 1Wof theCharter, seek thesonsent of an exiernal
authority. ~mong the conditions precedent for a secondment are a continuing
relationship of employment between the staff member and the releasing
organization, and the consent of thestaff member Io the arrangement. After his
resignation on 10 February 1983 neither of these conditions precedent existed
with respect to the Applicant. Therefore a further secondment, or an extension
of secondment was out of the question.
21. In his letter of 21 Decemher 1983, the Assistant Secretary-General for
Personnel Services wrote that the Applicant could have no expectancy of
renewal "without the involvement of al1the parties originally concerned". 60th
the spokesman for the Secretary-General and his Executive Assistant, in
statements made Io the press and given Io the Tribunal, but not referred Io in
the Judgement, stated that his further employment was impossible without the
consent of ~ ~~ ~ ~-~SR Gove~n~e~t~ ~ ~ ~rom findine these stat-ments to be
legally erroneous, the majority Judgement endorses them. Paragraph Xlll says
that the Applicant was under secondment which "could not be modified except
with the consent of al1three parties". The concurring statement says there codd,
be no extension or conversion to another type of appointment without the con-
sent of the Go\,ernment concerned.
22 TheTribunal majority make\ no attempt io reconcile the\e views with the
express prohibition of Article 100.and thcrcfore an advi\or) opinion should be
sought,
(c) The Judgemenl conflicls wiih Article 101.3
"The paramount consideration in the employment of the staff and in the
determination of the conditions of service shall be the necessity of securing
the highest standards of efficiency, competence and integrity." CONTENTS OF THE DOSSIER 19
Member States are under an obligation to recognize the exclusivelyinternational
character of the Secretary-General's responsibility in al1staff matters, as set out
in Article 100, and to impose no conditions in conflict with this responsibility.
30. Since other staff members have accepted career appointments after
resi~nine from their eovernments. have chaneed nationalitv. have been offered
regilar ~ppointment;after a period of secondment, and sinceGeneral Assembly
resolution 371126, paragraph IV.5, confers the right to reasonable considera-
tion on al1staff who haie rendered five vears of continuous eood service under
fixed-termcontracts, the principle of soGereignequality wou'iddemand that no
nationality may be either burdened by additional restrictions, or favoured by
special treatment.
31. The Tribunal was aware that some Governments "have informed the
Secretary-General that they expect to be routinely consulted about the employ-
ment of anv staff members or certaincatee-ries of staff members . . ."and that
"with respect Io the nationals of some States, the applications are almost always
received from the national missions of their Governments. This is the case with
respect to mou Eastern European countriç>." (Tribunal Judgemenr No. 192.
Levnk, para. lx.) The Tribunal alro noies. ihat in the instant case "evidence
was available that the USSR authorities werecontemolating reolacin~the Anoli-
cant by another person whom they had already selected ald whom they wiihed
Io be trained further by the Applicant. It was suggested to him that he should
leave for Moscow early in 1983for this purpose, but his application for leave
was refused by the United Nations" (para. XI, Judgement No. 333).
32. The Tribunal failed to consider the conflict between Ibisevidence and the
orinciole of sovereianeouality (or indeed of the orincinle of non-interference of
~rt. i'00.21.No poyi should be the exclu~ive of any member Sriite or
group of Srales. No nation may claim spçcial ireaiment within the Srcretariat,
or intervene in the contractual arrangements between a staff member and the
United Nations.
33. Therefore, the Judgement raises substantial questions of law as to the
applicability of Article 2.1 within the Secretariat, and an advisory opinion
should be sought.
IV. The Tribunal Has Commirted O Fundamental Error of Procedure
Which Has Occasioned a Failure of Jusfice
(a) The Tribunal has failed Io follow ils own precedenr
34. The United Nations Tribunal. the IL0 Tribunal, and the other courts
of international administrative law have. over the years. built up a body of
jurisprudence on which the Administration relies in interpreting its obligations
and to which Aoolicants turn for doctrine and orinciole when seekinga remedy.
In the past, ~rib"na1 judgements have followed theirown precedents; Newcases
have been either reconciled with, or distinguished from, cases that have gone
before. To depart from this method constitutes a procedural error amounting
to a failure of due process.
35. Two major decisions of the United Nations Tribunal, and oneof the IL0
Tribunal. have dealt sauarely with the leaal relationshios created by a second-
ment contract. ~udgemenl NO. 92 (~iggins) distinguishes three kirids of staff
movements: "transfer", "loan" and "secondment". "Transfer" is "the move-
ment of a staff member from one organization to another, with the agreement
of both organizations, and the staffmember concerned, on the understanding
that the releasing organization will be under no obligation to accept his return20 APPLICATION FOR REVIEW
IO it". "Loan" is "the assignment of a staff member from one organization
to another for a limited neriod. durine wh-ch he will be subiect to the
administrative supervision of the receiving organization but will continue to be
subject to the staff regulations and rules of the releasing organization." Under
a "secondment" the staff member is "subiect to the staff regulations and rules
of the recei\,ing organizaiion. but will reiain his rights of ëniploymeni in the
releasing organization". Hlgg~nsconcerncd an inter.agency secondment United
Nations Tribunal Judrement No. 192 lLeircikl and Judrmcni No. 431 of the
11.0Tribunal, In re~isescu. hoth concerned sl'afimembers u,hose goiernmenls
refused io consent io contraci extensions. In a11ihree cares the Tribunals cun-
cerned unheld the ri-hts of the "seconded" staff members. whose consent to the
arrangement, iheg held, \vases,ential. In al1ihree cases thcy iiwarded compensa.
[ion IO the injured siaif member: in the case of Ili~yins, for prolonged doubis
and uncertainties; in the other two cases, for losses suffered due to the non-
renewal of their fixed-term contracts.
36. Higgins made it clear that the receiving and the releasing organizations
cannot varv the terms of a secondment without the consent of the staff member
concerned. Levcik closely scrutinized the communications and memoranda sur-
roundina the An~licant's annointment and concluded that no valid secondment
look plice: "~he ~ribunaldoes noi ha\,e io consider the arguments pre,enied
by the Applicant regarding eiihcr the nature of the legal relsrionship beiueen
a secondcd official and his nstional authorities or the situation arising uhen thai
legal relationship ceases to exist during the period of secondment" ipara. XVI,
Judgement No. 192).
37. The IL0 Tribunal in the Rosescu case did consider a situation where
the legal relationship between the complainant and his national authorities
had ceased Io exist. Not only did the Tribunal find no duty on the part
of the oraanization to limit the duration of the comnlainant's services to the
period ofhis iniiial contraci. but also ii found no obligation it, '.deferIO the
uill of the Romanian authorities". Such deference ihey found tribe a miruse of
authority.
The relevant paragraph States:
"The executive head of an organisation is bound at al1times to safeguard
its interests and, where necessary, give them priority over others. One area
in which the rule annlies is staff recruitment. If a director-eeneral intends
IO appoint to the sGff someone uho is a gokernnieni offisisl in a member
Staie he will normally con\uli the memhcr State. %\,hichmay wirh io keep
the official in ils service. Similarly, if sush a government official'* appoint-
ment is io be extended. ii is reasonable that the organisation should again
consuli the member Siaic. which ma). hate good reason io re-entploy him.
This does not mean that a director-generaÏmust bow unquesti6ningly to
the wishes of the government he consults. He will be right to accede where
sound reasons for opposition are expressed or implied. But he may not
forgo taking a decision in the organisation's interests for the sole purpose
of satisfying a member State. The organisation has an interest in being on
good terms with al1 member States, but that is no valid ground for a
director-general to fall in with the wishes of every one of !hem." (Para. 6.
Judgment No. 431.)
38. Judgement No. 333 is a complete departure from this line of precedent,
and makes no attempt to reconcile its conclusions with those of nrevious
judgements. The maj6rity Judgement cites Higgins and Levrik only & define
the nature of secondment, not in reference to the rights of the staff member. CONTENTS OF THB DOSSIER 21
The concurrine statement reauires onlv the consent of "the Government con-
cerned", with no mention whatsoever of the consent of the staff member. The
concurring statement also makes reference Io "the circumstances in which he
elected to bieak his ties with his countr.. Le...his resi-nation\,.as dis.ualif2-ne
him for career employment. Thus in two sentences, the concurring statement
effectively redefines "secondment", making it identical with "loan".
39. Rosescu is noted in oassine. in oaraaraoh XIX. anoarentlv in the context
. -
of the discretionary power; of th'é~ecretary-deneral,'al~60ugh&e criteria used
are markedly divergent. The concurring statement refers to "doctrine"
developed by the Tribunal which precludes "conversion to any other type of
appointment without the consent of the government concerned". As the dissen-
ting opinion points out, no such preclusi\,e agreement can be inferred from
Higgins or Levcik and most certainly not from Rosescu.
(b) The Tribunal has interposed, sua sponte and wifhprejudice, issues outside
the scope of the case before it
40. At no time material to this case was the issue of a change of residence
status or citizenship presented. The Applicant did not request permission to
waive certain privileges and imrnunities because the occasion to do so had not
arisen during his service, and there is no precedent for permission to sign such
a waiver before the expiry of a fixed-term contract. The Respondent did not
base his denial of reasonable consideration for a career appointment on a pos-
sible future change of citizenship (a change which has not, to the date of this
writing, occurred). There is ample precedent for the Appointment and Promo-
tion Board considering a candidate for appointment pending a change of
citizenshio. The Personnel Data Unit routinelv comoiles an "Annex to
~ationaliiy Statistics : Changes which have occuried in Staff in Posts Subject
to Geographical Distribution". Changes of nationality/visa status appear as
"Gain" or "Loss" in the aoorooriatecountrv auota. The Annex for the nine
months from 1 July 1983'io jl March 1984'shows six such changes. The
previous year records seven changes; the year before ten; and so on.
The onlv action of the Aonlicant of leeal conseauence to the Tribunal's
deliberatiohs was his resignatjon from any positions he miiht have held in his
national government. Many staff rnembers have at one time or another resigned
from government service, an action which is quite consistent with and a noÏmal
preliminary to seeking a career appointment.
41. The Tribunal raised the issue of citizenship change sua sponle. Paragraph
I of the majority Judgement lists it as one of the three legal issues before it.
Paragraph XII cites the recently decided Fischman case and quotes a "widely
held helief" 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 clairn to
fulfil the conditions governing employment in the United Nations."
The same paragraph goes on to Saythat in the case of the Applicant "there was
apparently no immediate problem" of a waiver. Since there was no immediate
problem, the paragraph quoted was irrelevant and prejudicial. The dissenting
ooinion emohasizes the caution with which the view should he treated. The
discussion &as in a context of geographical distribution, and the same 1953
Fifth Committee report records that proposais inconsistent with that view were
also put forward, one accepted by majority vote.22 APPLICATION FOR REVlEW
42. Theconcurrinr statement cites this "widely held belief" as thourh it were
legal prohibition on cligibiliry ior iori\iderariIO.even niore prej~dicyaleffcct.
The se:ond paragraph of the soncurring siaicmenr implics that anyonc who
resigns from a government office is not fit to be an international civil servant.
No support for this view can be found in the Charter, the Staff Rules and
Regulations, or the practices and procedures of the United Nations, and no
orevious iudrement of the Tribunal has oroduced a doctrine so restrictive.
43. A dei,iaiion irom csisbli>heJ juri~~rudencc on which rhc Applicanr ha5
pla~cJ relisne, and the iiiirudu:tiun<ifprcjudicial clcmcnis iioi propcrl) bcforc
them, constitute a failure of justice.
For these reasons the Applicant respectfully asks the Committee Io request an
advisory opinion of the International Court of Justice.
(Signed) Vladimir YAKIMETZ,
Applicant.
(Signed) Diana BOERNSTEIN,
Counsel for Applicant.
20 July 1984.
2. Information Circular' A/AC.86/INF/23
3. Agenda for the Twenty-fourth session' A/AC.86/R.I 16
A/AC.86/R.118
10 August 1984.
4. Comments of the Secretary-General on Applicant's
Written Statement (A/AC.86/R.117)
1. The case before the Committee involves a decision by the Administrative
Tribunal upholding the non-renewal by the Secretary-General of the appoint-
ment of a staff member whose fixed-term appointment had expired. The
Secretary-General, after himself fully considering al1the facts of the case, had
concluded that offering a new appointment to the staff member would not be
in the interests of the United Nations. The Tribunal confirmed that the
Secretarv-General's decision did not violate the staff member's riahts. The
~ribunai was unanimous in finding that the Applicant had no expectancy Io fur-
ther employment (Judgement, para. VI; statement by Mr. Endre Ustor, para.
1. and dissentine oninion of MI. Arnold Kean. oara. 1).nd. .. a maioritvl held
that the ~pplicint'received the considerationior a career appointment ihat he
Document no1 reproduced. [Nore by rheRegisrry.] CONTENTS OF THE DOSSIER 23
was entitled to pursuant to General Assembly resolution 37/126, section IV,
paragraph S. in which the General Assembly had decided "that staff members
on fixed-term appointments upon cornpletion of five years of continuing good
service shall be given everyreasonable consideration for a career appointment"
(Judgement, paras. XIV-XVIII, and statement hy Mr. Endre Ustor, paras. I
and 3).
2. The staff member has now objected to the Tribunal's Judgement, basing
his obiection on al1four of the erounds set forth in Article II of the Tribunal's
tat tut ;nd asking the ~ommittee to request an advisory opinion of the Interna-
tional Court of Justice on the matter Houevcr. the dispute beiween the parties
is essentially whether the Applicant was given "every reasonable consideration"
for a career appointment pursuant to General Assembly resolution 37/126, sec-
tion IV, paragraph 5. The question of what the General Assembly meant by
"every reasonable consideration" in one of its resolutions is not oneof the four
grounds upon which this Committee can request the International Court of
Justice for an advisory ooinion.
3. The ~es~ondent~submits that there is no basis-much less a substantial
basis-for the application on any of the grounds which are now king alleged
and further submits that the Administrative Tribunal has orooerlv exercised its
,urirdiction and competenre. that ithascorrestly interpret;d the applicable pro-
vision, of the Charter of the Unitcd Nations and that itdid not commit an error
of procedure which could have occasioned a failure of justice in this case.
I. The Tribunat Properly Erercised Ifs Jurisdiction and Compe!ence
by Hearing the Applicarion and Adjudicaring upon rhe Claim
4. The Applicant alleges that the Tribunal has both exceeded ils jurisdiction
and competence and, at the same time, has failed to exercisejurisdiction vested
in it (see Application, secs. 1 and II, paras. 1-16).
5. The Respondent has some difficulty in following these inconsistent asser-
tions sincetheTribunal is "com~etent to hear and oas. iud.-ment uoon annlica-
tions alleging non-observance'of contracts of employment" (se; ~rt1.2 of
Tribunal's Statute) and this is precisely what the Tribunal did. The fact that a
oartv disanrees with the iudeement of the Tribunal and with its failure to act
iavourably on his applicati& does not lead to the result that the Tribunal's
judgement constituted either a failure to exercise jurisdiction or exceeded that
jurisdiction.
6. The Applicant argues that the Tribunal exceeded its jurisdiction because
it widened the discretion of the Secretary-General in that it permitted him to
ignore General Assemhly resolution 37/126, section IV, paragraph 5, of
17 Decemher 1982 regarding "every reasonable consideration" for a career
appointment fo be giventostaff members on fixed-term appointments after five
years of continuing good service (Application, sec. 1, paras. 2-5).
7. The Respondent submits that the Tribunal might exceed ilsjurisdiction if
it were to consider a case brought by a person other than a staff member or con-
aider a claim hased on a ground other than an alleged non-observance of a
contract of employment. However, merely deciding a case properly brought
before it bv a former staff memher. whether the decision is favourable or
unlai,ourabie, is not an excessof jurisdiciion. In any event. thc Tribunal did not
ignore General Asseiiibly resolutiun 37/126 but in fact applied iiand concluded
that the Secretary-General orooerly exercised his discretion to consider the
Applicant for a career appointmeni (Judgement, paras. XIV-XVIII).
8. The Applicant alsoargues that the Tribunal failed to exercise ils jurisdic-24 APPLICATION FOR REVIEW
tion because it did not determine whether there was any legal impediment to his
further appointment (Application, sec. II, para. 9).
9. The Resoondent submits that while the Tribunal mieht fail t- exercise its
jurisdisiion by erroneously tailing 10takc a rÿse propcrly submitted io il. a mere
failurc IO find in favour of ihe Applicant is noi a failure IO exerciw juri~diction.
In anv event. it is clear that the Tribunal did consider the Aoolicant's argument
favourably ab irheld rhai the Applisant \rai eniitled to rcasonable consideration-
for a carcer appoinrment and thai he uas in fact givcn ruch sonsideration
(Judeement. para. XVIII)
IO: The ~ea~ondcnt observes ihai ihc Internaiional Codri of Jusiiic ha\
re2cnrlgemphasiled thai the findingi ot the Tribunal in a decirion on ihc impori
of Siaff Rer-laiions. Siaff Rules and Gencral As,emblv rcsolutions do no1 raise
a question of jurisdiction:
"lt can hardly be denied that Mr. Mortished's appeal to the Tribunal,
hased as it was upon the various provisions of the Staff Regulations and
on Rules established bv the Secretarv-General in Dursuance of tbose Staff
Regulxion\. corresponds direiily with both the iords and spirit of Arii-
(le 2 (of the Tribunal'\ Siatuic). Iiis diiiiiuli io \cc any possible ground
on uhich the Tribunal could bc sîid io have criecded ihc icrms 01' ils
jurkdiction or compeienïe rhuc dcfincd. Ii soughi io inizrpret and apply
ihc ternis of Mr. Slortirhcd's appointmeni and the relcvant Stal'f Reaula-
tions and Rules and General ~Siembly resolutions .. . Whether or iot it
was right in its decision is not pertinent to the question of jurisdiction."
(Application for Review of JudgementNo. 273 of the United Nations
Administrative Tribunal, Advisory Opinion of 20 July 1982, I.C.J.
Reports 1982, para. 78.)
II. The Respondent submits that it is therefore clear that the Tribunal pro-
oerlv exercised its iurisdiction and competence under Article 2 of its Statute
hhcn it hcard and pascd judgement on-the Application in the manncr which
is reflccted in itr judgement in ihis cas. Irdid noi refuse to eirerrirc ii,juridic-
tion and. by concludina that the Auulicant had no entitlement to further
employm-zn~, could har2ly have exceeded its jurisdiction since this was the
matter at issue.
II. The Tribunal Has Correctly InrerpretedApplicable Provisions
of the Charter
12. In its judgement in the case, the Tribunal found that there was no expec-
tancv for renewal and held that the Secretarv-General had the sole authoritv to
dccide whethcr ihc Applicani should bc g.ran;ed a carccr appointmcnt and, aiter
cxamining al1 the cir~umstanccs which ihe Secrctary-ticneral had iakcn inro
account, concluded that the Secretary-General propeily exercised his disnetion
when he personally decided in the interest of the Organization not to offer the
Ap~~icant a further appointment.
13. TheAoolicant has alleeed that the Secretarv-General sou~ht a~ ~ ~ceived
.. -~ ~ ~ ~ ~ u
instructions from a Government in violation of Article LOOp , aragraph 1, of the
Charter (Application, paras. 20-22), which Article provides as follows:
"ln the performance of their duties the Secretary-General and the staff
shall not seek or receive instr~ ~ ~~~ from anv Gove,nm~ ~ o~ fr~ ~ ~v
other authority external ta the Organization. They shall refrain from any
action which might reflect on their position as international officiais
responsible only ;O the ~rganization.". CONTENTS OF THE DOSSIER 25
14. The Respondent, however, observes that the Tribunal. in paragraph XIX
of its Judgement found, as a fact, that
"there has been no allegation, and far less any evidence, that the Respon-
dent sought anyinstructions 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 disregarded his duties under Article 100,
paragraph 1, of the Charter".
Such a finding of fact by the Tribunal with respect to the Secretary-General's
personal decision, taken in conformity with Article 100 of the Charter, is, of
course, not a matter which relates Io any of the four grounds upon which an
opinion of the Court may be sought. Furthermore, the Tribunal emphasized
that
"indeed, he (the Secretary-General) Statesal1throughout that the measures
he took were in the interests of the United Nations taking into account al1
the facts, 'together with the representations to diverse effect by the perma-
nent missions of two Member States'" (Judgement. para. XIX).
15. However, in this context, one member of the Tribunal seems to have
formed the impression that the Secretary-General had followed what the
member called "a generally accepted rule" that "in the absence of the Covern-
ment's consent, a seconded staff member must always be refused, in Iimine, a
career appointment at the end of his period of secondment" (para. II of the
dissenting opinion). The Respondent submits that the dissenting member of the
Tribunal misunderstood Respondent's position which was, and is, that
"the decision (now) contested was taken hy the Secretary-General after
consideration of al1the circumstances inthe case. includinn the Applicant's
service record, together with the estimation of hi; supervisors andrepresen-
tations on his hehalf by counsel, and the events of 10 February 1983and
thereafter. tonether with thereoresentations to diverse effect by the perma-
nent mission;of two member'~tates"
and that
"additional consideration thereafter in the Appointment and Promotion
Board was not reauired. and would. moreover, have been manifestly inap-
propriate in viewof the establishedprocedures under staff rule 104.14 If)
(i) with respect to proposed appointments" (para. 24 of the Respondent's
answer to the ~ribunal).
16. The Remondent further submitsthat. in considerina al1the circumstances
in thrca\e, the'~ccretary-Ceneral \ras not unduly influencid by the viewsof one
or anothsr go\ernment, and sertainl) did not entertain the bçlief. ar suggested
hv the dissentine member of the ~Ïibunal. that the A~~lic..t was ~recluded
from consideration for re-appointment, but rather examined the case on al1its
merits before reachinn an independent determination in the interest of the
O-eU~~zation.
17. In addition to his allegation in conneztion with Article IWof the Charter.
the ADDlisantiited Article 101of theCharter in hisa~~llcation IO the Tribunal.
contending that the Secretary-Ceneral was required t6;e-appoint the Applicant
under paragraph 3 of that Article. which provides as follows:
"The paramount consideration in the employment of the staff and in the
determination of the conditions of service shall be the necessity of securing26 APPLICATION FOR REVIEW
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."
18. In view of his responsibilities as "Chief Administrative Officer" (Art. 97
of the Charter), the Respondent argued that the Secretary-General was
ohli-ated to take into acciunt al1 the circumstances in the case and that the
Secretary-General could not he compelled to exercise his power of appointment
under Article 101of the Charter in a case where the Applicant had no right ta
re-appointment and the Secretary-General determined that re-appointment
would not be in the interest of the Organization. In that connection. the
Tribunal noted that the "Applicant was entitled to act in any way he considered
best in his interest, but he mus1 necessarily face the consequences for his
actions" (para. XI1 of the Judgement). Furthermore, the Tribunal noted that
one consequence of the Applicant's actions was ta raise "the question of his
suitability as an international civil servant" citing its Judgement No. 326 in the
Fischmon case and referring to the following statement from a report of the
Fifth Committee of the General Assemhly:
"International officiais must he true representatives of the cultures and
personality of the country of which they were nationals, and those who
elected ta break their ties with that country could no longer claim Io fulfil
the conditions governing employment in the United Nations (doc. A/2615,
para. 70)."
The Tribunal held that the report of the Fifth Committee "must continue to pro-
vide an essential guidance in this matter" (ibid.).
19. Finally, in addition to his arguments under Chapter XV of the Charter,
the Applicant cites Article 2, paragraph 1, from Chapter 1and Article 8 from
Chapter III of the Charter, which respectively provide as follows:
"The Organization is hased on the principle of the sovereign equality of
al1its Memhers." and
"The United Nations shall place no restrictions on the eligihility of men
and women to participate in any capacity and under conditions of equality
in ils principaland subsidiary organs."
20. The Applicant's reference to Article 2, paragraph 1, is entirely misplaced
inasmuch as the Judgement of the Tribunal, which is in issue in this case, and
thedecision of the Secretary-General, which is the subject of that Judgement,
have nothing at al1to do with the sovereign equality of memher States. The
Applicant's reference ta Article 8 is equally misplaced, since that article refers
to sex discrimination, an issue which has never been raised in this case. The
essence of the Secretary-General'sdecision was his determination of the interest
of the Organization, and the Tribunal upheld him in that determination with no
mention whatsoever of eitherArticle 2, paragraph I, or Article 8 of theCharter.
21. In viewof the foregoing, the Respondent suhmits that the Tribunal inter-
oreted Articles 97. 100and 101 of the Charter in the course of its iu.ee-ent
in Cavourof the ~ecretary-<;cneral <$,hoproperly dischlirgcd hir rï\poii\ihilities
as Chicf Administraii\c Ofiiccr. uiider Arti~lc 97 or [tic Charicr. \ilthout
dcrogating trum his rr.,punsihilitie\ uiider Article IiMlof ihc Charter. \vheri lie
dccidcd noi io excreije hi\ powcr of appointmenr undcr Article 101 of the
Charter to grant thc Appliiant a iizir appoinimcni üftïr hi<fixed-terni appoint-
ment on secondment éipired CONTENTS OF THE DOSSIER 27
III, The Tribunal Did no! Commit a Fundamental Error of Procedure
Which Has Occasioned a Failure of Justice
22. The Applicant alleges that the Tribunal has committed a fundamental
error of procedure which has occasioned a failureof justice because it failedto
follow an earlier precedent and because il considered an issue not raised by the
parties (Application, sec. IV, paras. 34-43),
23. The Respondent observes that these two arguments do not relate to the
Tribunal's procedure but relate to questions of substance.
24. Articles 7 to Il of the rules of the Administrative Tribunal of the United
Nations describe the Drocedure to be followed hv the Tribunal in considering -
appval,. In considcring the sax, the Tribunal had beiore it the Applicant'\
Appliiarion, the Rerpondeni's answcr and rhe Appliranr', xriiren observations
on ihe Rcsuondeni'\ anruer bec PD.43 and 44, infra, of rhe Judeemcnt). Bcforc
pronounciig ifs judgement, the~ribunal reviewed the requests made by the
Applicant in his Application (p. 43, infra, of the Judgement), summarized the
facts in the case (pp. 43-50, infra, of the Judgement), enumerated the principal
contentions of the parties(pp. 50 and 51, infra), and identified the legal issues
involved in the case (para. 1of the Judgement). This procedure followed strictly
that set out in Articles 7 Io 11 of the rules.
25. The Applicant, however, suggests that a fundamental error of procedure
was committed hecause the Tribunal allegedly departs from two earlier
Judeements (No. 92: Hieeins and No. 192: Levcik) and denarts from a iude-
men; of the Àdministrat~~e Trihunal i)f ihc lniçrnalional ~abour ~rganis;ii&
(No. 431: Rosesru) (Appli:ation, sec. IV, para\. 34-39).
26 The Re\nondent uhmits thar ihc 'l'rib-~~l tJude.nieni.~~~rîs.~~. IV and
XIX), in fact, did not chsider that it departed from its earlier Judgements and
that the Secretary-General's actions did not impinge the principles stated in
Rosescu. The Respondent considers it appropriate, at this juncture, to note that
Rosescu was decided by a different Tribunal on different facts in a case where
the contested decision of non-renewal occurred after the Executive Head
initially decided to grant a new appointment. In any event, the Tribunal is
required, under Article 2 of its Statute, to hear and pass judgement on the
individual merits of each case before it, in the light of the particular cir-
cumstances in which the case is presented.
27. The Applicant also argues that the Tribunal committed a fundamental
error of urocedure because it dealt with the question of a change in residence
status and citizenship, which question was n6t raised by the (Applica-
tion, sec. IV, paras. 40-43).
28. The Respondent submits that the Tribunal's Statute clearly shows that
the Tribunal is not limited to considerin= the leeal arguments adduced bv the
pariiej bui murr ~.on\iderwhcthcr a siaif nienibrr's ;oniraci of ernploymeni hîr
no1 been obrerved. includinr "al1 pertinent regulaiions and rules" (sec Ari. 2.1
of theTribunal's Statute). ln other words, the~rihunal must consider a case on
the basis of al1 applicable laws and rules even if the parties failed to refer Io
some of them. In any event, the Tribunal's reliance on such matters cannot be
deemed to be an error, much less "a fundamental error of procedure which
occasioned a failure of justice" since the purpose of requiring the Tribunal to
consider al1matters is to ensure that justice is done and not to do justice merely
on the basis of those rules cited hy the parties. The parties to a proceeding can-
not avoid a proper consideration ofal1directly pertinent issues hy failing to raise
them, the Tribunal having the authority and, indeed, the duty to do so on its
own initiative.28 APPLICATION FOR REVIEW
CONCLUSION
29. In Resvondent's submission. no basis exists for concludina that the
Tribunal, in upholdine the decision of ihr Secretary-Ciznzralnoi to Gani a new
appointment to ihe Applicani, cxseeded its jurisdiciion or cornpetence, failed io
exercise its iurisdiction. or erred on a question of relatina to vrovisions of the
Charter or Cornmittedan error, let alone a fundamental erÏor of procedure
which has occasioned a failure of justice.
5. United Kingdom of Great Britain and A/AC.86/R.120
Northern Ireland: Informal draft
proposal '
A/AC.86/R. 121
31 August 1984.
6. Decision of the Committee on the Application of Mr. Yakimetz requesting
an Advisory Opinion of the International Court of Justice in Respect of the
United Nations Administrative Tribunal Judgement No. 333 (Yakimetz against
the Secretary-General of the United Nations)
The Committee on Anolications for Review of Administrative Tribunal
Judgements at the 4th m&ting of its twenty-fourth session on 23 August 1984
decided that there was a substantial basis, within themeaning of Article Il of
the Statute of the Administrative Tribunal. for the aoolication for review of
Administrative Tribunal Judgement No. 333 delivered at Geneva on 8 June
1984.
Accordingly, the Committee on Applications for Review of Administrative
Tribunal Judgements requests an advisory opinion of the International Court
of Justice on the following questions:
(1) In its Judgement No. 333 of 8 June 1984(AT/DEC/333), did the United
Nations Administrative Tribunal fail ta exercisejurisdiction vested in it by not
responding to the question whether a legal impediment existed to the further
employment in the United Nations of the Applicant after the expiry of his con-
tract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judgement
No. 333, err on questions of law relating ta provisions of the Charter of the
United Nations?
'Documentnot reproduced. [Note by the Registry.] CONTENTS OF THE DOSSIER 29
A/AC.86/30
21 September 1984.
7. Report of the Committee
Ropporteur: Mr. David M. Eow~nus (United Kingdom of Great Britain
and Northern Ireland)
1. At its twenty-fourth session, the Committee on Applications for Review
of Administrative Tribunal Judaements. establishedunder Article II of the
Statute of the United Nations ~dkinistrative Tribunal, considered applications
for review of the following Administrative Tribunal Judgements:
(a)NO. 333-Yokimetz v. Secretory-Generol of the United Notions;
/b)No. 331-Lame v. UnitedNotions Relief and WorksA~enc-for.-olesline
~ef"gees in the ~&r Eost;
(c) NO. 326-Fischmon v. Secrelory-Generol of the United Notions.
The Committee also considered but did not accede to a reauest received from
hlr. Zuleidu Jçkhine ihai ihr iime-limii for the submission of an application io
the Commitiee be exiended in respect of Adminisiraiive Tribunal Judgciiiciii
No. 319 lJekhinr v. Secrerorv-Grncrol of rhe Ufiited Norions~ rcndered on
28 0ctober 1983.
2. Meetings of the Committee were held on 20, 21, 22, 23 and 28 August
1984.
I. Composition of the Committee and Orgonizotion
of the Session
3. The Committee. under oa.aer-nh 4 of Article II of the Statute of the
Administraiive l'ribunal. is çomposed'of the member Siaics the represcniatives
of which have served on the General Commiiree of the most receni regular ses.
sion of the General Assemblv. namelv at this time: Alaeria. Belnium. Bhutan,
Burundi, Canada, ~hina,.'~olombia, ~zechoslov<kia, rance G erman
Democratic Republic, Guyana, Japan, Lebanon, Liberia, Libyan Arab
Jamahiriya, Nepal, Norway, Pakistan, Panama, Sierra Leone, Singapore,
Sudan, Swaziland, Thailand, Tunisia, United Kingdom of Great Britain and
Northern Ireland, United States of America, Union of Soviet Socialist
Republics and Venezuela.
4. At its meeting on 20 August 1984, the Committee elected the following
officers:
Chairman: Mr. Lies Gastli (Tunisia)
Rapporteur: Mr. David M. Edwards (United Kingdom).
II. The Applications Before the Comminee
and Their Consideration
5. On 23 July 1984, the Committee received, through its Secretary, an
Application from Mr. Vladimir Yakimetz requesting a reviewof Judgement No.
333 rendered by the United Nations Administrative Tribunal on 8 June 1984in
the case of Yokimelz ogoinst the Secretary-General of the United Notions. In
accordance with paragraph 1 of Article III of the Rules of Procedure of the30 APPLICATION FOR REVIEW
Committee (A/AC.86/2/Rev.3), the Application, which had been submitted in
English, was translated into the other languages of the General Assembly.
Thereafter, on 6 August 1984, in accordance with the same Rules of Proce-
dure, the Application was communicated in the form of a document
(A/AC.86/R.117) to al1 members of the Committee and to the Secretary-
General together with a copy of the Judgement of the Administrative Tribunal
(AT/DEC/333).
' 6. The secr&ary-General's written comments, submitted with respect to the
Application of MI. Yakimetz in accordance with paragraph 1of Article IV of
the Rules of Procedure of the Committee. were received bv the Secretarv of the
Coniiiiiriee oii 10August 1984and tliereaftcr duly circulaÏcd tu al1mcmber, of
the Committee in the form of a document (A, AC.86/R.I 18).
7. The Committcc considcred thc aooli~.ationof hlr. i'akimcr~ai ihrce closed
meetings held on 21, 22 and 23 ~ug;st 1984.
8. After members of the Committee had presented their views on the
Application of Mr. Yakimetz, the Chairman invited the Committee to decide
whether or not there was a substantial basis for the application in respect of
each ground set forth in Article II of the Statute of the United Nations
Administrative Tribunal. At the request of a member of the Committee, the
decisions were taken by a roll-call.
9. On the suestion of whether the A~oiication had a substantial basis on the
ground that the Adminisirati%,e~ribunai had evceeded iis jurisdiciion or com-
peience the Comniit1r.edccidcd, bg a vote of 25to none with 3ab,icntioni. that
there was not a substantial basis for theAo~lication on that ground. The voting
was as follows:
Against: Algeria, Belgium,Bhutan, Burundi, Canada, Colomhia, Cze-
choslovakia, France, German Democratic Republic, Guyana,
Japan, Lebanon, Liberia, Libyan Arab Jamahiriya, Nepal,
Norway, Panama, Sierra Leone, Singapore, Sudan, Tunisia,
USSR, United Kingdom, United States, Venezuela.
Abstaining: Pakistan, Swaziland, Thailand.
Absent: China.
IO. On the auestion of whether the Aonlication had a substantial basis on the
ground thai the.Adminisiratii~e ~ribukl had failcd to excrcisc juri\diciion
ve,reJ in ir. the Committee desided. by a iote oi 16 io 9, uith 3 abricntion3.
that there was a substantial hasis for the application on that ground. The voting
was as follows:
In S~vo~r: Bel-.um. Canada. Colombia. France. Guvana. . . Ja..n.
Liberia, Norway, Panama, Sierra Leone, Singapore, Sudan,
Swaziland. United Kingdom, United States, Venezuela.
Against: Algeria, Bhutan, Burundi, Czechoslovakia, German
Democratic Republic, Libyan Arab Jamahiriya, Nepal,
Tunisia, USSR.
Abstaining: Lebanon, Pakistan, Thailand.
Absent: China.
Il. On the question of whether the Application had a substantial basis on the
ground that the Tribunal had erred on a question of law relating to the provi-
sions of the Charter of the United Nations, the Committee decided, by a vote
of 16to 9, with 3 abstentions, that there was a substantial basis for the Applica-
tion on that ground. The voting was as follows: CONTENTS OFTHE DOSSIER 31
Infovour: Belgium, Canada, Colombia. France, Guyana, Japan,
Liberia, Norway, Panama, Sierra Leone, Singapore, Sudan.
Swaziland, United Kingdom, United States, Venezuela.
Agoinsr: Algeria, Bhutan, Burundi, Czechoslovakia, German
Democratic Reoublic. Libvan Arab Jamahiriva. Neoal.
Tunisia, USSR.
Abstuining: Lebanon, Pakistan, Thailand.
Absent: China.
12. On rhequesiion oiuheiher the Application had 3 sub\taniiiil ba\ir on the
ground thai ihc Admini\traii\,cTribunal had romniiited 3 fundanienial error in
nrocedure uhich had occasioned a Pdilureof iu,ticz. the Comniiitee decided. bs
a vote of II to 13, with 4 abstentions, that there was no1a substantial basis for
the Application on that ground. The voting was as follows:
In fovour: Belgium, Canada, Colombia, France, Japan, Liberia, Nor-
way. Panama, United Kingdom, United States, Venezuela.
Agoinst: Algeria, Bhutan, Burundi, Czechoslovakia, German
Democratic Republic, Guyana, Libyan Arab Jamahiriya.
Nepal, Sierra Leone, Singapore. Sudan, Tunisia. USSR.
Abstaining: Lebanon, Pakistan, Swaziland, Thailand.
Absent: China.
13. In the light of the foregoing decisions, the.Committee considered, in
accordance with oaranraoh 2 of Article IX of its Rules of Procedure. the for-
mulation of the question; on which it would request an advisory opinion of the
International Court of Justice. In this respect, an "informal draft proposal",
submitted bv the delenation of the United Kinedom and contained in document
A/Ac.~~/R.I~o, was-brought by the chairman to the attention of the members
of the Committee. The Committee adopted, by a roll-cal1 vote of 16to 9, with
1abstention. the followin- decision (A/AC.~~/R.I~I) basedon the orooosal of
the United Kingdom:
"Beosir~n II/ the Cot~rn~rireeon rhe opplicutron O/ hlr Yokimer:
requesring on odir~ory oprnion of rhe lnrernorronol Cordrr O/ Jusrice rn
res~ect of th^ Unued iVutronsAdmin~strutrvt~ Trihi~nol Jud~enienr No
3j3 (~lkikimerz ogoinst the Secretory-Generol of the ~nited Notions)
.
The Committee on Applications for Review of Administrative Tribunal
Judgements, at the 4th meeting of ils twenty-fourth session on
23 August 1984, decided that there was a substantial basis. within the
meaning of Article II of the Statute of the Administrative Tribunal, for the
application for review of Administrative Tribunal Judgement No. 333
delivered at Geneva on 8 June 1984.
Accordingly, the Committee on Applications for Review of Admin-
istrative Tribunal Judgements requestsan advisory opinion of the Interna-
tional Court of Justice on the following questions:
(1) In its Judgement No. 333 of 8 June 1984 (AT/DEC/333). did the
United Nations Administrative Tribunal fail to exercisejurisdiction vested
in it bv not resoondinf! Io the ouestion whether a legai imoediment existed
IOilie.furiher e~inploy~cntin the Unitcd Nations ofÏhe ~pplicani aller the
expiry of his coniract on 26 Dcccmbcr 1983''
121Did ihe Uniicd Uations Adminisiraii\e Tribunal. in ihc sameJudae-
meni No..333. err on questions of law relating to provi;ions of the Charter
of the United Nations?"32 APPLICATION FOR REVIEW
14. The results of the vote were as follows:
In favour: Belgium, Canada, Colombia, France, Guyana, Japan, Nor-
way, Panama, Sierra Leone. Singapore, Sudan, Swaziland,
Thailand. United Kingdom, United States, Venezuela.
Againsr: Algeria, Bhutan, Burundi, Czechoslovakia, Germaii Demo-
cratic Republic, Libyan Arab Jamahiriya. Nepal, Tunisia,
USSR.
Abslaining: Pakistan.
Absent: China, Lebanon, Liberia.
15. The aforerncniioned decisions of ihe Committce on the Application of
hlr. Yakimeiz and iexi of the quesiions addressedIOthe International Court of
Justice. as well as the results of and the oarticioants in the votes taken durine
the privatc deliberaiion,. ucre in accordance uith paragraph 4 of Article VI1of
the Rulesof Proccdurc of the Commitiee. formally announced by the Chairman
in a public meeting (5th meeting) held on 28 ~u~"st 1984.At that meeting, the
following mernbers of the Committee made statements for the record: Bhutan,
Czechoslovakia. France. Panama. United States and USSR. The verbatim
record of the '5th meeting of the Committee is contained in document
A/AC.86/XXIV/PV.5.
16. On 5 Julv 1984. the Committee received. throuah i-s Secretarv. a. .
application from hlr. Robert Large requesting a review oi Judgement No. 331
rcndered by the United Nations Administrative Tribunal on 28 May 1984 inihe
caseof Largeogotnnthe UnitedNulionsReliefund WorksAgmcyfor Palestrne
Refugeesin the Near East. In accordanse with paragraph I of Article III of the
Rule5of Procedure of the Committee. the application. which had been submit-
ted in hand-written form in English, was translated into the other languages of
the General Assembly. Thereafter. on 9 August 1984. in accordance with the
same Rules of Procedure. the application was communicated in the form of
documents (A/AC.86/R.III and Corr.1 and Add.1) to ail members of the
Commiiiee and io the Commi\sioncr.Gcneral of the United Nations Relief and
Works Agency for Palestine Refugees in the Near East together with a copy of
the Judgement of the Adminisirative Tribunal (AT/DEC/331)
17. The uritten cornmenis of the Commissioner-General of the United
Nations Relief and Works Agency for Palestine Refugees in the Near East. sub-
mitted with resoect to the aoolication of Mr. Laree in accordance with
paragraph I of ~rticle IV of théRules of Procedure of the Committee, were
received by the Secretary of the Comrnittee on 14August 1984and thereafter
duly circulated to al1members of the Committee in Cheform of a document
(A/AC.86/R.I 13).
18. The Committee considered the application of Mr. Large al a closed
meeting (6th meeting) on 28 August 1984.
19. The Committee decided unanimously that there was not a substantial
basis for the application of Mr. Large under Article II of the Statute of the
Administrative Tribunal and concluded that the International Court of Justice
should no1be requested to givean advisory opinion in respect of Judgement No.
331 delivered by the United Nations Administrative Tribunal in the case of
Large against Ïhe United Nations Relief and Works Agency for Palestine
Refugeesin the Near East.
20. On 23 July 1984, the Cornmittee received, through ils Secretary, an
aoolication from Mr. Emilio Fischman reouestine a review of Judeement No.
3% rendered by the United Nations ~dministratrve Tribunal on 17 May 1984
in the case Fischmanagainsrthe Secretary-Generalof the United Nations. In CONTENTS OF THE DOSSIER 33
accordance with naraeranh I of Article III of the Rules of Procedure of the
Committee, .the appicGion, which bad been submitted in English. was
translated into the other languages of the General Assembly. Thereafter, on 6
Aueust 1984. in accordance with the same Rules of ~rocedure. the aoolication
wa;communicaied in the form ofa documen~(~/~~.86/~.114) IO ali iembers
of the Commiitee and to the Secretary-Cienrrdl togerher with 3 copy of the
Judgement of the Administrative Tribunal (Aï'/UEC/326).
21. 'l'hcSesrciary-Gencral'r wriiten comnicnts, submiiicd wiih respect io the
application of Mr. Fischnian in ascordanic wiih paragraph I of Ariiclc IV of
th; Rule\ of Procedure oi the Commiitee. were received by the Secrctary of ihc
Commitice on 10August 1984and thcrcafter duly circulated io al1member\ of
the Commiitee in thc form of a documcnt (A/AC.86/R.I15).
22. In response ta the Committee's reiuest made at its 1st meeting on
20 August 1984,the Secretary of the Committee, on 21 August 1984,presented
additional information on the circumstances surroundinathe submission of Mr.
Fischman's application and. in pariicular. the daicof the rcceipt of the
Tribunal's judgsmeni by hlr. Fischman. This inform3iion is cuniained in docu-
ment A/AC.86/R.119.
23. The Committee considered the application of Mr. Fischman at a closed
meeting (6th meeting) on 28 August 1984.
24. The Committee decided unanimouslv that there was not a substantial
hasis for the application of Mr. Fischman under Article II of the Statute of the
Administrative Tribunal and concluded that the International Court of Justice
should not be reauested to aive an advisorv ooinion in resnect of Judnement No.
326 delivered b; the unicd Nations ~dministrative ~;ibunal in the case of
Fischman against the Secretary-General of the United Nalions.
25. In accordance with oararraoh 4 of Article VI1of the Rules of Procedure
of the Committee, the deCisio& if the Committee on the applications of Mr.
Large and Mr. Fischman were formally announced by the Chairman in a public
meeting (7th meeting) held on 28 ~ugust 1984. At chat meeting, the teGesen-
tative of the Sudan made a statement stressing the importance of advance
announcement in the Journal of rhe United Narions of open meetings of the
Committee held pursuant to the spirit and letter of the Committee's rules of pro-
cedure.
A/AC.86/XXIV/PV.S
17 September 1984.
8. Verbatim Record of the 5th Meeting
Held at Headquarters, New York,
on Tuesday, 28 August 1984, at 10.30 am.
Chairman: Mr. Gastli (Tunisia)
The meeting was called Io order or 11.05 a.m.
The Chairman (interpretation from French): The present public meeting
of the Committee on Applications for Review of Administrative Tribunal34 APPLlCATlON FOR REVlEW
Judgements has been convened pursuant to Article VI1(4) of the Committee's
Rules of Procedure. That paragraph provides that
"The decisions of the Committee and the text of any questions to he
addressed to the lnternationalCourt of Justice, as wellas the resulis of and
the participants in any votes taken during the private deliberations, shall
be formally announced in a public meeting, at which any member of the
Committee may make a statement for the record."
The Commitice has held four meetings in ihccourse of ifspreseni scssion. and
has completed ihc cons~deration of one of the appliraiion, before ii.namely.
the A~~lisation of Mr Vladimir Vicioroviich Yakimei7. dated 21 June 1981.in
which ~r. Yakimetz asks the Committee to request an advisory opinion of the
International Court of Justice in respect of United Nations Administrative
Tribunal Judgement No. 333. Pursuant to that Application, and in compliance
with the provisions of paragraph I of Article IX of ifs Rules of Procedure, the
Committee has taken a decision in respect of each of the four grounds invoked
by the Applicant under Article II of the Statute of the Administrative Tribunal.
Each decision was taken by a roll-cal1vote. The grounds voted upon and the
results of the voting were as follows.
(1) 1s there a substantial basis for the application on the ground that the
Tribunal has exceeded its jurisdiction? There were no votes in favour; 25
members voted aaainst: Alaeria. Belpium. Bhutan. Burundi. Canada. Colom-
hia. ~zcchoslovakia. ~ran';. Cigrmai ~cmocraiic. Republic. Guyana. Japan.
Lebanon. I.iberia. Libyan Arah Janiahiriya. Nepal. Noruay. Panama. Sierra
Leone. Singapore. Sudan. Tunisia. Union of Sovirt Socialist Kepublics. Uniied
Kingdom. Uniied Staies and \'enezuela: three members absiained: Pakistan.
Suaziland xnd Thailand. The Committee ihur concluded ihat there was no
substantial basis for the application on the ground just stated.
(2) 1s there a substantial basis for the Application on the ground that the
Tribunal has failed to exercisejurisdiction vested in it?ixteen members of the
Committee voted in favour: Belgium, Canada, Colombia, France. Guyana,
Japan, Liberia. Norway, Panama. Sierra Leone, Singapore, Sudan, Swaziland,
the United Kingdom, the United States and Venezuela; nine members of the
Committee voted against : Algcria, Bhutan, Burundi, Czechoslovakia, the Ger-
man Democratic Republic, the Libyan Arab Jamahiriya, Nepal, Tunisia and the
USSR; three members of the Committee abstained: Lebanon. Pakistan and
Thailand. There being 16 \,oiein lavour. 9agaiiisi and 3abrientions. theCom.
miiiee roncluded ihat there war a ,ubstantial ba\i\ for the Applicaiion on ihc
second ground.
(3) 1s there a substantial basis for the Application on the ground that the
Tribunal has erred on a question of law relating to the provisions of theCharter
of the United Nations? Sixteen members of the Committee voted in favour:
Belgium. Canada, Colombia. France, Guyana, Japan, Liberia. Norway.
Panama, Sierra Leone. Singapore, Sudan, Swaziland, the United Kingdom, the
United States and Venezuela; nine members of the Committee voted against:
Algeria, Bhutan, Burundi, Czechoslovakia, the German Democratic Republic,
the-Libyan Arab Jamahiriya, Nepal, Tunisia and the USSR; three members of
the Committee abstained: Lebanon. Pakistan and Thailand. There beine. 16
voies in fai,our, 9againsi and 3absieniions. the Commiiteeconçluded rhai ihere
was a suhrtaniial basis for the Application on rhc rhird ground.
(4) 1s there a substantial basis for the Application on the ground that the
Tribunal hascommitted a fundamentalerror in procedure which has occasioned CONTENTS OF THE DOSSIER 35
~ ~~ ~ure of iustice? Eleven members of the Committee voted in favour:
Belgium, Canada. Colombia, France, Japan. Liberia. Norway, Panama. the
United Kingdom. the United States and Venezuela; 13 members of the Com-
mittee vot;d against: Algeria, Bhutan. Burundi, Czechoslovakia, German
Dernocratic Republic, Guyana. Libyan Arab Jamahiriya. Nepal, Sierra Leone,
Singapore, Sudan. Tunisia and the USSR; four members of the Committee ab-
stained: Lebanon. Pakistan. Swaziland and Thailand. There being II votes in
favour, 13against, with 4 abstentions, the Committee concluded that there was
no substantial basis for the Application on the ground jus1 stated.
~~vine decided as iust described. on the four arounds advanced bv the Avpli-
cînt. thîCommittee~dopted the folloutng deciion contaiiiing tliete\tr oi the
quc%tionsaddrrwd b).itIo the Intcrnîtioniil Court oi Justice:
"The Committee on Applications for Review of Administrative Tribunal
JudeU~en~s ~t ~he fourth meeting of its twentv-fourth session on
23~u~uçt IYXJin Yeu York dcLidedïhai thcre iha ,"b\~<intiiil h~ri< utthan
thc meîning or Article II of the Statutc of the ,\dminiitrativcTribiinal ior
the i..nlicïtionfor rei,ica. oi .Administrati\e Tribunal JuJ.emciit Ki>. 333
delivered at Geneva on 8 June 1984.
Accordinalv the Committee on Applications for Review of Admini-
strative ~ribunal Judgements requestsan advisory opinion of the Interna-
tional Court of Justice on the followiiig questions:
'1. In ils Judgement No. 333 of 8 June 1984 (AT/DEC/333), did the
United Nations Administrative Tribunal fail to exercisejurisdiction vested
in it by not responding to the question whether a legal impediment existed
to the furtheremployment in the United Nations of the Applicant after the
exoirv of his contract on 26 December 1983?
i. id 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?' "
The above decision was adopted by a roll-cal1 vote of 16 votes 10 9, with I
abstention. The pattern ofvoting was as follows: in favour, Belgium, Canada,
Colombia, France, Guyana, Japan. Norway, Panama, Sierra Leone, Singapore.
-u~~ ~ Swaziland. Thailand. United Kinadom. United States, Venezuela;
- .
against, Algeria, '~hutan, Burundi, Czechoslovakia, German Democratic
Reoublic. Libvan Arab Jamahiriya, Nepal, Tunisia, USSR: abstaining.
~aikistan.
That is the formal announcement 1intended to make this morning in keeping
with our Rules of Procedure. Pursuant to Article VI1 (4) of the Committee's
Rules o~ Pro~~~~~~~.al this oublic meetina -.v member of the Committee mav
make a statement for the record.
1shall now cal1on those members who wish to exercise that prerogative.
Mr. Tserine (Bhutan): The four auestions as contained in Article II of the
Statute of theuÙnited ~ations ~dministrative Tribunal have formed the basisof
our deliberations.
On the part of my delegation, in reviewing the case before us, Yakirnelz
againsr the Secrelary-General of Ihe Uniled Nalions, 1have taken into account
al1the documents presented tous, namely: document AT/DEC/333, containing
....J-de-~~nt of -~~ ~ ~~~~~Nations Administrative Tribunal: document
A/AC.86/R.117. which is the Application of Yakimetz; and document
A/AC.86/R/I 18, consisting of the comments of the Secretary-General on the36 APPLICATION FOR REVIEW
Applicant's written statement. 1 have also paid close attention to al1 of the
speakers during Our deliberations.
The complexity of the case is reflected in the seeming absence of consensus
on it. Some of the speakers concentrated on certain elements of the legal issues
of the case and on certain parts of the Judgement of the Administrative
Tribunal. This led us to believe that there was agreement on the fundamental
issues involved. Elements of the legal issues and parts of the elements do not
necessarily represent the case entirely.
In reviewin- the case itself and the Jud-ement of theTribunal. we must take
into account al1the relevant issues, large and small, old and new, for this case
is crucial-to the A~~licant, Io the Res~ondent and in ~articular for the effi-
cient running of theünited Nations secrétariat in the larger interest of the inter-
national community.
1want to make it clear that my delegation fully supports the principles and
objectives enshrined in theCharter of the United Nations. It is important to us,
as it is to many, for the United Nations Secretariat to function free from
pressures and to fulfil its responsibilities. As the Secretary-General, in his report
on the work of the Organization to the thirty-eighth session of the General
Assembly, pointed out:
". . .while al1profess their dedication to the principles of independeni and
objective international administration, few refrain from trying to bring
pressure to bear in favour of their own particular interests. This is
especially so on the personnel side." (A/38/1, p. 5.)
We believe it is in the general interest of the international community ta act
together, fully aware of the practical difficulties of the enterprise but with the
uiited obiective of stren-thenine-he Secretariat and the ~nited Nations svstem.
To this end, within the rules and provisions of the Charter of the United
Nations, the Secretary-General should be allowed to exercise his discretion and
we should refrain from creating any undesirable precedents in the functioning
of the Secretariat.
In the case of Mr. Yakimetz, his contract expired on 26 December 1983.The
questions posed by the Applicant and now by certain members of the Review
Cornmittee are, "whether a legal impediment existed to the further employment
in the United Nations of the A~~licant after the ex~irv of his contract on 26
December 1983''and "Did the ~nited Nations ~dmjniitrative Tribunal, in the
same Judgement No. 333, err on questions of law relating to ~rovi~ions of the
Charter of the United Nations?"
The responses to these questions are fully reflected in the Administrative
Tribunal's Judgement. It even referred ta the "widely held belief" in a report
of the Fifth Committee, which States:
"International officiais should be true representatives of the culture and
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
fulfil the conditions governing employment in the United Nations."
(A/AC.86/R.117, para. 41.)
With regard to the second question, Article 101 (3) of the United Nations
Charter provides that
"The Daramount consideration in the em~lovment of the staff and in the
deterniii;aiioii of rhc condition\ oi'\er\ i:e siali be the riecessityof securing
the highcst siandards oi efiiciciic). compcrcncc and intcçrit)."
Here 1 wish to underline the words "and integrity" of the individuals. CONTENTS OFTHEOOSSlER 37
All these factors are well covered in the Judgement of the Tribunal. 1fail to
seethe need for an opinion on what is already crystal clear.
It is also clear from al1the relevant documentsbefore us that the Tribunal did
consider the Applicant's arguments and the other relevant issues. The legal
issues have been well analysed and presented to us by the Judgement of the
Tribunal asa result of the hard work of the memhersof the Tribunal, who sifted
throueh substantial documentation. facts and available information suuulied
hoih is the Applicant and the Kerpondent Thcreiore uc find no sub>ia!itial
bah ior rcioniiiiending the ca\c for an ad\,i\<iry opiiiion of ille Internatii)nal
Court of Justice. My delegalion had no choice but to vote against referring por-
tions of the Tribunal's Judgement to the International Court of Justice for an
opinion.
Mr. Ropin (France) (interpretation from French): Mr. Chairman, my delega-
tion also wishes to begin by congratulating you on and thanking you for your
most efficient conduct of the Tribunal's work.
With regard to the first question put to the Tribunal, my delegation agrees
with the majority of the Committee that Mr. Yakimetz's application is based
on grounds that are valid under Article 11 (2) of the Statute of the
~\dniinlsir.iiiic Trihunùl in slïiming ttiai the Tribunal did not an,uer the qucs-
rion of ahcthcr th31 uli\ J Irgal inipcdiiiicni io the rcncral <II the ,\ppliclint'r
emolovment al the United Nations after the exoirv of his contract on 26
December 1983. However, my delegation is inclinedfo believe that this corn-
plaint is grounded no1on any failure of the Tribunal to exerciseits jurisdiction,
but rather on its having committed a fundamental procedural error that gave
rise to a failure of justice, under Article II (1) of the Statute. We regret that,
as had been suggested, the Committee did not agree to accept either of these
-rounds in SUDDO..of the aoolica. .n before the Tribunal.
\Ir. .A$<li.dnr:(Lriioii oiSo!ict Socililiri Rcpuhlic>) (inicrpretarioii froni Rus-
rian): Ai the outset. Mr Chairmdn. I \hi)~ld like to iongrîiulatc you on and
to thank vou for vour success~uland wise euidance of the work of our Commit-
tee during [hi\ dir.w\.>iori of tI,c c\ireniel) complc\ matter before uç.
Tlic Sot ici dclegdiion deemr ii neiersîry to siaic ilspoçition un the dc<i,ioii
iaken b) ihc Comm~iieeon Appli:ariun. ftir Kciicn oi Adrninisiraii\e Tribunül
Judpcnienisoii 23 Ai.gurt 1984.In Our tic\$,. thi\desiçioii io requert ;in adriwr\
opinion of the Inicrnationlil Couri <iflusrice in respesi of Judgemcni No. 333
of the Administrative Tribunal is absolutely unfounded and artificial. As is
known, the Committee look the decision to go to the International Court of
Justice on the following two matters.
One- ~-~ Has the Admin~~ ~ ~~ ~ ~ ~ ~ ~ibunal failed to exercise a iurisdiction
vestedin if by not responding to the question whether a legalimpediment existed
to the further employmenr of the Applicant in the United Nations after the
expiry of his contrkton 26 Decembe; 1983?The Administrative Tribunal con-
sidered the case of the Applicant for consideration, heard il and issued ils
Judgement-that is, it did not fail to exercise the jurisdiction vested in il. The
Judgement of the Administrative Tribunal may give rise to satisfaction or not;
but this is no1 relevant in regard to whether the Tribunal exercised a
iurisdiction.
Iti,~vt~ritiutiilr~poiriiirig oiit iIi;~i the Inrernati<inal Court of Jurtiiiitr deci-
,ion on the Alorrislit*d~;ise \ilitcd: "\\'hcihrr or iioi iiIthe lribiinal] %lis righi
in its decision is not pertinent to the question of jurisdiction." That is from
paragraph 78 of the advisory opinion of the International Couri of Justice of
20 July 1982.
The judgement of the Administrative Tribunal contains a number of very38 APPLICATlON FOR REVLEW
detailed points which show that the Tribunal did consider this question of legal
impedimenu and did give an answer to it.
In paragraph VI of the Judgement, the Administrative Tribunal says, for
example:
". . .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" (AT/DEC/333, para. VI).
Thus the Administrative Tribunal quite definitely covered the juridical situa-
tion of the Applicant after the end of his secondment contract, and that situa-
tion was that the Applicant had no legal grounds to expect any further
appointment.
Further on, the Administrative Tribunal States:
"The Applicant was entitled to act in any way he considered best in his
interest, but he must necessarily face the consequences for his actions."
(Para. XII.)
In that paragraph of its Judgement the Administrative Tribunal considered
the question of the Applicant's prospects of being givenanother contract after
the expiry of his secondment contract. The Tribunal stated, in particular, that
"In so far as he was on secondment from the USSR Government, none
of the actions he took could brine about anv .ez-l expectancy of renewal
of his appointment." (Para. ~11.ï
Hence, in the opinion of the Administrative Tribunal, the actions of the
Appiicant were an impediment makinr further service in the United Nations
~icietariat difficult.
Still in paragraph XI1 of the Administrative Tribunal's Judgement, it says:
"Another consequence of his actions raised the question of his suitability as an
international civilservant." (Para. XII.) The Tribunal explains itsevaluation of
the suitability of the Applicant as an international civil servant by giving a very
unambiguous quotation from a document of the Fifth Committee of the
General Assembly-document A/2615, paragraph 70-as follows:
"lnicrnational officials $hould bc truc representatives oi ihz culrure\ and
personaliiy of the country of ivhizh the, \i,crc naiionals, and [thail those
;ho elected to break thek ties with that countrv could no lone-r claim to
fulfil the conditions governing employment in the United Nations." (Para.
XII.)
Thus the Tribunal again talks about a circumstance which does no1permit the
Applicant to expect further service in the United Nations.
Further on in paragraph XI1the Administrative Tribunal quotes from Infor-
mation Circular ST/AFS/SER.A/238. puhlished on instructions from the
Secretary-General, relating directly to this question of "suitability" of a can-
didate for working in the United ~acons, as follows:
"The decision of a staff member to remain on or acauire permanent
rcsidence statu, in . .. [the) country loi his duty srationl Ln no way
reprcscnts an interest of the United Nations. On the contrary, this decision
mav adver5clyaffect the interests of ihc United Nations in ihc cdscof inier-
nationally recruited staff members in the Professional category ..."
(Para. XII.) CONTENTS OF THE DOSSIER 39
This is further evidence to the effect that the Administrative Tribunal did
specifically consider the various aspects of the existence of legal impediments to
the further employment of the Applicant in the United Nations alter the expira-
tion of his contract on 26 December 1983.
AI1these circumstances point to a lack of any grounds for submitting to the
International Court of Justice the first question contained in the decision of the
Committee: that question does not exist.
The second question in\olvrd wac whether the United Nations Administrîti\e
Tribunal had erred on quc\iion\ of I3wrclating IOthe provisions oi rhc Charter
of the United Nations. We believe that this question too, is unfounded and
artificial.
By the terms of Article 97 of the Charter. the Secretary-General is the chie1
administrativeofîicer of theOreanization. It is he who. accordinr to Article 101
(1) of ihe Chartrr. appoints ~çcreiariîr rtafi undcr rcgulations-cstablished by
the General Assernbly. Onc of ihow regulations i<to be found in pariigraph 5
of Pari IV of üeneral Asscmbly resolulion 37/126; thc Sccrctary-General fully
complied with ihc provisions of thît pîragraph. giving every reasunable son-
sideration to the candidacy of the Applirant. and hi, driision took accouni of
al1 the circumstances of the case,
Paragniphs XIV ro ?(VIII of the Judgcmcnr 01'ihc Adminicirarivc Tribunal
refer to and cvnluate the action of the Sesretary-Gencrîl. In paragrapli XVlll
theTribunal reafiirmed the ~ecretarv-General's~soale uthoritv to decide on the
appointment of the Applicant, and it deemed that the ~ecre;ary-General exer-
cised his discretion properly.
B. ~~~-terms of Article~10~(1. ,f the Charter. the Secretarv-General and the
staff should no1seek or receive instructions from any Government or from any
other authority external to the Organization. In ils Judgement, the Tribunal
States that
"ln the present case ... 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 disregarded his
duties under Article 100, paragraph 1, of the Charter."
Throughout the consideration of the case, the Secretary-General main-
tained-and there is no reason to question this-that the rneasures he took were
in the interests of the United Nations taking into account al1 the facts.
There is no eround for the contention that the Administrative Tribunal did
not take account of the provisions of Article 101(3)of the Charter; the qualities
of an international civil servant ennmerated in that parasraph were fully taken
into account bv the AdministrativeTribunal. since thev wereamnlv enourh con-
sideredin the katerial submitted to the ~ribunal. In paragraph~ll of ifs deci-
sion, the Administrative Tribunal, as we have shown, refers to other qualities
required ofan international civil servant. The need ta take into account qualities
other than efficiency, competence and integrity is qualified by the word "para-
mount" in Article 101 (3) of the Charter.
With resvect to Article 2 11)and 10Article 8 of the Charter. which have been
referrid~to'in this ~ommittee's discussions, it is perfectly clea; that they are not
relevant to this case, which has no bearing on the sovereign eauality of member
States or on questions of discrimination on the basis of sex. ~eferences to these
provisions, completely inappropriate in the context of this case, once again
underscore the insidious nature of the attempts to prove the Administrative40 APPLICATION FOR REVIEW
Tribunal's ostensible error on a question of law relating to the provisions of the
Charter.
Thus, in the viewot my dclcgaiion. neirher of rhr iivo questioiis raised by ihc
<'i~mmitiecin ir\ dcri\ioii ~onsrituies grounds ior requesiing an adviwry opin-
ion of ihc Inicrnationsl Court of Jusricc Therefore. my delcgarion. along ivirh
niany orher delegations, voied againsr ihat de:ision.
Siiice therz is3 lac)<oi any suhsianrial Iegal cruund, for referriiig this niatier
to the International Court of Justice, thosebhi supported such a rëferral were,
we believe, guided hy nothing but one-sided political considerations. The
political tinge that coloured this issue runs counter to the United Nations
Charter, and can only prejudice the effectiveness of the Secretariat and
Administration of the United Nations.
Mr. Rosenstock (United States of America): We had not intended to speak
at this meeting, since we believe that the decisions taken speak for themselves
and were obviously taken on the basis of the very helpful Applicant's hrief
which was before the Committee and which the Court will have before it, as well
as other hriefs, which will leave no doubt as to why the broad majority in this
Committee took the decision if did.
We believe that the question whether there was a legal bar to further employ-
ment is a critical one, one on which the Tribunal erred. It is separate from the
question of whether there was any expectation. The separate nature of those
questions is ohvious, and if it were not in and of itself it would be obvious by
the existence of resolution 37/126, which underlines the distinction. There
would he no purpose in that resolution if that distinction did no1 exist.
We concur in the reasoning in theMortished case that auestionsof this char-
acrer mïy hc c(~rr~.ciIanal!.\ed. ciihcr in failurc of terni, ro exerçise jurisdiciion
or in trrm, of a fundamental error of procedure. To ihose oi us irom ihc
comrnon-lan tradition ii appcari niorz clcarly io be a iailure io ehercise jurisdic-
[ion. To rhose from the civil-lau tradition ihc tliilure apparcnily amounic mure
obviou>ly ro a procedural error oxasioninp a denial oi iusiise. \\le believe boih
perceptions lead to the same conclusion.
We are also convinced that we are faced here with a course of dealing that
leaves little doubt that the Tribunal committed errors of law with regard to
interpreiaiion and appli~.aiion oi the Charter. Merely io rouch on somrof thc
rearoning whiih Icd us ro participaie in the decirion iliar uas inken io refer ihis
mairer. ue hcliei,~ Ariiclcç 100 and 101 of ihc <:barrer are dirccrlv in\,olred.
Article 2 (1) is either directly involved-sincewe are faced with a course of deal-
ing which must be generalized if Article 2 (1) is to he honoured but which if
eeneralized would he not merelv subversive but destructive of the verv notion
of an international civil service as opposed to some form of inter-governmental
collation-or alternatively, as a fundamental principle of the Charter, one
which must infuse its meaning to al1 other relevant~articles and certainly is
instinct in the wording, ohject and purpose of Articles IO0and 101.
Now, as we have indicated, is not the time togo into the precise reasons why
we believe questions have heen raised with regard to Articles 100and 101 and
why the advice of the Court should be sought on those questions. The articles
and resolution 37/126 are crucial to the matter. Resolution 37/126, moreover,
in Ourview. is not iust someresolution adooted under the Charter-hased oowers
of the ~ss~mbly. Ït is an exceptionally strongly worded text with its us; of the
word "decides", which goes directly to basic questions relating to the key
Charter articlesinvolved and thus ought Io have played a central rde in the ralio
decidendi of the Trihunal were errors of law in connection with the Charter to
he avoided. To the extent that it was considered at all, we believe it was con- CONTENTS OF THS DOSSIER 41
sidered in the context of serious errors of law relating to the resolution, Article
100 and Article 101.
The discretion on the part of the Secretary-General does not mean freedom
to act in a manner inconsistent with the plain meaning. object and purpose of
the key articles of the Charter.
Dubious quolations from curious aspects of the curiously broadly drafted
Fischman opinion of the Administrative Tribunal do not obviate the legal
obligation to stick within the meaning, letter and spirit of Articles 100and 101
-even in casesin which discretion is being exercised.
Those are a few of the reasons. in the context of al1the matters before us.
uliich led us strongly to support [lie rcferral of those questions to the Court.
Wcarc soniidcnt that the Codrt willaddress thein in the manner IIIuhich [lie)
deserve
Mr. Pavlovsky (Czcchoslo~akia): I also should likc to congratulatc sou, hlr.
Chairman. un the eificicnt mannci in uhich you ha\c guidcd thii <:ommittcc's
deliberations.
Our delegation hupport~ thr dc,.i\iun ai the C<iinmitlee oii ,\pplicdtioiifor
Rziiçw of ,\Jiiiini\traiivcTribuiial Judgcincnt, tu dimi\> the Appli~ant'r plta\
with reeard to the Tribunal's Judeement No. 333 as far as thevwere based on
the ~~ilicant's claims that the ~ibunal has exceededils jurisdiction and com-
petenceand committed fundamental errors of procedure which have resulted in
a miscarriage of justice.
However, we cannot concur in the majority view that an advisory opinion of
the International Court of Justice mus1 be sought on questions of the alleged
failure of the Tribunal to exercise jurisdiction vested in il and having erred on
questions of law relating to provisions of the Charter.
In Our delegation's view, the Tribunal properly exercised ils iurisdiction and
competence by hearing the application and adjudicating upon it. At this junc-
ture, the Czechoslovak delegation fully supports the view of the Respondent in
the casethat :
"... while the Tribunal might fail to exercise ils jurisdiction by errone-
ously failing to take a caseproperly submitted Io il, a mere failure to find
in favour of the Applicant is not a failure to exercise jurisdiction"
(A/AC.86/R.I 18. para. 9).
And the Respondent's view that:
". .. the findings of the Tribunal in a decision on the import of Staff
Regulations, Staff Rules and General Assembly resolutions do not raise a
question of jurisdiction:" (para. 10)-
a view that was developed by the International Court of Justice itself.
Furthermore, the Tribunal could no1 fail to exercise ils jurisdiction by not
responding to the question whether a legal impediment existed ta further em-
ployment of the Applicant by the United Nations after expiry of his contract in
the manner in which the Applicant obviously anticipated il, but rather in the
manner in which the Tribunal itself considered as bein- a..ro~.iate. takin- into
rit-ount al1facts and cirrumitance\ of the caw.
In paraaraph XII of its Judrrmcnt No. 333 thr 'Tribunal rorrectly held that
the ~ioliiani "was entitled toict in an. wa. he considered best in his interest.
but hémus1 necessarily face the consequencesfor his actions" (AT/DEC/~~~;
para. XII) and pointed out that one of theseconsequences"raised the question42 APPLICATION FOR REVlEW
of his suitability as an international civil servant" (para. XII). At this juncture
the Tribunal upheld the validity of the report of the Firth Committee adopted
by the General Assembly at ils eighth session (A/2615) stating that
"International officiais should betrue representativesof the cultures and
oersonalitv of the countrv of which thev were nationals. and that those
;ho electédto break thei; ties with that Country could ni longer claim to
fulfil the conditions governing employment in the United Nations." (Para.
XII.)
Moreover. in a broader sense,while the presenceof a legal impediment would
invalidate an appointment of a staff member by the Secretary-General, the
absenceof such an impediment does not legally oblige the Secretary-General to
proceed with an appointment if he. within his discretionary powers, rightfully
considered the Applicant otherwise unsuitable for the international civil service.
The question of a legal impediment in the given casewas brought up by the
Applicanr himself, while the Respondent repeatedly stressed that his decision
against reappoinlment to which the Applicant had no right, was made after
taking into account al1the circumstances in the caseand after determining that
reappointment would not be in the interest of the Organization.
Thus the question of a legal impediment could hardly play a central role in
the adiudication on the casebv the Tribunal since this was not the main matter
at issue and in the view of the Czechoslovak delegation does not constitute a
substantive basis as regards the Applicant's claim that the Tribunal has failed
to exercise ils iurisdiction
The Czecho;lovak delegation furthermore strongly believesthat the Tribunal
has in this case correctly interpreted applicable provisions of the Charter and
supports the position ofthe ~ei~ondent contained in his comments on the case.
In addition. with respect to Article 100 (1) of the Charter of the United
Nations, it is also the view of the Czechoslovak delegation that the distinction
between the obligation of the Secretary-General not to seek or receive instruc-
tions from any government or from any other authority external to the
Organization, on the one hand, and the legitimate right of any government to
convev to the Secretarv-General its views on matters relatine to its interests. on
the ocher hand, must be preserved. These matters nacura16 include questions
related to them~loyment of nationals of member States whether or no1a staff
member or an applicant for ehployrnent has chosen to sever relations with his
government.
The Czechoslovak delegation does no1 seeany substantive grounds for seek-
ing an advisory opinion of the lnternational Court of Justice as regards the
Applicant's claims and believes that the Tribunal's Judgement No. 333should
therefore be sustained.
The Choirmon (interpretation from French): As there are no further
speakers, I therefore declare closed this public meeting of the Committee under
Article VI1 (4) of the Rules of Procedure.
The meering rose ol 12.15 p.m CONTENTS OF TEE DOSSIER 43
B. Orher Documenrs Cired in or Relevonr IO Documents Considered by the
Commitree on Applicorions for Review of Administrative Tribunal Judgernents
or ils Twenly-fourrh Session '
AT/DEC/333
8 June 1984.
9. Administrative Tribunal
Judgement No. 333
Case No. 322: YAKIMETZ Against : THESECRETARY-GENERAL
OF THE UNITEDNATIONS
THE ADMINISTRATN TRIBUNA OLFTHE UNITEDNATIONS,
Composed of Mr. Endre Ustor, President; Mr. Samar Sen, Vice-President;
Mr. Arnold Kean. Vice-President :
Whereas, on 6 january 1984. la di mViirtorovitch Yakimetz, a former staff
member of the United Nations, filed an . .lication in which 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's
United Nations service.
C. To adjudge and declare that no legal impediment existed to his further
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 aoo..or.ate bod. to ei-e
him wch rea5onahle ~.on\ideration for a carrer appointment.
G. To nrder payment in the Applisünr of vÿlüry1o\tduring the period of
unemployment between the expiry of his contract and the reconstitu-
tion of his career.
H. To order reimbursement of expenses. if any, reasonably incurred by
the Applicant in prosecuting this Appeal, such expenses to be deter-
mined by the Tribunal before the close of proceedings.";
Whereas the Respondent filed his answer on 14 March 1984; '
Whereas the Aoolicant filed written observations on 17 April 1984;
Whereas the facis in the case are as follows:
On 20 July 1977, in a letter addressed to the Assistant Secretary-General for
Personnel Services, the Deputy Permanent Representative of the USSR to the
United Nations recommended the Applicant, a national of the USSR who had
been employed by the United Nations in 1969.1974, for a post of reviser (P-4)
Sec alrain Pari IIuf the dossier.documentNo.15. GcneralAsscmblyroolulion
35,210.and documentNo. 45. Reportof thcInternaiionalCi\iSr'r\icCommission 10
the GencralAsrcmbl,. Ihiri).revsntScrsion (A,37/30l44 APPLICATION FOR REYaW
in the Russian Translation Serviceof the United Nations; a Personnel History
form signed by the Applicant was attached to the letter. On 31 October 1977
the Appointment and Promotion Board recommended, and the Officer-in-
C~ar~ U~f ~he Office of Personn~l~ ~~ ~ ~-~ ~seauentlv aon.oved ,n b.ralf of
the Secretary.General. ihc appoinimeni of the Applicant "as a Russian Reviser
at the First Officer (P-4) levclon a fixed-ierni ,ciondmçnt basib for a pcriod of
five ,~~~~". On 23 ~ovember 197~ ~e D~nutv~ ~ief of the ~ecretariai Recruit-
ment Service offered to the Applicant, on béhalfof the SecrGary-General, "a
five-year fixed-term appointment. on secondment from the USSR Government.
at stépIV of the FirG-~fficer (P-4) level, as Reviser in the Russian Service".
On the same day the Secretariat of the United Nations sent a Note Verbale to
the Permanent Mission of the USSR to the United Nations informing the Mis-
sion that this offer had been made. The letter of appointment, which took effect
on 27 December 1977, was issued on behalf of the Secretary-General on 28
December 1977and accepted by the Applicant on 24 January 1978; it did not
mention secondment and, under item 5 ("Special Conditions"). specified
"None". On 5 October 1981 the Applicant was transferred as Programme
Officer to the Programme Planning Section, Programme Planning and Co-
ordination Office, Department of International Economic and Social Affairs.
On 22 October 1982 the Secretariat of the United Nations requested the
as~ ~~ ~ ~ ~ ~ ~e Permanent Mission~of- - ~ ~SR to the United Nations "in
securing the consent of its Covernment to the extension of Mr. Yakimetz's
secondment to the United Nations" for one year, that is UD to 26 December
1983~ On~15 November 1982 the permanent Mission communicated to the
Secretariat of the United Nations "its agreement ta the extension of the contract
of V. V. Yakimetz . .. uo to 26 December 1983". On 6 December 1982 the
Applicant was recommended for promotion to P-5. Effective on 27 December
1982 the Applicant's appointment was extended for one year. The letter of
aooointment, sinned on behalf of the Secretary-General on 8 December 1982
ani by the ~pplicant on 9 December 1982.spccificd under item 5: "On second-
ment from the Governmcni of the Union of Soviet Sociali<t Rcpublics." On 8
Fcbruarv 1983 the Asristant Sccrctary-General for I'roarammc Planniiia and
CO-ordination sent the following memorandum to the Applicant:
"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 alter your current contract expires on 26 December 1983.As
you know it would be only at theend of 1983that you would have received
full training in al1 aspects of the biennial programme planning cycle so
that, as 1 had indicated to you last year, 1believe that it would be in the
interests of the Office to have your services continue.
I would 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."
On 9 February 1983the Applicant applied for asylum in the United States of
America. On IOFebruary 1983he informed the Permanent Representative of
the USSR to the United Nations that he was resienine from his oosition with
the Ministry of Foreign Affairs of the USSR and-frok ail otherofficial posi-
tions he held in the Soviet Government and that he had made an application to
the Government of the United States of America reauestine asviüm. On the
same day the Applicant notified the Secretary-Ceneral: unde;~taff Rule 104.4
(c), of his intention to acquire permanent resident status in the United States of
America: he added: CONTENTS OF THE DOSSIER 45
"For persona1 reasons, including my obligations to the United Nations
as expressed in Staff Regulations 1.3 and 1.9, 1have made an application
to the Government of the United States requesting asylum.
1 have resigned from al1official positions 1 hold in the Government of
the Soviet Union and a copy of my resignation, delivered today to the
Soviet Mission to the United Nations, is enclosed.
1 wish to [assure] 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 . . ."
On 28 Fehruary 1983the Director of the Division of Personnel Administration
informed the Aonlicant that the Secretarv-General had decided to lace him on
special leave wGh full pay, effective 1 ~arch 1983and until further notice, in
accordance with Staff Rule 105.2 (a), and that any other decision pertaining Io
hi~-~ ~ ~ ~ ~d be taken bv the Secretarv-Ceneralat a later staee. On I March
1983,in a letter to the ~irector of thepLision of Personnel ~diinistration, the
Applicant asked to be advised on the following points:
"1. 1should appreciate being advised of the precise reasons as to why
the leave has been eranted. 1 do no1 consider the mere statement of the
language of Rule 16.2 (a), 'for other important reasons', satisfactory Io
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 Io
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 the meantime, 1shall remain actively at my post."
On 11 March 1983 the Executive Assistant Io the Secretary-General informed
the Director of the Division of Personnel Administration that the Secretary-
General had also decided that the A~Dlicantshould not enter the remises of
the United Nations until further notice. On the same day the ~irëctor of the
Division of Personnel Administration answered the questions put by the Appli-
canton 1 March 1983, as follows:
"2. As to your request to be advised of the reasons for the decision in
ouestion. 1 wish to ooint out that in the exercise of his authoritv and
responsibility as the Chief Administrative Officerof the ~r~anizatiin, the
Secretary-General has determined that, at this juncture and pending fur-
t~ ~ ~view. it is in the best interest of the Orea-ization that vou do not
enter the premises of the United Nations. 1 would ask you therefore to
corn~ly with this decision of the Secretary-General with immediate effect
.~~~~&til fu~ ~ ~ notic~.~You will beadvisédin due course of anv modifica-
tion to this instruction.
3. The above also replies, 1 believe. to the questions you raised in
-~:ae-anA 2 /a), ,d ~bl,,f vour.letter. Concernine the -ecommendation
which was made for your promotion, 1am sure that the Appointmrnt and
Promotion Board will give it due consideration a1an appropriate time in46 APPLICATION FOR REVIEW
the course of its proceedings. Finally, as regards your question as to the
possible extension of your appointment, 1 would wish to point out that
consideration of thismatter at this tirne would bepremature. You may also
wish to refer 10 staff rule 104.12 (b) which is applicable to this issue."
On 17 March 1983 the Applicant wrote to the Secretary-General asking for a
review under Staff Rule 111.3 (a)of the decision to place him on special leave
and reiterating his request for awritten explanation as to why it was considered
in the best interest of the Orranization that he did not enter the nremisesof the
UnitedNaiions; headded. hiuevcr, ihat on the advice of hi5 co;n*el and under
protest, he uould of course comply with the Sesretary-Grneral', deci\ion. On
29 June 1983the Applicant uas prornoied to P-5with effcct from I April 1983.
On 25 October 1983 headdressed the follou.ing memorandum to the Assistani
Sesreiary-General for Programme Planning and Co-ordination:
"My fixed-term contract with the United Nations is due to expire on 26
December 1983.
As you will recall we have had severaldiscussionson the prospects of my
continuing employment in the Office for llrogramme and~o-iirdinaiion-.
I would like IO state once again that I have alrays considered it IO be a
rpecial ori\ileae to serre ihe United Nations. Itis my \incere belief ihat
during ihe ele\en years that 1 hai,e been serving the ~r~anization 1 have
aluays tried to perform my duties to my fullest. howe\er Iimited, abilities
I also believe that the intense traininn in al1asnecrsof oroaramme dannina
and budgeting in the United ~ation;that 1receivedoier rhe past <woyeari
while working in the Office for Programme Planning and Co-ordination
has substantially increased my potential usefulness to the Organization.
In view of theabove let me expressmy hope that you will find it possible
on the basis of my performance to recommend a further extension of my
contract with the United Nations. or even better a career appointment."
On 8 November 1983the Assistant Secretary-General replied:
"ln your memorandum of 25 October 1983to me you remind that your
current contract with the United Nations exoires on 26 December 1983.
In ihis connexion I hake reientls signçd your performancereport which
shous ihat the excellent uork you performcd during the fird year uith the
Office for Pronramme Planning and Coordination has been continued to
the full satisfaction of your immediate supervisors. 1am glad to note that
you have fully met Our expectation of continued ~rofessionalism, dedica-
lion to your task and hard-work. which was the basis for your promotion.
1consider you a staff rnember whose contribution over the past two years
10 the work of this Office, and undoubtedly also to the Offices in which
vou have served before. meets the hieh demands of comnetence and com-
kitment which are to be expected from a United ~ations official.
From rny perspectiveas headof this Office, 1find no difficulty in recom-
mending a further extension of your contract and intend to do so at an
appropriate time."
On 23 November 1983the Deoutv Chief of Staff Servicesinformed the Anoli-
cant. "upon insiruciion by theOffice of ihe Secretary-General". that ii wa; "ot
the inteniton of the Organization tu extend his fihed-term appointmeni beyond
itsex~iration date. Le.. 26 Decernber 1983.On 29 Noiembcr 1983rhe Annlicant
proteited against that decision in a letter to the Assistant secretary-Geairal for
Personnel Services which read: CONTENTS OF THE DOSSIER 47
". . .1am shocked al this decision since, in response to my queries, I was
recently informed by the head of the Office in which 1am working that
he intended to recommend an extension of mv aooointment. 1would be
grateful if you could give methe reasons for this decision. In any case, the
procedure followed in arriving at the decision not to renew my appoint-
ment is irregular and arbitrary and contravenes the legal expectancy of
renewal which 1 have as well as my acquired rights under the General
Assembly resolution 37/126, IV, paragraph 5, which States that the
General Assembly:
'decides that staff members on fixed-term appointment upon comple-
tion of five years of continuing good service shall be given every
reasonable consideration for a career appointment'.
1would begrateful for your urgent attention to this matter. The abrupt
manner in which~-he decision was taken and commun~c~ted Io me has no1 ~~ ~ ~
allowed methe opportunity in use the internal recourse procedures thai our
Ornanizaiion hai e\tablished for challencinr decisions of this kind.
in order to permit me to resort meaningfuiiy to these internal procedures
1would be grateful if you could extend my contract for a period of three
months whfie the matter is under investiaation. This request is without
prejudice to my claim to a longer-term appointment in the Organization.
1am by a copy of this letter requesting the Grievance Panel to look into
this case."
On 2 December 1983the Assistant Secretary-General for Programme Planning
and Co-ordination also orotested arainst the decision in question in a letter
addressed to the ~ssistant ~ecretarykeneral for Personnel services; the letter
read in part:
"1 lind ite~irailrdinary that ~ïh a decision should be iaken withoui con-
sulting ihe hcad or the Oifice concerned, especiallyin the case of an officer
with elevenvears of excellent serviceto the Organization. who has received
.a personal &aluation report with the highest;ating only four weeks ago,
was promoted to the P-5 level and was elected Vice-Chairman of the
Appointment and Promotion Committee earlier this year and is currently
in the midst of important assignments for one of which he is in some
ways uniquely well qualified and which are regarded as of considerahle
importance by member States. Bearing al1 these factors in mind 1 had
assured Mr. Yakimetz, shortly after signing his latest performance eva-
luation report, that 1 intended to recommend a further extension of his
contract.
Apart from such matters of principle 1wish to place on record the fact
that this decision if allowed to stand would create severe oroblems for my
Office over the next few months. Since, as you know, Mr. Yakimetz
is barred from entering the Secretariat building the three other profes-
sional officers in the Programme Planning Section have had to assume
Mr. Yakimetz'~-~esnonsibilities for several sections of the 1984-1985~ro-
gramme budget duriitg ihe Asiembly period. Slr. Yakimet7.uar therefore
assigned iull and sole responsibiliiy ior Iwo important report5 thar mu\t be
rumpleted in thc ne;[ three months ior ihc April 1984meeting of CPC and
ha5 been uorking on ihem for the pari several nionth,. To reas,ign thew
reports ai this siage ~ould mean >ipnifizani dclays in their isruance and a
105sin their qualiÏy48 APPL~CAT~ON FOR REV~EW
It is in the best interest of the Office Io continue to have the services of
Mr. Yakimei~. Considering Mr. Yakimetz'\ long and out\titnding record
within the United Nations. 1strongly-r~rommend ihai hi\ appoini. .i he
extended."
On 13December 1983the Applicant requested the Secretary-General to review
the decision not to extend his appointment beyond itsexpiration date; he stated :
"General Assembly resolution 37/126, IV, paragraph 5, states that 'staff
members on fixed-term contracts upon completion of fiveyears of continu-
ing good service shall be given everyreasonahle consideration for a career
appointment'. Staff regulation 4.4 requires that . .. 'the fullest regard
shall be had, in filling vacancies, to the requisite qualifications and
experience of persons already in the service of the United Nations'. Staff
rule 104.14 (a) (ii) says that 'subject to the criteria of Article 101.
paragraph 3, of the Charter, and to the provisions of staff regulations 4.2
and 4.4, the Appointment and Promotion Board shall, in filling vacancies,
normally give preference, where qualifications are equal, to staff memhers
already in the Secretariat . . .'Article 101 (3) of the Charter and staff
regulation 4.2 giveas the 'Paramount consideration' . . .'the necessity for
securine.the hiahest standards of efficiencv. comoetence and inteeritv'.
My Departmint has madc itclear to mi ihat in iheir view I havemet
thosc standards. My performance was raied 'exselleni' in my mosi rcccnt
Performance Evaluation Report. I was rccenily promoted to P.S. I war
given in understand on many occasions, both verbally and in writing. ihat
my Depariment iniended to recommend a furiher extension ofmy appoini-
ment or conversion to a career position. The most recent assurance was a
memorandum to me dated 8 November 1983from the Assistant Secretary-
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 time.'
I understand that such a recommendaiion has been made. I ha\e ai al1
lime\ iriedIO govern myconduct in accordance with the leticr and the spirit
of the Staff Rules and the terms and conditions of mv contract with the
United Nations. My Performance Evaluation Report indicates that 1enjoy
harmonious relationships with my collea~ues. 1was elected Vice-Chairman
of the Appointment and promotion cornmittee earlier this year, a position
of some trust.
Given this servicerecord and these assurances. and after sixvears of con-
iinuour service, most staff members would have an expectancy that their
candidacy for a carccr appointment would be 'given everyreasonable con-
sideration', as General Assembly resoluiion 37/126 IV requires. The con-
içsied adminisiraiive decision appears IO preclude such rea,onable con-
sideration. 1he inicresis of goud administration cannot be servcd by the
interruption of the work with which 1have been entrusted by my Depart-
ment. 1can think of no impediment to the forwarding of my name tu the
Appointment and Promotion Board except factors extraneous to my per-
formance. The suoted General Assemblv resolution olaces no restrictions
as io eligibility. nor do staff regulaiions~4.2 and 4.4nor \taif rule 104.14
/a) (li).Exiraneous factors ma). noi be used as a consideraiion in promo-
tion, extension, transfer or in any of the areas where the paramount con-
sideration must be the necessity of securing the highest standards of effi- CONTENTS OF THE DOSSIER 49
ciency, competence or integrity. Extraneous factors may not be used to
deny a candidate for a post fair and reasonable consideration, a position
upheld in Tribunal Judgement No. 310 (Estohiol).
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. I reswectfullv request that the Administrative decision be
withdrawn and miname forwarded to the appropriate Appointment and
Promotion body for reasonable consideration . . ."
In a reply dated 21 December 1983,the Assistant Secretary-General for Person-
nel Services stated :
". . .In your letters, after referring to your servicerecord and the evalua-
tions of vour suuervisors. vou state that under such conditions 'most staff
niembcr; would hac ah.cpestancy thai thcir candidacy for a sarccr
appoinrmcnt would be "gi\en c\cry rca\unable consideraiion". 3s Gcncral
Asscmblv rc\i)luiion 37/126 IV rcauirc,'.
Your situation, however, is not ;imilar to that of 'most staff members'
with comparable service records, because your present contract was con-
cluded on the basis of a secondment from vour national civil service. At
the time your prcscni appointment sas made your Ciovcrnmrnt agreed IO
rclcarc you for wrvice under a one-ycdr coniraci. the Organization rigrceci
so to limit the duration of vour United Nations service. and vou yourself
were aware of that arrangément which, therefore, cahnot give iou any
expectancy of renewal without the involvement of al1the parties originally
concerned.
Furihcrmorr. you are scrting undcr a fihcd-icrm appriiniment. u,hich. a\
c~prcisly r>ro,,idedin siail rulc IO412 th/and reiicraicd in your Ieiicr of
appointkënt, 'does not carry any expectancy of renewal or of conversion
to any other type of appointment'.
In viewof the foregoing, the reasons advanced by you in your memoran-
dum of -- -ecember do not reouire the Secretarv-General to alter the deci-
sion communicated to you by ietter of 23 ~ovémber 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 pre-
pared to agree to the direct submission of your case to the Administrative
Tribunal."
On 6 January 1984 the Applicant filed the application referred to earlier.
Whereas the Applicant's principal contentions are:
1. No legal impediment existed at the time of the contested decision, or exists
now, to the continuation of the Applicant's service with the United Nations:
/al the Aoolicant was not in anv leeallv coanizable sense on secondment:
;bJ aficr ib February 1983. ihc kesiondeni-had neiihcr the obligation nor the
righi to solicit or receive insiructionï as io the Applicant (rom ans auihoriry
extraneous to the Organization;
(c) no legal constraint existed, after 26 December 1983,on the Applicant's fur-
ther appointment to the United Nations.50 APPLICATION FOR REVIEW
2. The Applicani had a legally and morall? ju\tiiiahle e.;pr:tancy 0i Cori-
iinued United 'laiions employineni, and a rizht to rea\onablc con~irlerxiionfor
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 entitlement, inclnding any legally cognizable expec-
tancy, 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
cognizahle expectations :
(i) the circumstances relatine to secondment could not have created an
expeitansy. The çrparati& from governmeni service during periodot'
United Natioii\ appointmeni did not rrsulr in newierms ol~~oiiiractn'!th
United Nations;
(ii) the commendations by supervisors did not commit the Secretary-
General to extend the appointment. The pre-conditions to consideration
of rea~~ointment by the A~vo..tment and Promotion Board were not
fuifiilid;
(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:
(O) in reaching his decision, the Secretary-General took into account al1the cir-
cumstances in the case;
(b) in taking his decision in the case, the Secretary-General acted in the interest
of the Organization.
The Tribunal, having deliberated from Il May to 8 June 1984, now pro-
nounces the following judgement:
1. In this case the legal issues involved are interspersed with political con-
siderations. TheTribunal can however deal only with the legalissues, which are:
(a) whether the Applicant's work with the United Nations in different periods
created a legal expectancy for further service with the United Nations;
(b) whether, and if so to what extent, paragraph 5 of General Assembly
resolution 37/126, IV, of 17 December 1982 which reads
"Decides that staff memhers on fixed-term annointments unon com~le-
lion of fiveyears of continuing good serviceshaiibe given everi reasonahle
consideration for a career appointment"
has been carried out;
(c) the consequences of the application of United Nations rules and regula-
tions in relation to the United States law on resident status and citizenship.
The issues mentioned above are not independent of each other; sometimes
they overlap and al other limes conclusions reached on any of them influence
those on others.
II. As regards the controversy about the legal expectancy for further service
with the United Nations, the Tribunal notes that although there was no
reference to secondment in the Applicant's letters of appointment of 21 CONTENTS OF THE DOSSIER 51
November 1969and ZR Deceniber 1977.hi? third and lasr lctter of appointmeni
dated 8 Derember 1982included a "special condition" that he was "on second-
ment from the Government of the union of Soviet Socialist Republics". He
accepted this letter of appointment without objection, and in fact he had
accepted without comment the Respondent's letter of 23 November 1977which
had vreceded the letter of avoointment of 28 December 1977and which had
state-dthat he was offered a Ge-year lixed-term appointment "on secondment
from the USSR Government".
III. A Note Verbale from the Resoondent to the Permanent Mission of the
USSR dated 23 November 1977stated that the Applicant's five-year fixed-term
appointment was to be on secondment from the USSR Government, as did a
sgilar Note sent by the Respondent to the Permanent Mission on 22 October
1982seeking the consent of the Government of the USSR to the extension of
the Applicant's appointment on secondment for a further year. The Permanent
Mission of the USSR replied on 15 November 1982communicating ifs agree-
ment to the extension of the Applicant's appointment.
From the foregoing, it can be concluded that al1three parties (the Respon-
dent, the Government of the USSR and the Applicant) considered the Appli-
cant's appointments of 28 December 1977 and 8 December 1982as being on
secondment from the Government of the USSR.
IV. In his letter of 21 December 1983addressed to the Applicant, the Respon-
dent concluded that, since the involvement of al1 parties concerned was
necessarv for the renewal of the Aoolicant's aooointment. such renewal was
impossible in the circumstances. ~hiiaccords wiih the analysis of secondment
in the Tribunal's Judgement No. 92 (Hiaainsl as requiring the agreement of the
"three oarties 10 thé arraneement. nirielv. the releasine oréanization. the
receivingorganiration and thestaff Aembercbncerned" (para. f1)and with the
decision of the Tribunal in paragraph V of Judgement No. 192 (Levcik) that
"any subsequent change in the terms of the secondment initially agreed on, for
example its extension. obviously requires the agreement of the three parties
involved".
V. The Respondent's letter of 21 December 1983 also relied, as does his
answer to the application, on Staff Rule 104.1(b),reiterated in the Applicant's
letter of appointment. which provides that a fixed-term appointment "does not
carry any expectancy of renewal or of conversion to any other type of
appointment".
VI. Aoolvine the orincioles followed in Judnements Nos. 142 fBhalla-
charyyajand 205 (~l-&go,), it does not appearthat the Applicant has pro-
duced evidenceof circumstances sufficient to establish that he had a legal expec-
tancv of anv,t,.e of further a..ointment followine-the end of his fixed-term
appointment.
VII. This conclusion needs no modification in the light of two other related
areuments out forward bv the Aoolicant. First. it isasserted that the Aoolicant's
cinectionrwith the USSR Gové;nment was at best tenuous and informal and
that his relationshio with "the Ministry of Foreign Affairs was nominal rather
than real". In support, the ~~~licant points out that in his first and second
applications for employment with the United Nations, he answered in the
negative the question "Are you now, or have you ever been, a permanent civil
servant in your government's employ?". However, in his application in 1969he
had stated that he was a senior teacher at the Moscow Physical Engineering
Institute. Moreover. in his letter of 10 February 1983 to the Permanent
Representative of the USSR to the United ~ations, he stated that he was
"hereby resigning from my position with the Ministry of Foreign Affairs of the52 APPL~CAT~ON FOR REV~EW
USSR and from al1other official positions 1 had in the Soviet Government".
He wrote to the Secretary-General in similar vein on the same day.
V111.The Applicant's secondargument is that even if secondment existed or
place from 10 February 1983onwards when he resigned from the service of theook
USSR Government, and that in fact a new contractual relationship could be
assumed to have been created between him and the Resoondent. He areue-that
the Re5pondeiii. by noi iaking disciplin3ry action againpi hini. by promoiing
him. hy allowing him io serve out hi contraçi uniil the date of iis e~piry (26
Decrmber 1983)...d bv lettin~h-in coiitinuc as Vice-Chairman of the ADDo..i.
ment and Promotion Committee, created a new, although tacit, agreement in
which the Soviet Government was not in any way involved.
IX. The Tribunal notes that aoart from the measures described above. the
Respondent also put the Applicani on special leave. whichhehad not askedfor,
and ordered that the A~~licant's entry to the United Nations Headquarters
building be barred. He siates that the~~~licant's promotion was no more than
a consequence of his earlier good service. On Il March 1983the Respondent
wrote to the Applicani that these steps were taken in the best interests of the
Organization and advised him that "as regards .. .the possible extension of
your appointment, 1would wish to point out that consideration of this matter
at this time would bepremature. You may also wishto refer to Staff Rule 104.12
(b) which is applicable to this issue". This rule stipulates that the fixed-term
appointment "does not carry any expectancy of renewal ofor conversion to any
other t,.e of a..ointment". The Resoondent furtherareues in hisanswer to the
application ihït a hreak bciuccn a \taif niembcr and his gorcrnment does not
"constituic in ii<elfground\ for tcrmiiiaiinp the fixed-ierm contraci of a fixed.
term staff member seconded or not". In ;ts consideration of the confiicting
arguments, the Tribunal finds that the events leading to and following from the
ADDiicant'sresinnation from the service of the USSR Government throw much
light for the resilution of this controversy.
X. In September-October 1982, the Assistant Secretary-General for Pro-
gramme Planning and Co-ordination discussed with the Permanent Mission of
ihe USSR a t~o-~ear extension for the Applicant's service with the United
Nations, but apparently accepted that Mission's argument that "for technical
reasons it was easier to DroDoseextensions one year at a time".
XI. About the same tim; evidence was available that the USSR authorities
were contemplating replacing the Applicant by another person whom they had
alreadv selected and whom thev wished to be trained further bv the Aoolicant.
It was~suggestedto him that héshould leave for Moscow earlyin 198j for this
purpose, but his application for leave was refused by the United Nations.
XII. The Aoolicant was entitled to act in anv.wav .e considered best in his
interest. but hi kusi neser5arily face ihc consrquences for hi\ actions In so Iïr
ab hc was on ccsondment from the USSR Governmeni. none of the aciions he
took could brine about anv leeal exoectancv of renewal of his aooointment. If
his fixed-term appointment were not based on secondment hécould. in the
juris~rudence of the Tribunal. have in certain circumstances ex~ectation of one
iind-or anoihrr for an extension, but sush a situation did noi arisc. Anoiher
consequence of hi\ actions raised the question of his suitabiliiy as an interna-
326 IFischmon). the Tribunal refcrred IO
tional civilservant. In Judaemeni No.
the widely held belief mentioncd in a report of the~ifth Committee of the
General Assembly that
"International officials should be true representatives of the cultures and CONTENTS OF THE DOSSIER 53
personality of the country of which they were nationals, and that those
who elected to break their ties with that country could no longer claim to
fulfil the conditions governing employment in the United Nations",
and held that this "must continue to provide an essential guidance in this
matter".
In the same judgement, the Tribunal also recalled a part of Information Cir-
cular ST/AFS/SER.A/238 of 19January 1954 which stated, interolio, that
"The decision of a staff member to remain on or acquire permanent
residence status in .. . lthel countrv lof his dutv station1 in no wav
represents an interest of the ~.nited ~ations. On the contrary,'this decision
may adversely affect the interests of the United Nations in the case of inter-
national~~recruited staff members in the Professional category ..."
The Applicant had been granted asylum in the United States of America and
there arose the oroblem of his havine to waive orivileees and immunities with
the permission of the Respondent. such a waiver'wasnkessary for changing his
visa category under the United States laws. However there was apparently no
immediaÏe vroblem and it seems that no reouest was made to the ~esoondent
for agreeing to the Applicant waiving his privileges and immunities. Besides, a
private bill was later introduced on the Applicant's behalf in the United States
House and Senate
XIII. In viewof the foregoing, theTribunal concludes that during the period
of his service with the United Nations the Applicant was under secondment
which. as alreadv stated. could not be modified exceot with the consent of al1
three Parties anothat no'tacit agreement existed betwéenthe Applicant and the
Res~ondent between 10 Februarv 1983 and 26 December 1983 channinn the ..
chaiacter of their relationship.
XIV. With these conclusions in mind the Tribunal considered the Applicant's
~lea that he was entitled to. but was denied. the rinht to receive "every
keasonahle consideration" in terms of paragraph5 of ~eneral Assembly resoli-
tion 37/126, IV, of 17 December 1982.
XV. The Tribunal notes that until the end of November 1983. there was no
reference to this resolution either by the Applicant or the Respondent. Before
this time, the only mention of a career appointrnent occurssually in the Appli-
cant's memorandum of 25 October 1983in which he exoressesthe hooe to the
Assistant Secretary-General for Programme Planning and Co-ordination that
he would find it possible "on the basis of my performance to recommend a fur-
ther extension of my contract with the ~nited Nations, or even better a career
appointment" without however citing the General Assembly resolution. A series
of letters, memorandums and other communications existsrelating to the Appli-
cant's continuation witb the United Nations: al1of them consider extension of
his current contract and nonc of [hem refers IO the General Açscmhly resolu-
tion. In his lctter of 29 Noremher 1983tu the Assistant Sccretary-Ccncral for
Personnel Services the Aoolicant drew for the first time the attention of the
Respondent IO Gencral ~;;cmbly resolution 37/126. IV. paragraph 5. A tullcr
argumentation un the ha\is of this plea occurs in the Applicant's letter of 13
Decemher 19R3.Theïribunal notes in this conneciion that as çarlv a\ 3 Marih
1983, the Director of the Programme Planning and Evaluation d ranch con-
cluded his memorandum to the Assistant Secretary-General for Programme
Plannine-and Co-ordination bv statine- "Mr. Yakimetz has indicated to me his
willingness to continue to work, unless his current status would prevent him
from so doing. Your guidance will be verymuch appreciated." There isno reply54 APPLICATION FOR REVIEW
to this memorandum in the filesand theTribunal isleft with the impression that
the Applicant's plea based on the General Assembly resolution came much later
in the proceedings.
XVI. However, even if the Applicant did not draw sufficiently early the
Respondent's attention to the resolution under discussion, the Respondent was
bound nonetheless by its terms and theTribunal has to decide how and to what
extent he carried out his obligations under it.
The Respondent's letter dated 21 December 1983,addressed to the Applicant
in reply to his counsel's letter of 13 Decemher 1983. states that he has "given
careful consideration to the issues raised in vour reauest for administrative
review". and since these issues are particularl; related'to the provision of the
General Assembly resolution in question, the plain and simple inference is that
the Resoondent had eiven the reauired Le.. "everv reasonable") consideration
for a career appointment for thé~~~iicant. ~his.is further elaborated in the
Respondent's answer to the application when he states:
"Respondent notes that the General Assembly only stated a desi-
deratum. namelv. ..at fixed-term aoooi..ees be eiven-reasonable con-
sideration;the Assembly did no1specify new procedures for effecting such
consideration, or suaeest that existing urocedures not be utilized. and did
not convert fixed-ter; aooointments Gnrobationarv aooointments. whose
holders must, as a matte; of right, be ieviewed b~the'~~pointm~nt and
Promotion Board before being separated after two years of probationary
service. Respondent therefore submits that, in the absence of such
specification. suggestion or conversion, the existing procedures under the
Staff Regulations and Rules, which form an integral part of al1 staff
members' terms of appointment, including Applicant's, remain appli-
cable."
XVII. To this the Applicant replies that the Respondent cannot argue that
the pre-conditions to consideration of reappointment by the Appointment and
Promotion Board were not fulfilled, since he himself prevented their
fulfillment.
XVIII. The General Assembly resolution is silent on who should give "every
reasonable consideration" and bv what orocedure. That this latter ouestion
needed elucidation is evident from a sibsequent resolution of the ~eneral
Assemblv adooted on 20 December 1983. i.e.. s.x davs before the Aooiicant's
fixed-terk apiointment came to an end. The relevant part of this ;isolution
(38/232, VI, para. 5) reads:
"Recommends that the organizations normally dispense with the
requirement for a probationary appointment as a prerequisite for a career
appointment following a period of five years' satisfactory service on fixed-
term contracts."
The Tribunal holds that until the Respondent has accepted the recommendation
made bv the General Assemblv on 20 December 1983.the existine oro-.dure of
offering a probationary appointment to a cdndidatc remains applicable. and
ihat in the absence ofsuch an appointment iiis left to the Respondent to decide
how "everv reasonable consideration" for a career aooointment should be aiven
to a staff member under General Assembly resolution 37/126. IV, paragraih S.
In the preseni case. the Respondent had the sole authority to decide what
constituted "reasonable consideration" and whether the Aoolicant could be
given a probationary appointment. He apparently decided, in the background
of secondment of the Applicant during the period of one year from 27 CONTENTS OF THE DOSSIER 55
December 1982to 26 December 1983, that the Applicant could not be given a
probationary appointment. He thus exercised hi;-discretion properly,but he
should have stated explicitlybelore 26 December 1983that he had given "every
reasonable consideration" to the Applicant's career appointment.
XIX. In this context, the Rosescu caseIL0 Administrative Tribunal Judg-
ment No. 431 of II December 1980)has been cited by both the Applicant and
the Respondent, but their interpretations of its considerations are widely
divergent. In the present case, different in many material respects from the
Rosescu case, there has been no allegalion, and far less any evidence, that the
Resnondent soueht instructions from anv member States. or that he had in any
manner let the Gshes of a member ~tat<~revail over the interests of the ~nited
Nations and thus disregarded his duties under Article 100. paragraph 1. of the
Charter. Indeed. he staÏes al1throunhout that the measures he took were in the
intcrests of the United Nations taking into account al1the facts. '.iogether utth
the reprerentationr IOdiverse effect by the permanent missions of two metnhcr
tat tes".
In Judgement No. 54 (Mouch), the Tribunal stated that:
"While the mearure of pouer here wa\ intended 10 bc left cornpletely
uithin the dissretion of the Secretary-Gcncral, this would no1authori7c an
arhitrary or capriciousexcrsise of the potver ot'terminaiion. nor the asrign.
ment of specious or untriithlul reasons ior the action iaken. ïuch ar would
connorc a lask 01aood faith or due sonridcration ior the rights of ihe riait'
member involved?
In the prerent case. the Tribunal holds tbat the Rerpondent's action in the cxer-
ci,e of hir dircretion sannot be impugned on any of the grounds rtatcd ahoie.
XX. In viewof the abo\,e. the Tribunal holds that the A~plicant'r plcas ;an.
not be sustained. The ~ribunal would however express itLdissatisfaction with
the failure of the Respondent Io 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 resolu-
lion. However, this omission on the part of the Respondent has not caused any
discernible injury to the Applicant and he is therefore not entitled to any
monetary relief.
XXI. Accordingly, and subject ta the comments made in the preceding
paragraph, the Tribunal rejects the application.
(Signatures)
Endre USTOR,
President.
Samar SEN,
Vice-President
Jean HARDY,
Executive Secretary
Geneva, 8 June 1984.56 APPLICATION FOR REVIEW
STATEMENT BY MR. ENORE USTOR
1concur in the Judeement as in mv view the reiection of the Aoolication is
fully justified. 1 cannot, however, aicePt some parts of the reas/ning.
1 agree with the finding that the Applicant's appointment had satisfied the
requiiements of secondment as set oÜt~bythis ~nbunal in earlier Judgements
(Nos. 92: Higgins and 192: Levcik). 1 believe. however. that the doctrine
developed in this respect by the Tribunal-based on the very nature of the con-
cept of secondment-precludes nut only the extension of a seconded fixed-term
appointment but also its conversion to any other type of appointment without
the consent of the aovernment concerned.
In view of the above, the Applicant was in my view not eligible for considera-
tion for a career appointment. In any event, the Applicant, in view of the cir-
cumstances in which he elected to break his ties with his country. "could no
longer claim to fulfil the conditions governing employment in 'the United
Nations" and could not expect that any consideration would lead to his career
employment. As the Respondent exercised his discretionary power correctly by
refusing the requests of the Applicant, he does not deserve the disapproval
expressed in the Judgement.
(Signed) Endre USTOR.
Geneva, 8 June 1984.
OLSSENTINC OPINION OF MR. ARNOLD KEAN
1. Although 1can concur in the viewof my colleagues that the Applicant was
employed by the United Nations on secondment from the Government of the
USSR for the whole of his final fixed-term appointment. and with the rejection
of the Applicant's claim in so far as it is based on an expectancy of further
employment, 1 regret that 1 cannot concur in the conclusion reached by the
maioritv Judaement.
2 ~he ma7ority Judgcment docs not, in my view. adequately consider
whciher the Respondeni ga\,educ effcci tu CiencralAssembly rcsolution 37/ 126.
paragraph IV.5, the relevant part of which reads as follows:
[The General Assembly] "Decides that staff members on fixed-term
appointments upon completion of five years of continuing good service
shall be given every reasonable consideration for a career appointment."
It will be observed that consideration for a career appointment was not
expressed in the resolution to be conditional on the staff member having alegal
expectancy of a further appointment. The resolution, although not yet incor-
porated in the Staff Rules, was nevertheless a condition of the Applicant's
employment, binding on the Respondent, who must have been fully aware of
it (Judgement No. 249: Smith).
3. The Resoondent does not disoute that the Aoolicant had. bv 1983. com-
pleted more than five years of satis.factory service fixed-term appointments,
so that he fell within the terms of the resolution. The Respondent does, how-
ever, contend in paragraph 17of his answer that the relevant paragraph of the
resolution (para. IV.5) only stated a "desideratum". This contention is without CONTENTS OF THE DOSSIER 57
foundation, because the General Assembly expressly used the word "decides"
in paragraph IV.5, while in cases where it was only expressing a desideratum
(paras. IV.7 and V) it used the word "requests", or, in paragraph IV.3 and 4,
the word "recommends". The contrast in the choice of verb is striking and was
no doubt deliberate: Paragraph IV.5 must be regarded as a decision of the
General Assembly which the Respondent was nbliged to obey.
4. The decision taken by the Respondent in pursuance of General Assembly
resolution 37/126, paragraph IV.5, was. however, discretionary. The IL0
Administrative Tribunal, in its Judgment No. 431(Rosescuj, has considered the
extent to which such a discretionary decision is subject to review:
"Although a decision on the extension of an appointment is a discre-
tionary one, it does not fall entirely outside the scope of review by the
Tribunal. The Tribunal will set it aside if it is tainted with some such flaw
as lack of authority, breach of formal or procedural rules, mistake of fact
or of law, disregard of essential facts, misuse of authority or the drawing
of clearly mistaken conclusions from the facts." (Para. 5.)
This principle is similar to that adopted by the United Nations Administrative
Tribunal in Judaement No. 54 (Mauch). The Res~ondent has submitted in his
answer to the aiplication (para. 21) that "the décisionnot to re-appoint the
Applicant was properly based . . .on the interests of the Organization". This
would not, however, shelter the Respondent from review of the question
whether the decision was tainted by some such flaw as is referred to in the
Judgements cited ahove.
5. The A~~iicant received from the Administration two letters in which his
claim was rejected. The first, dated II March 1983, was from the Director of
the Division of Personnel Administration. It stated that consideration of the
possible extension of the Applicant's appointment would be premature at that
time. It also referred the Applicant to Staff Rule 104.12(bj which provides that
a fixed-term appointment does not carry any expectancy of renewal or of con-
version to any other type of appointment.
6. The other letter giving reasons for the rejection of the Applicant's claim
was from the Assistant Secretary-General for Personnel Servicesand was dated
21 December 1983. If stated the Respondent's view as follows:
". . . your present contract was concluded on the basis of a secondment
from your national civil service. At the time your present appointment was
made vour Government arreed to release vou for service under a one-vear
zontr&i. the Organizaiioi agrccd so io liniii the durarion oi your un-iied
Nations scr\i:e. and you your$elf ucre asarc of ihai arrangcnleni rhich,
therefore, cannot giveyou any expectancy of renewal without the involve-
ment of al1the parties originally concerned." (Emphasis added.)
7. Thi argument was. by ils rerms. addrcssed io "eipecianc) of renewal",
as (ras the icnor of the uholc leiter. pariicularly in ii, rcfrrense io Staff Rule
1U4.1? , ,.11Maseiidenilv the bclieioiihe \i,riter of the Icirrr rhai. if the . .li-
cant had no expectancy 0.f renewal, there was no possibility of his receiving a
career appointment in pursuance of the General Assembly resolution. That
resolution is, however, not conditional upon the staff member having an expec-
tancy of further employment, which is therefore in no way a prerequisite of a
career appointment.
8~ ~ ~~ ~ ~ ~actor which. accordine to the Administration's letter. was
rcgarded hy ihr ~rsiondenr a; deciriiel;obviating iiiriher conrideraiion <ifrhe
Appli~ant for a sareer appoinimcni rinder the Gencral A\remhly re$olurion, ras58 APPLICATION FOR REVIEW
that his existinn fixed-term aonointment was on the basis of secondment under
a one-year contract, by which."the Organization agreed sa ta limit the duration
of your United Nations service". This su~nosedlv agreed limit was exnressed in
the letter ta apply ta service generally, and not onl; ta service on secondment.
9. The supposed agreement by the Organization might have been either
expressed or implied. No evidence has been produced of any expressed agree-
ment and it must be considered whether any such agreement is implied in the
nature of secondment. The Applicant's secondment ended on 26 December
1983, and the auestion therefore arises whether. on that date and bearine in
mind that he had previously resigned any posts he had held with his Govern-
ment, he was then obliged ta return to its service. In its Judgement No. 92 (Hig-
gins), paragraph IV, where the Tribunal considered the nature of secondment,
there is reference only to rights of the seconded staff member, and no reference
to or implication of a duty on his part to return ta the service of the releasing
organization. Clearly, as indicated by the Tribunal in Judgement No. 192(Lev-
cik), the staff member's secondment cannot be confirmed or extended without
the consent of the releasing government, but, in the words of the IL0
Administrative Tribunal in Judgment No. 431 (Rosescu), paragraph 7: "if the
Romanian authorities had .. . wanted ta have the complainant back again,.. .
they would have needed his consent".
10 .n the Applicant's case, there was in the circumstances no possibility, and
no desire on the part of the Government or of the Applicant, that he should
reioin the serviceof that Government. from which hehad recentlv resiened. 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 lime, by the United Nations, however valuable or necessary his
services might be. It cannot be believed that the Respondent would ever have
been a party ta so unreasonable an agreement, bearing in mind the provision
of Article 101.3of the Charter of the United Nations that "the paramount con-
sideration in the employment of the staff...shall be the necessity of securing
the highest standards of efficiency, competence, and integrity" (emphasis
added).
II. Guidance may be derived from the travaux préparatoires used by the
General Assembly in vre~aring the resolution in auestion. which indicate that.
when it came ta considering a ieconded staff member foacareer appointment;
it was generally agreed that the views of the Government concerned should be
"fully taken into acconnt". The relevant passage (para. 33) of Annex 1to the
Report of the International Civil Service Commission (ICSC), 1982 (General
Assembly Official Records, 37th Session, Supplement No. 30 (A/37/30)) reads
as follows:
"The Commission recommends that, upon completion of five years of
service, each employee be given every reasonable consideration by the
employing organization for a career appointment. With regard to staff on
secondment, the majority of the members of the Commission stressed the
need for each organization, in situations when it wished to retain the ser-
vices of the staff member bevond the neriod of the initial agreement. to
take fully into account the vfews of théreleasing g&ernmeG. The other
members, while not objecting ta this, felt that this should not in any way
prejudice the individual rights of the staff member."
Far from there being a generally accepted rule that in the absence of the
government's consent a seconded staff member must always be refused, in
limine, a career appointment at the end of his period of secondment, this CONTENTS OF THE DOSSIÈR 59
paragraph rnakes it quite clear that the government's view was not to be decisive
but was to be fullv taken into account toeether with al1 other relevant factors.
The report of the.1~~~ does not indicate-how much weight, if any, should be
given to the views of the releasing government if the effect of refusing its con-
sent could not have been to recover the staff member for ils own service (which
in the circumstances of the Applicant's case was clearly impossible) but only to
Drevent his future ernployment by the United Nations.
12. For the foreeoine reasons.rnv oninion is that the Resoondent's decision
uas flaued by fun&mc~tal mirtake; oi fait or law and rcquircs to hc set mide.
and thal the Tribunal should acccpt the Applicant's plea thai he uas illegîlly
denied his right Io reasonable conSideration-for a caÏeer appointment
(Signed) Arnold KEAN,
Geneva, 8 June 1984.
A/AC.86/2/Rev.3
25 March 1983.
10. Rules of Procedure'
Article I
1. The proceedings of the Cornmittee shall be governed by the rules of pro-
cedure of the General Assembly applicable to comrnittees.
2. In addition to the aforementioned rules of procedure of the General
Assemhly, the following special rules, set out in Articles II Io XII below,
relating to applications under Article II of the Statute of the United Nations
Administrative Tribunal shall apply.
' -~~~~~~~~~~~ ~ ~ ~ made in the maiorit. .udeemen" to Judeement N-. 326
(Fischmon), a decision made previausly during the present sessionof the Tribunal. This
referred to a report of the Fifth Coinmittee, dated 1953c. A/2615, para. 70).recording
a "widelvahared view" that "international officials should be true reoresentativesof the
culture and personality of the country of which they were natianalr, and that those who
electedto break their ties with that country could no longer claim to fulfil the conditions
governine emolavment in the United Nations". Consideration of this view reauires cau-
Lionbecausethe next two paragraphs of the report (paras. 71and 72)record th& Iwo pro-
posais inconsistent with that view wereput forward, one by the representative of Czecho-
slavakia (which was reiected) and the other bv the reoresentative of Lebanon iwhich was
acceptedby a majority vatej. Bath proposal; were concerned with the quat& ta which
officials who had broken their ties with their country should be assigned for the purposes
of geographicaldistribution,a question which would have beenmeaninglessif il had been
accepted that such officials "no longer fulfilled the conditions governing employment in
the United Nations".
The Committee adapted provisional rules of procedure at its first meeting on 16
October 1956 which were amended at its meetings on 25 October 1956(A/AC.86/2),
21 January 1957 (A/AC.86/2/Rev.l) and 11 December 1974 (A/AC.86/2/Rev.Z and
A/AC.86/19). At its twenty-second session the Committee carried out a comprehensive
reviewof its procedures and al ifs meeting on 16February 1983adopted the rules set out
in this document as ifs definitive rules of procedure (A/AC.86/28).60 APPLICATION FOR REVIEW
Article II
1. Applications asking the Committee to request advisory opinion of the
International Court of Justice shall be submitted in writinn to the official
designated by the Secretary-General to serve as Secretary of thécornmittee. For
the purposes of paragraph I of Article II of the Statute of the Administrative
Tribunal, the dateof the judgement shall be considered to be the date on which
it has been received by the parties to the proceedings before the Tribunal, which
date shall he presumed to be two weeks after the dispatch of copies thereof by
the Executive Secretarv of the Tribunal. For the ourooses of oa.aer-oh 2 of
Article II oi the ~tat;ie. the date of the reccipt oi a;, application is ihe date
when sopieï ofthat application are dispatched io the members of the Commitiee
bv the Secretary of the Committee'
-2. The application. e.xceptfor any annexed documenir. shall bc submitied in
any of the six languages oi the Ceneral Assembly and shall bc as brief as possi-
ble. in no event exceedine 12 oaaes. It shall contain the followine-information.
which should be set out% the order indicated below:
(a)The number and date of the judgement concerning which a review is
desired, and the names of the parties with respect to which the judgement was
rendered.
(b) The full name of the applicant for review, and bis address or that of his
renresentative for the nuroose of the oroceedines. If the aoolicant for review is
one who has succeeded to'the rights O; the persin in respecfof whom the judge-
ment was rendered on the latter's death, this fact, together with supporting
evidence includine relevant data nertainine to the succession. shall be set forth
(CJA statemen't setting forth detail Ïhe grounds of theapplication under
.arag-aph 1of Article IIof the Statute of the Administrative Tribunal and the
supporting arguments.
(d) A list of any supporting documents which are annexed to the application.
Arlicle III
1. Upon receipt of an application the Secretaryshall as soon as possible have
it (excluding any annexed documents) translated into the other languages of the
General Assembly and thereafter immediately communicate it to al1members of
the Committee. as well as Io the aoolicant for review and to the other oartv or
parties to the proceedings before ihe Administrative Tribunal, togeth& wiih a
copy of the judgement to which it relates and an indication of where any
annexed documents may be examined. Any document annexed to the applica-
tion that is not available in English or French shall be translated into one of
those languages at the request of any member of the Committee, except that no
translation shall be made without the approval of the Committee if the docu-
ment to be translated exceeds five pages.
2. Notwithstanding paragraph 1, if an application manifestly does not com-
ply with the requireie"ts of Article II, parairaph 2, above. the Secretary, with
theapprovalof the Chairman or in his absence theRapporteur. shall, if the non-
ThcCommiiiceagrccdihai ihcpcrtodof i~o wccks rcfcrredIOinihcwrond scnicnie
of this paragraphrhould hatc ihc siaiusof a prîsumptiunonly. so ihatiuould beopen
io ciiherpîrlyIO ihc prmeedingsta <houihai the aciualdaic of recelpiof a~udgcmeni
drl,,ercd by the AdminirirîiivcTribunal uxr lairr ihan iuouecks afier iir Jirpiiihy
the ExecutiveSecretary(A/AC.86/28, para. 4). CONTENTS OF THE OOSS~ER 61
comoliance amears susce~tible of correction. return the aonlication to the
applicant with a request that it be corrected and resubmitted'within one week
of the date of return if the applicant is located in New York or otherwise within
three weeks. If the application is not resubmitted in correct form within the
indicated time-limit or if it does not appear to be susceptible of correction, it
shall be considered to be irreceivable and the Secretary shall so inform the
applicant'.
Article IV
1. The other party to the proceedings before the Administrative Tribunal or
each of the parties in those cases where the application is made by a member
State mav. within one week from the date onwhich a coov of theannlication
was communicated in accordance with paragraph 1 of ~;;cle III abbe if the
party is located in New York or otherwise within three weeks, submit in writing
to the Secretary its comments with respect to the application.
2. Comments of a party, or parties, shall be submitted in any of the six
languages of the General Assembly and shall in no event exceed 12 pages
(excluding any annexed documents).
Article V
Copies of comments submitted in accordance with Article IV above shall be
forthwith circulated by the Secretary to the members of the Committee, to the
applicant for review and to the parties to the Administrative Tribunal pro-
ceedings.
Article VI
The Committee shall be convened as soon as oossible after the exnirv of the
time-limit for receipt of comments in accordance with Article IV above, and in ~ ~ -~ ~ ~
any event no later than 25 days from the date of the receipt of the application.
Article VI1
1. Except as provided in paragraph 4, al1meetings of the Committee shall be
closed.
2. Observations that the parties to the proceedings before the Administrative
Tribunal wish to present to the Committee shall be submitted exclusively in
writing. However, if the application is submitted by a member of the Commit-
tee, both parties to the proceedings before the Administrative Tribunal may
request to be heard by the Committee for the purpose of allowing the parties
or their representatives, with the permission of the Chairman, to make
statements to the Committee concerning the application and to reply to ques-
tions that may be posed by members of the Committee.
3. Al1 deliberations of the Committee shall take place in private, with the
assistance solely of its Secretary and members of the Secretariat servicing the
meeting. The Committee shall take al1its decisions concerning an application
in private session.
'The Cornmitteerequesredits Secreraryto infarrn itat the beginningof eachsession
of any applicationssubmittedrinceits last sessionthat had been treated as irreceivable
purruant to this paragraph (A/AC.86/28. para. 5).62 APPLICATION FOR REVLEW
4. The decisions of the Committee and the text of any questions to be
addressed to the International Court of Justice, as well as the results of and the
participants in any votes taken during the private deliberations, shall be for-
mally announced in a public meeting. at which any member of the Committee
may make a statement for the record
Article VI11
The Committee may at any time invite additional information or viewson any
point with respect to which it considers such information or views necessary,
provided that in such cases the same opportunity to present additional informa-
tion or views is afforded to al1 parties to the Administrative Tribunal pro-
ceedings.
A rlicleIX
1. The Committee shall take a decision in respect of each ground of the
application set forth in accordance with subparagraph 2 (c) of Article II above.
2. If the Committee decides that there is a substantial basis for the aoolica-
tion under Article II of the Statute of the Administrative Tribunal, k'shall
request an advisory opinion from the International Court of Justice. which
request shall specify the ground or grounds as to which it has so decided pur-
suant to paragraph 1.
The decision taken by the Committee with respect to an application, together
with the text of its reau.st. .f ans. for an advisorv ooinion. shall be com-
municated by the Secretary ta tÏi parties ta the. prbceedi'ngs before the
Administrative Tribunal and to the Tribunal, and shall be circulated as a Com-
mittee document to al1member States
Arlicle XI
1. Sound recordings shall be prepared and kept of al1 proceedings of the
Committee, in accordance with the practice of the United Nations.
2. If the Committee requests an advisory opinion of the lnternational Court
of Justice in respect of an application, the Secretary shall prepare and transmit
to the Court, to al1members of the Committee and to the parties to the pro-
ceedings before the Administrative Tribunal, a verbatim record, in English and
French, of the proceedings of the Committee in respect of that application,
except for those in the private deliberations provided for in paragraph 3 of
Article VII.
Arlicle XII
1. The Committee shall. at its first session alter the opening of each regular
session of the General Assembly. elect the following officers:
(a) A Chairman, provided that until such election the Chairman of the Sixth
Committee at the current or most recent session of the General Assembly shall
.~~v~ ~~-Chairman:~~,
(b) A Rapporteur. provided that until such election the Rapporteur
previously elected by the Committee shall continue to serve in that capacity. CONTENTS OF THE DOSSIER 63
2. The Rapporteur shall perform the functions of the Chairman in the
absence of the latter.
A/AC.86/28
25 March 1983
Il. Procedures of the Committee
Second report of the Commitree
Chairman: Mr. Philippe KIRSCH (Canada)
Rapporleur: Mr. F. D. BERMAN (United Kingdom of Great Britain and
Northern Ireland)
1. At the 1stmeeting of its twenty-second session, on 14December 1982,the
Committee's attention was drawn to the Advisory O~inion delivered by the
International Court of Justice on 20 July 1982in connection with the ~pplica-
tion for Reviewof Administrative Tribunal Judgement No. 273 (Morlished v.
the Secrerarv-General of the United Nations)'. ln that o~inion, the Court
exprcssed eoncern abouÏceriain procedures followed by ihe ~ommitiee in con-
sidering thai application. On the proposai of the Chairman, the Commiitee
decided to add IO its agenda an item entitled "Procedures of the Commiiiee".
Subsequently. the Commiitee dccided Io defer conrideration of ihat item io a
later meeting and requested the Secreiariat io prepare appropriate documenta-
tion for the Committee.
2. The Committee considered that item al meetings held on 4, 15 and 16
February 1983(2nd to 6th meetings of the twenty-second session). Mr. Paul C.
Szasz. of the Office of Leeal Affairs. assisted the Committee in this exercise.
3. ~he Commitice had before ita document prepared by ihe Secreiariai con-
taining possible amendments io the Rules of Proiedure (A/AC.86/107). which
was circulated to members of the Committee in advance of its meetinn on 4
February, and two informal working papers, also prepared by the ~ecreïariat.
circulated to members of the Committee at its meetings on 15and 16February
(informal Working Papers Nos. 1 and 2).
4. In connection with paragraph 1 of Article II of the Rules of Procedure,
the Committee agreed that the period of two weeks referred to in the revised
form of the second sentence should have the status of a presumption only: it
would be open to either party to the proceedings to show that the actual date
of r-eipt of a judgement delivered by the Administrative Tribunal was later
than IWO weeks after its dispatch by the Executive Secretary. As the normal
proof would bea dated acknowledgement of receipt signed byor for the party.
the Committee agreed that the Executive Secretary of the Administrative
Tribunal should be encouraged to make arrangements to obtain such an
acknowledgement from each addressee.
5. In connection with the new paragraph 2 of Article III of the Rules of Pro-
cedure, the Committee requested the Secretary to inform it a1the beginning of
' Applicorion/orReviewo/JudgemenfNo. 273of the UniledNolionsAdminisrrorive
Tribunal(Morrishedv. IheSecrerory-Generalo/rheUniredNorions)I,.C.J. Reporrs1982.64 APPLICATION FOR REVaW
each session of any application submitted since its last session that had been
treated as irreceivablepursuant to that article.
6. At its sixth meeting, on 16 February, the Cornmittee adopted, without a
vote. a number of amendments to its orovisional rules of orocedure and. subse-
quently, the Committee adopted, again without a vote. itf amended pro"isional
rules as a whole asil,definitive rules of procedure. These are reproduced in the
Annex to the oresent reoort
7. In the course of reiiewing ils procedures the Committec took note of the
observations of the International Court of Justice in its advisory opinion of 20
Julv 1982' concerninr the oosition of a State member of the Committee in con-
neciion with votes taken on an application for review wbmitted to the Commit-
tee by that State. The Committee did not consider it necessary to make any
amendment to its rules of procedure in that respect, but was confident that, in
any such future case, members of the Committee would bear the observations
of the Court in mind in exercising their rights.
8. At the conclusion of the Cornmittee's consideration of its nrocedures. a
member of the Committee expressed the view that the task of the'lnternational
Court of Justice might be facilitated if arrangements could be made for oral
hearings in connection with the Court's consideration of requcsts for advisory
opinions emanating from the Committee.
Annex
RULES OF PROCEDURE OF THE COMMITTEE ON APPLICATIONS FOR REVIEW OF
ADMlNlSTRATNE TRIBUNAL JUDCEMENTS
(as adopted by the Committee at the 6th meeting of its
twenty-second session, on 16February 1983)'
Article 1'
1. The proccedings of the Committee shall be goi,erncd by the Rules of Pro.
cedurc of the General Assembly applicable IOcommittees.
2. In addition to the aforementioned Rules of Procedure of the General
Assembly, the following special rules, set out in Articles II to XI below, relating
to applications under Article II of the Statute of the United Nations
~dm~nistrative Tribunal shall apply.
ArticleII
1. Applications asking the Cornmittee to rcquc5t an adriwry opinion of the
International Court of Justice \hall be wbmitted in writing to the official
designated by the Secretary-General to serbe as Secretary of the Committee. Fur
Applicorionfor Reviewof JudgementNo. 273of the UnitedNotionsAdminislrorive
TribunolIMortishedv.thekrerorv-Cenerol of rheUniIedNotionsl.I.C.J. Reports1982.
a1para. M.
' Newprovisions andother substantivechangesintherulesadoptedbythe Committee
at itstwenty-secondsessioare italicized.Thenumberingof therulesasreilectedindacu-
ment A/AC.86/2/Rev.2* has been maintainedal this stageto avoid confusionand to
facilitate identificationof changes.additionsand deletions.The revisedrules with new
numbering are reproducedin a scparateCommittee document (A/AC.86/2/Rcv.3).
' The provisionscontainedin this artide wcrenot amendedby the Cornmittee. CONTENTS OF THE DOSSIER 65
the uuruose of uaraarauh 1 of Article II of the Slatute of the Administrative
~rrbun~l. rhehale ojrhe judgëmenl shall br con~rderedlobe the date on which
IIhas been bern receibed by the porrres 10 thepro<rrdingr before the Trrbunal.
which date sholl be uresumed to be two weeks after the disuorch of rouies
. .
thereof by the ~xecutive Secretory of the ~ribunal. For t'he purposes of
paragraph 2 ofArticle 1 I of the Statute, thedate of the receipt ofan application
is the date when copies of that aoplication are dis~atched to the members of the
Committee by the ~ecretary ofthe Committee.
2. [Deletedl
3. The a~~lication. exceor for anv onnexed documents. shall be submitted in
ony of the languages of the ~en&al Assembly andsholl be osbrief ospossi-
ble, in no evenl exceeding 12pages. Ir shall conlain thefollowinn information,
which should be set ourin the order indicated below:
(a) The number and date of the judgement concerning which a review is
desired, and the names of the parties with respect to which the judgement was
rendered.
(b) The full name of the applicant for review, and his address or rhat of his
representotive for the purpose of the proceedings. If the applicant for review is
one who has succeeded to the rights of the person in respect of whom the judge-
ment was rendered on the latter's death, this fact, together with supporting
evidence including relevant data pertaining to the succession, shall be set
forth.
(c) A statement setting forth in detail the grounds of the application undcr
paragraph 1 of Arliclc II of the Statute of the Adminisrrative Tribunal and the
supporting arguments.
(d) [Deletedl
(el A list of any supporting documents which are annexed to the applica-
tion.
Article III
1. Uuon recebt of an auulicotion the Secretaryshall assoon asuossible have
rr /excluding an).annexed documrnrs, rranslatrd rnro the orher languagesof the
General Assemhly and thereaftrr rtnmedratcly communrrute riIo ,11mrmbers of
the Committee. as well as 10the auulicant for review and to the other uartv or
parties to the proceedings before ihe ~dministrative Tribunal, togelher wr'th o
copy of the Judgement Io which il relates and on indication of where any
annexed documents moy be examined. Any document annexed Io the applica-
tion that is no1 ovoilable in English or French shall be translated into one of
those Ionguogesal the request of any member of the Committee. except that no
translation shall be made without rhe auuroval of the Commitfee if the docu-
ment to be translated exceedsfive pages.
2. Notwilhslanding paragraph 1, ifan application manifestly does no1 com-
. . with the reauirements ofArticle II. oaraara~h 3. above. the Secretarv. with
theapprovalo~the chairmon or in his;bsence ihe~hpporteur, sholl, ifthe non-
compliance appeors susceptible of correction, return the application Io the
auulicant with o reauest that it be corrected and resubmitfed within one week
?the date of relu," rfrhe applrcanr r>localed rn hlr.itYork or other~r,e wrthm
rhree weeks. If the applrcatron rs no1 resubnrrrred m correct form wrthrn the
indicoted time~limit or ifit does not appear lo be susceptible of correction. il
sholl be considered IO be irreceivable and the Secrefory shall so inform the
applicant.66 APPLICATION FOR REVIEW
Article IV
1. The other party to the proceedings before the Administrative Tribunal or
each of the parties in those caseswhere the application is made by a member
State mav. within one week from the date on~which a coov of.. . ooolicotion
was com~unicoted in accordance with porogroph 1of Article III abive ifthe
porw is locoted in New York or otherwise within three weeks,submit in writing
10 the Secretary its comments with respect to the application.
2. Comments of a party, or parties. shall be submitted in ony of the six
languages of the General Assembly and sholl in no event exceed 12 pages '
(excluding ony annexed documents).
Article V'
Copies of comments submitted in accordance with Article IV above shall be
forthwith circulated by the Secretary to the members of the Committee, to the
an~licant for review and to the oarties to the Administrative Tribunal Dro-
ceedings.
Article VI
The Committee shall be convened as soon as ~ossibleafter the ex~irv -. the
time-limit for receipt of comments in accordanci with Article IV above, and in
any event no later than 25 days from the date of the receipt of the application.
Article VIbis
1. Except osprovided in porogroph 4, al1meetings of the Commitlee sholl be
closed.
2. Observations thot theparties ro theproceedings before the Admhistrotive
Tribunal wish ro present to the Commitree sholl be submitted exclusively in
writing. However, ifthe application is submitted by a member of the Commit-
tee, bath parties Io the proceedings before the Administrative Tribunal moy
request to beheard by theCommittee, in which casethe Chairmon shallconvene
o meeting of the Committee for the purpose of ollowing the parties or their
representatives, with thepermission of theChoirmon. Io moke slalements IO the
Committee concerning the application and to reply Io questions thnt may be
posed by members of the Comniitiee.
3. Al1 deliberotions of the Committee shall take place in private, with the
assistancesolely of ils Secretary and members of the Secreroriat servicing the
meeting. The Committee shall toke al1 ils decisions concerning an opplicolion
in privote session.
4. The decisions of the Committee and the texi of onv ~.est..ns Io be
addressedIo the ~nter~otionol Court of Justice, os well os the results of and the
parIiciponts in ony votes taken during the privole deliberotions, sholl befor-
mollv Ünnounced in a ~ublic meetina.a-.which any member of the Committee
maimake a statemeni for the record.
Article VII'
The Comntittcc may ai ans time invite additional information or i,icus 011an)
point uith rcspeii io uhirh itconsiders 5ush information or vieivs ncce\vary.
'The provisions containedinthis arfide were not amended by the Cornmittee. CONTENTS OF THE DOSSIER 67
provided that in such cases the same opportunity to present additional informa-
tion or views is afforded to al1 parties to the Administrative Tribunal pro-
ceedings.
Article VIII
1. The Commitree shall take a decision in remect of each pround of the
application selforrh rn accordance wiih s~bpara~r~~h3 (c)r?/~irrcle II ahove.
2. If the Commitiee decides that ihçre is a substantial basi for ihe applica-
tion under Article II of the Siaiuie of the Administrative Tribunal. it hall
request an advisory opinion from the International Court of Justice, which
request shall specify the ground or grounds as 10 which il has so decided pur-
suant ro paragraph 1.
A rlicleIX
The decision taken by the Committee with respect to an application, together
with the text of its request, if any, for an advisory opinion, shall be com-
municated by the Secretary to the parties to the proceedings before the
Administrative Tribunal and to the Tribunal, andshall be cirnrlated asa Com-
mittee document to al1 member Srates.
A rticle X
1. Sound recordinas shall be ore~ared and ke~t of al1 oroceedinas of t-.
Commrrree, rn uccordunrr wrrh ;he >racrrcr of the ~hrred ~arron~
2 //the Commirree requesrsan advrsory opinron ofrhe Inrernarronul Courr
of ~usticein resmct of arÏaoo1rcation. the Secrerarvshall Dreoareand rransmir
1; the Court. th al1 membei; of the cornmittee and to the ;orties ro the pro-
ceedings before the Administrative Tribunal, a verbarim record, in English and
~rench. of the Droceedinas of the Committee in resoect of that a~~~lication.
excepr foi those in the >vaÏe deliberutions providéd for-in para&aph 3 of
Article VIbis.
Article XI
I. The Commirreeshall, ut itsfirsl sessionafter the opening of each regular
session of the Ceneral Assembly, elect the following officers:
(a) a Chairman, provided that untilsuch eleclion the Chairman of the Sixth
Commitree or the currenr or mas1recent sessionof the General Assembly shall
serve as Chairman;
(b) aRapporteur, provided that untilsuch election the Rapporteur previously
elected by the Commitree shall continue to serve in that capacity.
2. The Rapporreur shall perform the functions of the Choirman in the
absence of the latter.68 APPLICATION FOR REVIEW
12. General Assembly resolution 37/126, General Assembly, Official
Report of the International Civil Ser- Records. Thirtv-seventh Ses-
vice Commission (17 December 1982) \ sion, ~up~lem'nt No. 51
13. General Assembly resolution 38/232, General Assembly, Offirial
United Nations common system: report Records, Thirty-eighth Ses-
of the International Civil service sion, Supplement No. 47
Commission (20 Decemher 1983) '
14. General Assembly, Eighth Session, Re- General Assembly, Official
port of the Fifth Committee, agenda Records,'eighth Session, An-
item 51,"Personnel policy: reports of nexes,agendaitemSl, A/2615
the Secretarv-General and of the
Advisory ~ommittee on Administraiire
and Budgetary Oucstions" (7 December
. ..
1953) '
15. Information Circular, Visa status of ST/AFS/SER.A/238
non-United States staff members serv-
ing in the United States, 19 January
1954 '
16. United Nations Administrative Tri- AT/II/Rev.4
bunal: Statute and Rules, Provisions in
force with effect from 3 October 1972 '
17. Staff Regulations (1983) '
.
18. Staff Rules: Staff Regulations of the ST/SGR/Staff
United Nations and Staff Rules 101.1 IO Rules/ LIRev.6
C. Documents',' Submitted Io the United NotionsAdministralive Tribunal:
CaseNo. 322: Yakimetz againstthe Secrelary-Generalof the United Nations
19. Applicant's Statement of Facts and
Arguments (3 January 1984)
20. Annexes to Applicant's Statement of
Facts and Arguments (Annexes I to 42)
21. Respondent's Answer (14 March 1984)
22. Observations [by Applicant] on the
Answer of the Respondent (including
Annexes 43 to 45) (13 April 1984)
'Documentsno1reproduced. /Note by theRegistry.]
This versionof the Staff Rulesisthe versionin forcas of l January 1984but the
provisions relevantto the applicationare unchangedfrom thosein force atthe limeof
Mr. Yakimetz'sseparation (26December1983).
'In these documents,whichweresubmittedto the UnitedNations Administrative
Tribunal, Mr. Yakimetzis usually referredta as the "Applicant" andthe Secretary-
Generalis usuallyreferredto as the "Respondent".Theredocuments are nated in the
opening paragraphsof ludgementNa. 333ofthe Tribunal(doc.No.9)and constitutethe
written submissions madteo the AdministrativeTribunalin the case. CONTENTS OF THE DOSSIER 69
D. Adminislrative Tribunals Judgemenls Cited in the Documenls Submitted to
the Committee and Io the United Nations Administrative Tribunal or in Ils
Judgement No. 333 (listed in alphabelical order)
1. Judgemenls' of the United Nations Administrative Tribunal
23. Bhatlacharyya against theSecretary-General of the United Nations, Judge-
ment No. 142.
24. El-Naggar against theSecretary-General ofthe UnitedNations. Judgement
No. 205.
25. Esrabial against the Secretary-General of the United Nations, Judgement
No. 310.
26. Fischman against the Secretary-General of the UnitedNations, Judgement
No. 326.
27. Higgins against the Secrelary-General of the Inter-Governmental Maritime
Consultative Organization, Judgement No. 92.
28. Levcik againsl the Secrelary-General of the United Nations, Judgement
No. 192.
29. Mauch against the Secrelary-General of the United Nations, Judgement
No. 54.
30. Nalh against the Secretary-General of the United Nations, Judgement No.
181.
31. Seraphides againsl the Secretary-General of the United Nations, Judge-
ment No. 140.
32. Sikand against the Secretary-General of the United Nalions, Judgement
No. 95.
33. Smith againsl the Secretary-General oflhe UnitedNations, Judgement No.
249.
2. A Judgment of the International Labour Organisation Administrative
Tribunal
34. In re Rosescu [against the International Alomic Energy Agencyj. Judg-
ment No. 431 '.
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 Assembly
resolution 38/232 of 20 December 1983
A. Paragraph 5 of Secrion IV of General Assembly resolulion 37/126
1. Documents' of the Thirty-fifth Session of the General Assembly
35. General Assembly resolution 35/210, General Assembly. Official
Personnel questions (17 December Records, thirty-filth Session,
1980) Supplement No. 48
' Documentsnot reproduced.[Nore by lhe Regis1ry.l70 APPLICATION FOR REVIEW
2. Documents' of the Thiriy-sixth Session of the General Assembly
36. Joint Inspection Unit: Personnel Ques- A/36/432
tions: Personnel policy options (14 (JIU/REP/8I/II)
September 1981)
37. Joint Inspection Unit: Personnel Ques- A/36/432/Add.l
tions: Personnel policy options: Note (JIU/REP/8I/II, Annex
by the Secretary-General (29 October VIII)
1981)
38. Joint Inspection Unit: Personnel Ques- A/36/432/Add.2
tions: Personnel policy options: Com-
ments of the Secretary-General (27
November 1981)
39. Report of the lnternational Civil Ser- General Assembly, Official
vice Commission (1981) (see para. 17 Records, Thirty-sixth Session,
and Annex 1) Supplement No. 30, A/36/30
40. Personnel questions: Re~ort submitted A/C.5/36/19
by the ~iali~nions and ~wociaiions of
rhc Unitcd Nations Sccreiariai: Note by
the Secretary-General (see paras. 96 to
98 and 101 to 106) (15 October 1981)
41. Report of the Fifth Committee, agenda General Assembly, Officil
item 107, Personnel questions (15 De-
Records, Thirty-sixth Session,
cember 1981)(see paras. I to 3, 55, 62 Annexes, agenda item 107.
and 64) A/36/831
42. Report of the Fifth Committee, agenda General Assembly, Official
item 108, Report of the lnternational Records, Thirty-sixth Session,
Civil ServiceCommission (17 December Annexes, agenda item 108,
1981) A/36/840
43. General Assembly resolution 36/233, General Assembly, Official
Report of the lnternational Civil Ser- Records, Thirty-sixth Session,
vice Commission (18 December 1981). Supplement No. 51
section III, paragraph I
44. General Assembly decision 36/457, General Assembly, Official
Concept of career, types of appoint- Records, Thirty-sixth Session,
ment, career development and related Supplement No. 51
questions (18 December 1981)
3. Documents' of the Thiriy-seventh Session of ihe General Assembly
45. Report of the lnternational Civil Ser- General Asçembly, Officia1
vice Commission (1982) (see paras. IO Records, Thirty-seventh Ses-
and 283-311, Annex 1, paras. 24 to 34 sion, Supplement No. 30,
and Appendix II, paras. 41 to 67) A/37/30
46. Report of the lnternational Civil Ser- A/C.5/37/29
vice Commision: Comments by the
Federation of lnternational Civil Ser-
' Documents no1 repraduced.[Noreby the Regisrry.1 CONTENTS OF THE DOSSIER
vants' Associations (FICSA): Note by
the Secretary-General (1 November
1982) (see paras. 7 to 9)
47. Joint Inspection Unit: Personnel Ques- A/37/528 (JIU/REP/82/3)
tions, Second report of the career con-
cept, Nore by the Secretary-General
(12 October 1982)
48. Joint Inspection Unit: Personnel Ques- A/37/528/Add.l
tions: Personnel policy options and
second report on the career concept:
Comments of the Administrative Com-
mittee on Co-ordination (28 October
1982)
Summaryrecords of meetingsand a documenl'of the Fijth Cornmillee
49. 23rd meeting, I November 1982 (see General Assembly, Official
paras. 10 and II) Records. Thirty-seventh Ses-
sion, A/C.5/37/SR.23
50. 26th meeting, 4 November 1982 (see Ibid..A/C.5/37/SR.26
paras. 25 and 30)
51. 27th meeting, 5 November 1982 (see Ibid.,A/C.5/37/SR.27
paras. 15 and 16)
52. 28th meeting, 8 November 1982 (see Ibid.,A/C.5/37/SR.28
paras. 37, 38, 43, 44 and 45)
53. 29th meeting, 9 November 1982 (see Ibid.,A/C.5/37/SR.29
para. 42)
54. 30th meeting, 10 November 1982 (see Ibid.,A/C.5/37/SR.30
para. 47)
55. 31sl meeting, 10 November 1982 (see Ibid.,A/C.5/37/SR.31
paras. 2, 14, 24, 30, 42 and 52)
56. 33rd meeting, 12 Novemher 1982 (see Ibid.,A/C.5/37/SR.33
paras. 13 and 14)
57. 34th meeting, 15 November 1982 (see Ibid.,A/C.5/37/SR.34
paras. 44, 50 and 61)
58. 36th meeting, 16 November 1982 (see Ibid.,A/C.5/37/SR.36
paras. 12, 29 and 30)
59. 37th meeting, 17 November 1982 (see Ibid.,A/C.5/37/SR.37
paras. 3 and 14)
60. 40th meeting, 19 November 1982 (see Ibid.,A/C.5/37/SR.40
paras. 4, 60 to 62, 77 and 96)
61. 43rd meeting, 23 November 1982 (see Ibid.,A/C.5/37/SR.43
paras. 13, 17 and 48)
62. 44th meeting, 24 November 1982 (see Ibid.,A/C.5/37/SR.44
paras. 15and 16)
Documentsno1reproduced. /Nole by rhe Reglrrry.172 APPLICATION FOR REVlEW
63. 63rd meeting, 10 December 1982 (see Ibid., A/C.5/37/SR.63
para. 15)
64. 67th meeting, 13 December 1982 (see Ibid.. A/C.5/37/SR.67
paras. 7 to 10)
65. Report of the lnternational Civil Ser- A/C.5/37/L.38
vice Commission: draft resolution
sponsored by Canada, Finland. Ghana,
Norway, Pakistan, Panama. and
Sweden (9 December 1982) (see section
IV. para. 5)
Verbatim record und o document' of the plenary meeting of the Generol
Assembly
66. Report of the International Civil Ser- A/37/768
vice Commission: Report of the Fifth
Committee (16 December 1982)
67. 109th meeting, 17 December 1982 (see A/37/PV.109
agenda item 112, pp. 26 to 27)
B. Porogruph 5 of Section VI of Generol Assembly resolution 38/232
Documents' oJ the Thirly-eighth Session of the Generol Assembly
68. Report of the International Civil Ser- General Assembly, Ofjicial
vice Commission (1983) (see paras. 141 Records, Thirty-eighth Ses-
to 147) sion, Supplement No. 30,
A/38/30
Summary records of meetings and o document' of the FiJth Committee
69. 31st meeting, 8 November 1983 (see General Asçembly, Ofjiriol
para. 56) Records, Thi~y-eighth Ses-
sion, Fifth Committee.
A/C.5/38/SR.31
70. 33rd meeting, 10 November 1983 (see Ibid.. A/C.5/38/SR.33
para. 35)
71. 38th meeting, 15 November 1983 (see Ibid., A/C.5/38/SR.38
para. 73)
72. 42nd meeting, 18 November 1983 (see Ibid.. A/C.5/38/SR.42
para. 12)
73. 61st meeting, 12 December 1983 (see Ibid.. A/C.5/38/SR.61
para. 8)
74. 66th meeting, 15 December 1983 (see Ibid., A/C.5/38/SR.66
paras. 38 and 41)
75. United Nations Common System: draft A/C.5/38/L.17
resolution sponsored by Australia,
' Documents not reproduced.[Nole by theRegirrry.] CONTENTS OF TH6 DOSSIER
Austria, Canada. Denmark, Egypt,
Norway, Pakistan, Sweden and
Venezuela (7 December 1983)
Verbatirnrecord and adocument' of the plenary meetingof the General
Asrernbly
76. United Nations Common System: Re- A/38/745
port of the FifthCommittee(18 Decem;
ber 1983)
77. 104th meeting, 20 December 1983 (see A/38/PV.104
agenda item 117, pp. 32 to 33)
' Documentnot reproduced .Nole by the Regirrry.]
Requête pour avis consultatif (y compris le dossier de documents transmis à la Cour en vertu du paragraphe 2 de l'article 65 du Statut)