Written Statements

COUR INTERNr4TIONALE DE JUSTICE

EFFET DE JUGEMENTS DU TRIBUNAL
ADMINISTRATIF DES NAT10 NS UNIES

ACCORDANT INDEMNITÉ

AVISCONSULTA'TT13DJUILLIgj4 CONTENTS - TABLE DES MALIERES

PART 1.-REQIJES'T FOR ADVISORY OPIN 1ON AND
WRITTEN PROCEBDINGS

YHEMIÈRE PARTIE. - REQuÊTE POUR AVIS

CONSUL,T:4TIF ET PIECES DE LA, YKOCJ?DURE ÉCRITE
SECTION il.-IIEQIJEST FOR .4D\JTSORl- OPTKlON

SIXTTON A - RE~UÉTE POUR AVIS CONSIJLTATll~
Pages
'1. Lettex from the Secretary-Generaof the UnitedNations to the
Presidentof the Caurt (16 XII j3) - Lettre du Secrétaire
générad lesNations Unies au Présidentde la Cour (16XII 53) 8
II. Resolution adopted by the General Assembly at itç 471st Ple-
nary Meeting on 9 December 1953-. Résolution adoptée par
l'Assembléegénéraleà sa 47xmeséanceplhière le gdécembre
1953. ....................
9
SEU'TOW R -DOCIJMENTS TH6 DESPATCH OF XVHILI-1
.
\\;AS ANfiOLifiCED TW THE REQUEST
SECrION R - DOCUMENTS DONT L'ENVOT ilÉTÉ
API'NONCÉ PAR 1.14 REQUETE

x. Documents relatingto questionson which an Advisory Opinion
isrequested by the General Assembly
I. Documents relatifs aux questions sur lesquelles1'Assemblbe

généralea demandéun avis consultatif ........ IU
2. - Background documents
z. - Documents complémentaires ........... 17

SECTION C -1VRITTEE STATBBflENTS

secylolu c. - EXPOSÉS ÉLRITS
i. - Lctter £rom the Canadian Amhassador at The Haguc to
the Registrar of the Court (1j II 54) ....... 24

z. - Expose écrit du Gouvernement dc ln Républiqiie fraiqaise 25
3. - Telegram from the Minister foForeign Affairs ofEcuridor
to the President of the Court ......... 44
rIclbgramrne du Ministre desAffaircsétraiigéresde1'Équa-
teur au Prbident de la Cour .......... 45
4. - Memorandurn by the internationalLabour Office ...
46
5. - Exposé écrit du Gouvernement de Suèdc (12 III54) . . gr
6. - Written Statenient of thc Wetheriands Government . , 94 Pages
7. - Expose du Gouvernement hellénique ....... rr7

S. - Wyritten Statement of the Govemment of the: United
Kingdom ................. 122
g. - Written Statement of'the United States of Amertca . . 131
IO. - Written Siaiemelit by the Secretary-General of theUnited

Nations (rz III54) .............. r88
II. - Written Statement of the Govenirnent of the Repuhlic
of the Philippines (xr rrt 54) .......... 24g
12. - Lettre de 1'Ambassadeur de 1'Union des Républiques
socialistes soviétiques à La Haye au Greffier de la Cour
(15 III 54) ................. 256

13, - Euyosk du Gouvernement du Mexique (I rrr 54) ... 251
14. - Lt:ttredu Ministre de Yougoslavie 5 La Haye au Greffier
de la Cour (14 11154). ............ 261
15. - E:uposb écritdu Gouvernement de la Républiquedu Chili zfiz

16. - Tt3légramme du Ministre des Affaires étrangères de la
Rripublique tchécoslovaque au Greffier de Cour (18 III54) 266
17. - Written Statement of the Government of Iraq .... 267
18. - Vlintten Statement of the Government of the Repuhlic of
China (IT III54) ..............
369
19. - Lettre du ministèredes Affaires étrangères dela République
dii GuatemaIa au Greffier adjoint de la Cour (13 III54) . 271
20. - Exposé écritdu Gotivernement de la Répiiàliqueturque 274
21. - Wriiten Statemerit of the Governmcnt of Ecuador
(2~ IV 54) ...............--- 275

PART Il.-ORAL STATEMENTS

IIEUXIÈME PARTIE. - EXPOSÉS ORAUX

ANNEX TO THE MINUTES

ANNEXE AUX PROCÈS-VERBAUX

1. - Staternent by Mr. Çtavropoulos (United Nations), IO VI 54 287
2. - Statement F3yMr. Yhleger (U.S.A.), IO VI 54 and rr VI 54 308
3. - Exposéde M. Reuter (France), II VI j4 ...... 336

4. - ExposC de M. Spiropoulos (Grèce),xz TI 54 ... . 345 SECTION C.-WRITTEN STATEMENTS

SECTION C. - EXPOSÉS ÉCRITS

1. LETTER FROM THE CANADIAN AMBASSADOR AT
THE HAGUE TO THE RI'GISTRAR OF THE COURT

Excellency,
As you know, the International Court of Justice has been asked

to give an advisory opinion regarding certain decisions made
reqently by the United Nations Administrative Tribunal$he
question of awards to staff members whose appointments were
terminated.
In this connection it was thought that some govemments would
like to submit aitten statement of their views on this auestion.
1 am instructed by my Govemment to inform you that, Athough
Canada is very interested in the questions before the Coitt,
does not wish to submit a written statement. The views of the
Canadian Government on the legal and constitutional pnnciples
involved are summarized in tlie records of the Debates in the
Fifth Committee, which1presiime have been transmitted to the
Court by the Secretary-General of the United Nations.
My Government would, however, consider it a favour if it could
receive copies of the written statements made by other govemments
on this matter.
Please accept, etc.

(Signed Thomas A. STONE. La demande d'avis consultatif présentéepar l'Assembléegénérale

des Nations Unies à la Conr internationale de Justice dans la
résolutiondu 9 décembre 1953 pose deux questions, l'examen de la
deuxième question dépendant de la réponse donnéeà la première.
La première question vise ile droit (pour l'Assembléegénérale),
pour une raison quelconque, de refuser d'exécuter un jugement
' du Tribunal (administratif des Nations Unies) accordant une
indemnité à un fonctionnaire des Xations Unies à l'engagement
duquel il a étémis fin sans l'assentiment de l'intéressé 11.
En supposant ce droit .reconnu, la deuxième question concerne

la qualification des Kprincipaux motifs sur lesquels l'Assemblée
généralepeut se fonder pour exercer légitimement ce droit II.
Avant d'examiner le problème au fond, deux observations préli-
minaires seront faites, afin de replacer les questions posées à la
Conr dans leur contexte général.
On peut se demander d'abord comment naît ce problème de
l'exécution par l'Assemblée générale desdécisions du Tribunal
administratif. Car 1'Assembléen'est pas normalement un organe
d'exécution au sein des Nations Unies : elle est un organe déli-
bérant, L'organe d'exécution, si on laisse de côté le Conseil de
Sécuritéet le Comité d'État-hlajor dont les compétences sont

spéciales, est le Secrétaire général.Ceci ressort clairement de
l'articlegS de la Charte, d'après lequel.« le Secrétaire généraa lgit
en cette qualité (de plus haut fonctionnaire de l'organisation) à
toutes les réunionsde l'Assembléegénérale,du Conseil de Sécurité,
du Conseil économiqueet social et du Conseil de Tutelle. Il remplit
toutes autres fonctions dont il est chargé par ces organes. »
Les décisionsdu Tribunal administratif sont donc normalement
exécutéespar le Secrétaire général. Bienque pareille affirmation
ne figure pas dans le statut du Tribunal, ceci résulteimplicitement

de l'article9. D'après cet article, le Tribunal a, dans certains cas,
le pouvoir ad'ordonner l'annulation de la décision contestée ou
l'exécution de l'obligation invoquée » :bien évidemment cet ordre
diannulation ou d'exécution est donné au Secrétaire général.
D'après le mêmearticle, dans les cas où il ya lieu à indemnité,
(ccelle-ci est fixéepar le Tribunal et versée.par l'organisation des
Nations Unies ,,:elle est donc verséepar les soins du Secrétaire
général.qui administre le budget de l'organisation.
Ainsi. l'exécution des décisions du Tribunal administratif
incombe au Secrétaire général. Lorsquela demande d'avis fait
allusion à l'hypothèse d'un droit pour l'Assemblée ede refuser

d'exécuterun jugement du Tribunal accordant indemnitéi),s'agit-il
d'une sorte de pouvoir de revision de l'Assemblée, ou biende la26 EXPOSÉ DU GOUVERSEBIEST FRAKÇAIS

part prise par l'.Assembléedans l'exécution desdécisions du Tri-
bunal sous la forme du pouvoir que détient l'Assembléed'examiner
et d'approuver le budget de l'organisation (article 17 de la Charte),
puisque les indemnités attribuées par le Tribunal administratif
sont payées sur des crédits inscrits au budget par le Secrétaire
généralet approuvés par l'Assembléegénérale ? Les deux hypo-
thèses devront être étudiées.
Une deuxième observation @liminaire consiste à rappeler que

le problème poséà la Cour se rattache au problème du statut des
fonctionnaires des Nations Unies. Dès la création des Nations
Unies, ce statut a étéaménagé en vue d'assurer une certaine
stabilité de la fonction internationale et de donner au personnel
les garanties dont l'expérience de la Sociétédes Nations avait
montré l'importance. L'utiliti: d'un tribunal administratif n'a
jamais étécontestée ; les résultats obtenus par le tribunal de la
Société desNations et le tribunal du Bureau international du
Travail étaient présents à la mémoiredes auteurs du statut provi-

soire qui prévoyait la création du Tribunal administratif des
Kations Unies. Ce tribunal constitue donc un élémentde I'orga-
nisation de la fonction piibliqiie internationale.
Le Gouvernement de la République française démontrera
successivement :
I" que le Tribunal administratif possède les caractères d'un
véritable tribunal, avec les coiiséquencesque cet état comporte ;

zo que les rapports existant entre le Tribunal administratif
et l'Assembléegénéraledonnent sa juste place à la compétence
financière de l'Assemblée générale sans porter atteinte à l'indé-
pendance du Tribunal administratif.

1

Caractères dl& Tribacitaladministratif

Le régime juridique du Tribunal administratif des Nations
Unies découle clairement des dispositions de son statut. En tête
de ces dispositions figure la déclaration contenue dans l'article

premier :n Le présent statut créeun tribunal qui portera le nom
de Tribunal administratif des Nations Unies. r
Les textes de base sont ceux qui définissent les pouvoirs du
Tribunal et des dispositions, telles que celle de l'article 2, para-
graphe 3, du statut du Tribunal administratif (aen cas de contes-
tation touchant sa compétence, le Tribunal décide in),ou celle
de l'article IO, paragraphe 2 (KLes jugements sont définitifs et
sans appel 1)sont sans équi\~oque.
Tout tribunal, national ou international, possède certaines

qualités inhérentes à la fonction juridictionnelle. Ces qualités
sont la permanence, l'indépendance et l'impartialité. Or, le Tribu-
nal administratif est constitué à l'avance et indépendamment EXPOSÉ DU GOUVERNE\IEKT FRANÇAIS 27
des affaires qu'il est amené à juger; ses membres sont éluspour.

une période de trois ans et rééligibles(article 3, 5 2), et un
membre ne peut être relevé de ses fonctions par l'Assemblée
généraleque si les autres membres estiment à l'unanimité qu'il
n'est plus qualifiépour les exercer (article 3, § 5). Cette dernière
disposition équivaut à l'institution du principe d'inamovibilité
des juges pendant la période d'exercice de leurs fonctions.
Par ailleurs, les demandes présentéesau Tribunal sont appelées

« requêtes 11(articles6, j et 9) et les actes qui sont accomplis par
le Tribunal sont qualifiésde ajugements 1,(article IO) on de Idéci-
sions i~ (article 12).
On peut ajouter que, comme l'a fait ressortir le représentant
de la France à la jmB Commission, le j décembre 1953 (doc. A/C.
5/SR 426 du 9 décembre 1953, texte français, p. g), n le Tribunal
administratif est le seul organe qui n'ait pas à présenter un rapport

annuel à l'Assembléegénéraleet, par ce fait, se singularise parmi
tous les organes subsidiaires des Nations Unies 1).
Mais il p a plus que ces aspects extérieurs de la fonction juri-
dictionnelle. Le Tribunal administratif dit le droit. L'article 10,
paragraphe 2, du statut du Tribunal décide que ses jugements
ccsont définitifs ». L'article 12, concernant' les cas d'extension

de la compétence du Tribunal administratif à une institution
spécialisée,par accord entre celle-ci et le Secrétaire générals ,tipule
que spareil accord prévoira expressément que cette institution
sera liée par les décisionsdu Tribunal II.
Le règlement et le statut du personriel des Nations Unies
font ressortir le contraste qu'il y a entre, d'une part la Com-
mission paritaire de recours qui, d'après l'article III, 1, du règle-

ment, n est chargée d'examiner les recours (des fonctionnaires)
.... et de donner au Secrétaire général desavis à leur sujet 8, et
dont les avis font l'objet, d'après le paragraphe 1) de l'article III,
3, du règlement, d'une <<décision finale n du Secrétaire général,
et d'autre part le Tribunal administratif qui, d'après l'article II,
2, du statut du personnel, ICconnaît des requêtes des membres
du personnel ...et statue sur ces requêtes ....».

Mais si cette autorité de la chose jugée est incontestable au
regard des membres du personnel requérant et du Secrétaire
général,l'est-elle pour autant au regard de l'Assemblée générale ?
On pourrait en effet n'accorder aux jugements du Tribunal qu'un
effet relatif, en limitant leur autorité aux requérants et au Secré-
taire général. Sibien que, mêmeaprès avoir démontré que le
Tribunal administratif est un véritable tribunal dont les décisions
ont l'autorité de la chose jugée, ladémonstration n'est pas encore

complète, czr la nature exacte des relations qui existent entre
ce Tribunal et l'Assemblée générale n'est pas encore apparue.
C'est sur ce point fondamental qu'il convient d'insister.
Certaines délégations aux Nations Unies ont, au cours des
dkbats, considéréque l'article IO, paragraphe 2, du statut duZS EXPOSE DU GOUVERNEMENT FRANÇAIS

Tribunal administratif d'après lequel les jugements <isont défini-
tifs et sans appel 1ne concerne pas l'Assembléegénéraleet ne lui
est pas opposable. Le raisonnement à l'appui de cette thèse a été
notamment présentépar le délégué des États-unis à la 5meCommis-
sion, le 3 décembre 1953 (doc. A/C. 5/SR. 420 du 7 décembre, texte

français, p. a),dans les termes suivants :« On a prétendu que, si
l'Assemblée revenait sur les décisions du Tribunal, les Nations
Unies seraient à la fois juge et partie ; ce n'est pas exact :chaque
fois que le Tribunal est appelé à connaître d'une cause, les parties
en présence sont, d'une part un fonctionnaire du Secrétariat et
d'autre part, non pas l'Asseniblée générale, mais le Secrétaire

généralen sa qualité de plus haut fonctionnaire de l'organisation ;
l'Assembléen'est pas partie aux débats .... Il est vrai que le statut
du Tribunal stipule que ses décisions doivent être définitives et
sans appel ; toutefois, il ne s'agit pas ici du droit d'une partie à
en appeler des décisionsdu Tribunal : ce qui nous occupe, c'est la
possibilité d'examiner à nouveau ces décisions sur l'initiative de

l'autorité législative supérieure qui a crééle Tribunal ...11
Le Gouvernement de 1~République française reconnaît, comme
l'indique le délégué des Etats-lJnis, que l'Assembléegénérale n'est
pas cpartie IIà l'instance devant le Tribunal administratif. Mais le
problème est de savoir si les décisionsdu Tribunal sont opposables
à l'Assemblée, bien qu'ellene soit pas partie à l'instance. Aucune
disposition du statut du Tribunal ne stipule que l'autorité des
jugements soit limitée au requérant et au Secrétaire général ; au

contraire, le caractère général del'autorité de la chose jugée appa-
rait dans deux dispositions de ce statut. C'est d'abord l'article 9,
d'après lequel, si le Tribunal reconnaîtle bien-fondé de la requête,
il peut ordonner «l'annulation de la décision contestée 1; il est
clair qu'une décisionadministrative ainsi annulée le sera à l'égard
de tous, y compris l'Assembléegénérale.C'est ensuite l'article 12,
d'après lequel, lorsqn'un accord sera intervenu avec une institution
spécialiséepour lui étendre la compétence du Tribunal, R cette
institution sera liée par les dhcisions du Tribunal »; il s'agit là

d'une obligation que le texte précité nelimite pas au Secrétaire
généralde l'institutionIen cause, mais qui aura effet sur l'institution
dans son ensemble.
Il n'est donc pas exact d'affirmer que l'Assembléegénérale ne
peut pas être liée par les décisions du Tribunal, sous prétexte
qu'elle n'est pas partie à l'instance.
Pour établir que l'Assemblée générale n'est pas liée,il faudrait
donc établir soit que l'Assembléea une compétence juridictionnelle
de revision par rapport au Tribunal administratif, soit qu'elle a;
à l'égarddes décisionsdu.Tribuua1, un droit de sanction ou de veto

qu'elle peut exercer grâce au moyen d'action que lui fournit sa
compétence budgétaire en vertu de la Charte. Le Gouvernement
de la République française se propose de montrer qu'une telle ESPOSÉ DU GOUVERXEI\IEXT FRAXÇAIS 29

thèse ne représente pas la nature véritable des relations existant
entre le Tribunal administratif et l'Assembléegénérale.
Reconnaître un droit de revision à l'Assemblée, c'est violer
l'articleIO, paragraphe 2 :iiLes jugements sont définitifset sans
appel. I>Cette disposition reprise du statut du Tribunal adminis-

tratif de la S. d. N. avait été proposée par le Secrétaire général
dans son rapport du 21 septembre 1949 (doc. A/986), s'inspirant,
disait-il, des vues exprimées en 1946 par le Comité consultatif
restreint nommé par le Secrétaire généralen application de la
résolution XII b) du 13 février 1946, et chargéd'établir un statut
de Tribunal administratif. D'après ses vues telles qu'elles ressortent
des déclarations de M. Aghnidès, président du comité précité,
devant la j'llCommission le 15 novembre 1946 (doc. A/C. SISR.,

p. 1.14). K les décisions du Tribunal administratif seraient sans
appel :un appel de ces décisionsretarderait le règlement définitif
d'affairesdéjàexaminéesàl'intérieur du Secrétariatpar desorganis-
mes créésà cette fin B.
Pour prouver l'inopposabilité à l'Assemblée de l'article IO.
paragraphe 2, du statut du Tribunal, il faudrait donc démontrer
positivement que l'Assembléeest, en vertu d'une autre disposition,
effectivement titulaire d'un droit de revision.
Le délégué de l'Australie disait, devant la gmeCommission le

4 décembre 1953 (doc. A/C. 5/SR. 421 du 7 décembre, texte fran-
çais, p. II), que c le paragraphe z de l'article ....IO du statut du
Tribunal administratif ....signifie seulement que les parties en
présence ne peuvent pas faire appel d'un jugement du Tribunal
administratif et n'exclut pas une revision des jugements par
l'Assembléegénérale,car cette revisiori ne saurait être assimilée à
un appel 1).Mais encore faudrait-il qu'une telle compétence de
revision, si elle est différentede l'appel, soit prévue par le statut
du Tribunal ou un autre texte. Car dès lors qu'est reconiiu dans

le statut même lecaractère juridictionnel des décisionsdu Tribu-
nal, l'existence d'une procédure de revision de ces jugements
ne peut se présumer. La seule sorte de revision qui soit envisagée
par le statut est celle du statut lui-mêmedont l'article II stipulc
qu'il « peut êtreamendé par décision de l'Assembléegénérale u.
On ne peut donc estimer, avec le délégué de l'Argentine dans sa
déclaration du 4 décembre 1953 (doc. A/C. 51SR. 421 du 5 décem-
bre, texte français,p. 20), qu'ciil n'y a dans le statut aucune dispo-
sition par laquelle l'Assembléea renoncé à son droit inaliénable

d'étudier, toutes les questions qui sont du domaine de l'orga-
nisation o. Car il ne s'agit pas ici d'riétudier une question » : il
s'agit de prendre une décision d'ordre juridictionnel, de reviser
un jugement.
L'Assemblée générale exercerait une certaine foiiction juridic-
tionnelle alors que rien, dans la Charte, ne permet de lui recon-
naître cette faculté. Dans le cadre de ses compétences générales,
en vertu des articles IO et suivants, l'Assembléene peut prendre30 EXPOSE DU GOU\-ERXE~IEST FRASÇAIS
que des recommandations, ce 'clu'onne peut véritablement étendre
à la notion de jugement. L'approbation du budget, prévue à

l'article 17 et sur laquelle des explications seront données dans
le présent esposé, ne peut non plus êtreconsidéréecomme une
fonction juridictionnelle,car elle ne s'applique pas à une situation
contentieuse. On peut en dire autant des diverses dispositions
de la Charte par lesquelles l'Assembléea un pouvoir d'acceptation
d'accords (articles16, 17, §3, 62, 53, etc.).
Cela ne signifie pas d'ailleurs que l'Assemblée ne soit pas en
mesure d'assurer une certaine forme de protection au personnel
des Xations Unies, tout comme un parlement national peut être
en mesure de protéger les intérêtsdes fonctionnaires nationaux.
Xais cette protection est une protection d'ordre généralet régle-
nientaire, et non pas d'ordre juridictionnel. En exerçant cette
compétence l'Assemblée générale restera dans le cadre de ses

activités. Par contre, on voit mal comment elle pourrait exercer
la fonction juridictionnelle de revision des jugements du Tribunal
administratif. Le représentant de l'Inde disait le 7 décembre 1953
(doc. A/C. 5/SR. 425, IO décenibre, texte français, p. 19):s ...les
affaires soumises au Tribunal ne peuvent guère êtredécidéespar
la méthode de vote et ...l'Assembléegénéralen'est pas une institu-
tion adéquate pour trancher des questions de droit et moins encore
pour examiner des cas individuels du point de vue juridique 11.
Pour nier l'autorité de chose jugée attachée aux décisions du
Tribunal administratif, on invoque parfois un précédent tiré de
l'histoire du Tribunal administratif de la S. d. N.
En fait, le principe de l'autorité des jugements du Tribunal
administratif de la S. d. N. n'a pas étécontesté et ce n'est qu'au

moment de la liquidation de la S. d. N., en 1946, que certaines
décisions du Tribunal administratif ont étéécartéespar l'Assem-
blée de la S. d. X. dans des circonstances que le Gouvernement
de la République française croit devoir rappeler parce que cette
intervention de 1'Assemblée.dela S. d. N. a étéinvoquée comme
justifiant,par analogie, un pouvoir de revision de l'Assemblée
générale desNations Unies à l'égard des jugements du Tribunal
administratif. Le précédent a étéinvoqué par le délégué des États-
Unis dans son exposé devant la gme Commission le 3 décembre
1953 (doc. A/C. j/Sli. 420 du 7 décembre, texte français, p. 9).
Par contre, il ne fut pas meiitioiiné lors des débats qui eurent
lieu en 1949 au moment de la création du Tribunal administratif
des Xations Unies. On peut se référerpar exemple à la déclaration

du représentant des États-Unis, le 2 novembre 1949, devant la
jmc Commission (doc. A/C. 5/SR. 214 du 3 novembre 1949, $25) :
Il est important, disait ce représentant, de comprendre claire-
ment la relation qu'il y aura cntre l'autorité du Tribunal et celle
de l'Assemblée elle-même ; (la délégation américaine) tient à
s'assurer que le Tribunal ne sera pas en mesure de contester l'auto-
rité de l'Assemblée généralelorsqu'elle procédera à telles modi- EXPOSÉ nu GOUVERNEMEXT FRXNÇAIS 31

fications du règlement du personnel que l'évolution des circons-
tances pourrait exiger.... Il est bien entendu que le Tribunal
tiendra compte de cette intention de l'Assemblée généraleet ne
permettra la création d'aucun droit acquis susceptible d'enlever
leur portée aux mesures que SAssemhlée estimerait nécessaires. ))
Cette déclaration du représentant des États-unis est intéres-
sante, parce qu'elle souligne, de l'avis du Gouvernement de la
.République française, en quoi consiste le véritable problème de

la revision: ce que le représentant des États-Unis voulait éviter,
c'est la création de droits acquis mettant obstacle à toute faculté
de revision réglementaire de l'Assemblée générale, mais il ne
faisait évidemment pas allusion aux droits crééspar des décisions
antérieures de l'Assemblée dont le Tribunal administratif a pour
tâche d'assurer l'application; son appréhension eût étésans objet
s'il avait cru possible la revision par l'Assemblée des sentences

du Tribunal.
En 1946 précisément,l'Assembléede la S. d. N. a sanctionné ce
qu'elle a pensé être une ingérence du Tribunal administratif dans
le domaine du pouvoir réglementaire de l'Assemblée.
Le Tribunal administratif avait, le 26 février1946, refusé,dans
une série de jugements, l'application à des fonctionnaires de la
S. d. N. d'une résolution de l'Assemblée du 14 décembre 1939
prévoyant dans le cadre des mesures de crise exigées par la guerre
la suspension de certains contrats ou la démission de certains
fonctionnaires et modifiant les conditions du préavis et de l'indem-
nité de licenciement. Ce faisant, le Tribunal administratif avait
adopté la thèse des requérants d'après laquelle cles droits conférés
aux fonctionnaires par les dispositions du statut. sont des droits
acquis qui ne peuvent pas êtremodifiés, mêmepar une décision

de l'Assemblée >(cf. doc. S. dN. A 16 1946 du 22 mars 1946,p. 2).
Le Tribunal avait affirméque 1,les dispositions du statut du per-
sonnel constituaient, en principe, un élément contractuel de la
situation des fonctionnaires » et que ceux-ci cpossédaient un droit
acquis à l'application des règles du statut en vigueur au moment
de leur engagement » (ibid.p. 5).
L'Assemblée fut amenée à examiner la question de principe
incluse dans ces affaires parce que la Commission de Contrôle de
la S. d. N., consultée par le Secrétaire généralp. i. sur l'appli-
cation des jugements en cause, invita celui-ci à ne prendre aucune
mesure à ce sujet avant que la question n'ait étéexaminée, dans
son ensemble, par l'Assemblée, parce qu'une acceptation des
jugements du Tribunal administratif placerait ses décisions en
dehors de l'autorité de l'Assemblée (cf. rapport général de la
zmc Commission de l'Assembléedu 17 avril1946, doc. Al32 1946,

x, p. 4).
Il ressort de ces documents que la question de principe effec-
tivement posée devant l'Assemblée fut, non pas celle du droit32 EXPOSÉ DU 'OU\~ERXEUEXT FRAXÇAIS

de regard de l'Assembléesur les jugements du Tribunal admiiiis-
tratif, mais bien à l'inverse celle du droit de regard du Tribunal
administratif sur les décisions de portée réglementaire de l'Assem-
blée. Ce n'est pas l'Assembléequi prétendait pouvoir annuler les
jugements du Tribunal mais le Tribunal qui avait annulé les
effets d'une réglementation prise par l'Assemblée.
Cette même observation se trouve faite dans le rapport présenté
à la zme Commission par le sous-comité que cette comn~ission
avait institué pour examiner le problème. On trouve dans ce

rapport les affirmations suivantes qui sont caractéristiques (ibid.,
pp. 5 et 6) : aDire que le Tribunal pouvait appliquer les décisions
de l'Assemblée à des cas particuliers ne signifie pas qu'il pouvait
mettre en question la validité de ces décisions elles-mêmes i(5 1).
« Il n'existe pas d'organisinc extérieur qui ait.<lualité pour rendre
exécutoire la décisionrendne par le Tribunal contre YAssemblée. n
<iIl n'appartenait pas au Tribunal administratif de mettre en
doute la validité de la résolution de l'Assemblée en date du
14 décembre 1939, il lui incombait exclusivement de donner effet

à cette décision D (§ 5).c Bien qu'il n'existe pas de moyen régulier
d'en appeler de la décision dii Tribunal, nous estimons qu'il est
du pouvoir de l'Assemblée,laquelle est le mieux placée pour inter-
préter ses propres décisions, de déclarer, par voie de résolution
législative, que les jugements.rendus par le Tribunal sont de nul
effet à la fois parce qu'ils tendaient à passer outre à l'acte législatif
de l'Assemblée et en raison de leur conclusion erronée quant à
l'intention de cet acte >I(§ 6).
La doctrine qui émane dc ces affirmations est 'nette : la discus-
sion porte sur le pouvoir du Tribuval administratif vis-à-vis des

décisions de I'.4ssemblécet il est reconnu s qu'il n'existe pas de
moyen régulier d'en appeler de la 'décision du Tribunal ». C'est
uniquement dans le cas où leTribuna1 se place au-dessus de l'Assem-
blée que l'Assemblée peut meconnaître la décision du Tribunal.
Au fond, en 1946, on a refuséd'appliquer une décisionjuridiction-
nelle entachée d'excès de pouvoir.
Les conclusions du rapport du sous-comité qniont étéadoptées
par la zme Commission et finalement par l'Assemblée font donc
ressortir la différence radicale entre le problème posé en 1946 à

la S.d. i\'. et le problème poséen 1953 aux Xations Unies. Ainsi
que le soulignait le représentant de l'Uruguay le 4 décembre 1953
(doc. A/C. j/SR 422 du 8 décembre, texte français,p. 12): ndans
les cas en discussion leTribunal n'a niillement essayé de substituer
son autorité à celle de I'Assenibléegénéraleet il n'a ni annulé, ni
mêmesoumis à revision l'une i~iielconquedes décisionsde 1'Assem-
bléeII.En 1953 ni le Secrétaire général, niaucun gouvernement
n'ont prétendu que le Tribunal administratif avait délibérément
rejeté une décisiond'ordre réglementaire prise antérieurement par

l'Assemblée généraleL .e Gouvernement de la République française,
sans prendre position sur la doctrine exposée en 1946par le sous- EXPOSE DU GOU\~ERSE~IEXT FRASÇAIS 33
comité, estime que cette différenceest essentielle, L'analogie qui
serait invoquée pour tirer de ce précédentintéressant la S. d. N.

un argument concernant les Nations Unies est superficielle. La
structure générale duTribunal administratif de la S. d. N. confirme
au surplus l'interprétation qui vient d'étre donnéedu précédent
de 1946.Dans le rapport de la Commission de Contrôle qui élabora
le projet de statut du Tribunal et qui fut soumis à l'Assembléele
29 avril 1927 (cité par Siraud, Le Tribunal administratif de la
S. d. N., thèse,Paris,1942,p. a+),on relève l'observation suivante:
(iLe statut international de la S. dN. empêcheles fonitionnaires
d'intenter des actions devant les tribunaux ordinaires en vue de
l'application des clauses de leurs contrats d'engagement. On ne
saurait toutefois estimer satisfaisant qu'unecatégorie de fonction-
naires, comptant plusieurs centaines de personnes engagéessuivant
des contrats qui sont nécessairement compliqués et qui peuvent
donner lien à des différends quant à leurs effets légaux précis,
n'aient pas la possibilité de soumettre à la décision d'un corps
judiciaire des questions concernant leurs droits.nEt commentant
les caractères générauxdu Tribunal administratif de la S. d. N.,
M. Siraud (ibid., p. 31) écrivait: aLe problème à résoudre ....

consistait à établir dans une sociétinter-étatique une organisation
de la fonction juridictionnelle différenciéeà la fois des organes
juridictionnels étatiques et des organes inter-étatiques investis de
la fonction législative ou de la fonction exécutive.»
L'étude des textes réglant la compétencedu Tribunal adminis-
tratif des Xations Unies, comme celle des précédents,conduit le
Gouvernement de la République française à la conclusion que les
décisionsdu Tribunal administratif ont un caractère juridictionnel.
Il faut simplement ajouter qu'un examen des travaux prépara-
toires, notamment des débats qui ont eu lieu en 1949 à lajinoCom-
mission de l'Assembléelors de la créationdu Tribunal administratif,
conduit à la même conclusion.Au cours de ces débats, certaines
délégations, telles que les délégations des États-Unis 'et de
1%. R. S. S., se sont montrées peu favorables à la création du
Tribunal. La délégationsoviétique notamment proposa de substi-
tuer au nom de Trib.una1 administratif qu'elle jugeait impropre,
celui de conseil ou de comité administratif, ou encore celui de
commission des réclamations(doc. A/C.j/SR 189du j octobre 1949,
5 13). Répondant sur ce point au délégué soviétique,M. Aghnidès,
président du comité consultatif pour les questions administratives

et budgétaires, ht observer «qu'il n'y aurait pas de difficulté à
modifier le nom du Tribunal administratif, pourvu que le caractère
de tribunal ne s'en trouve pas affecté» (ibid.5 17).La délégation
soviétique ayant cependant insisté, sa proposition fut repoussée
le 2 novembre 1949, par 19 voix contre 5 avec 13 abstentions,
et l'articlI tel qu'il existe dans le statut fut adopté le même
jour par 32 voix contre O avec 3 abstentions (doc. A/C. 5/SR.
214 du 3 novembre 1949, 5 33).
434 ESPOSÉ DU GOUVERSE~IEST FRASÇAIS

En présencedes dispositions formelles du statut et des ensei-
gnements tirés des débats de 1949, il faut bien constater que
l'Assembléegénérale aincontestablement voulu créerun tribunal,
avec les caractéristiques habituelles que possède un tribunal dans

toute sociétéet dans tout ordre juridique, qu'il s'agisse d'un ordre
juridique interne ou d'un ordre juridique international.
Certains gouvernements ont parfois mis en doute le pouvoir
de l'Assemblée générale de créerun véritable tribunal, un tel
t,ribunal n'étant pas prévu par la Charte. Le représentant des
Etats-Unis à la jme Commission a, par exemple, déclaréle 3 dé-
cembre 1953 (doc. A/C. 7/SR. 420 du 7décembre1953, p. 7 du texte
français) que Iles décisions (du Tribunal administratif) ne sont

pas celles d'un tribunal, mais d'un organe administratif subsidiaire
qui a étécréépar l'Assembléegénéralen.Ce représentant a insisté
en particulier (ibid.) sur la différencequ'il y a R entre un organe
principal des Nations Unies, tel que l'Assembléegénérale,au sens de
l'article 7, paragraphe I, de la Charte et un organe subsidiaire, au
sens des articles7, paragraphe z, et 22 de la Charte, destiné à remplir
certaines fonctions que la Charte confie à l'Assemblée général e.

On voit apparaître ici l'idéede délégationde compétence. En
déléguantune compétence au Tribunal administratif, l'Assemblée
ne s'en serait pas dessaisie définitivement, car (ibid.) cielle ne peut
pas se soustraire à sa responsabilité >Iqui résulte de l'article 101.
Cet article 101, en effet, stipule dans son paragraphe I que «le
personnel (du Secrétariat) est nommé par le Secrétaire général
conformément aux règles fixéespar 1'.4ssembléegénérale D.

Le représentant des États-Unis en déduisait que ~1'Assem-
blée ....de par la Charte, ne peut pas déléguerles pouvoirs dont
elle est investie en matière d'ouvertures de crédits à un petit
groupe de quatre personnes, quel que soit le soin qui a présidé à
leur choix 1)(ibid., p. 9).
Cette idée de 11délégation JIa étéinvoquée par d'autres repré-
sentants, au cours de ce mémedébat de 1953. mais comme argu-
ment en faveur d'une thèse opposéeà la thèse précédente.C'est

ainsi que le représentant de la Syrie, le 7 décembre 1953. a déclaré
(doc. A/C. 5/SR 425 du Io décembre, texte français, p. 7) que le
Tribunal administratif «dispose des pleins pouvoirs judiciaires qui
lui ont étédélégués II.Et ce représentant établissait une analogie
entre la situation du Tribunal administratif des Nations Unies
et celle du Conseil d'État français après la loi du 24 mai 1872 qui
a substitué au régime dit de la justice retenue IIdans lequel le

Conseil d'État ne statuait qu'à titre de conseiller du pouvoir
exécutif, le régime dit de la e justice délégué e, dans lequel le
Conseil dispose d'un pouvoir de décision propre et indépendant.
Le Gouvernement de la République française ne considère pas
comme pertinente l'argumentation fondée sur cette notion, que
cette argumentation soit favorable oi? qu'elle soit défavorable au
Tribunal administratif. En effet, ainsi que l'a fait trhs exactement. EXPOSÉ DU GOUVERNEMENT FRANÇAIS 35

remarquer le représentant des Pays-Bas dans son intervention
du 4 décembre 1953 (doc. A/C. j/SR 421 du 7 décembre 1953,
texte français, p. 6), c1'Assemblée générale n'a pas crééle

Tribunal administratif pour l'aider dans l'exercice d'une fonction
dont elle pourrait en principe s'acquitter elle-même; au contraire,
elle a créé cet organecar elle ne pouvait pas remplir des fonctions
judiciaires1).Le représentant de l'Inde disait de même,le 7 dé-
, cembre (doc. A/C. 5/SR. 4zj du IO décembre,texte français, p. xg),
que ila création mêmedu Tribunal, avec l'autorité dont il a été
investi par l'Assembléegénérale,prouve que cette dernière s'est

bien rendu compte que la nature mêmedes choses lui interdit
le rôle d'organe judiciaire II.Le représentant du Liban soulignait
le même jour,dans le même sens,qu'~(aucune disposition de la
Charte ne donne à l'Assembléede pouvoirs judiciaires >Iet que,
par conséquent, l'Assemblée«ne peut déléguerau Tribunal des
pouvoirs judiciaires qu'elle ne possède pas 11;et s'il n'en était pas
ainsi, Rcela reviendrait à dire que l'Assembléegénérale,qui n'a
pas de pouvoirs judiciaires, a agi d'une manière illégale lorsqu'elle

a créé leTribunalen tant qu'organe subsidiaire i,(doc. A/C. 5/SR.
426 du 9 décembre, texte français, p. 17).
Ainsi apparaît la difficulté qu!il y aurait à utiliser la notion
de délégation,dans toute la mesure où SAssembléegénéraleest
un organe essentiellement politique, auquel nulle disposition de
la Charte ne confère de compétence juridictionnelle, l'organe judi-
'ciaire principal des Nations Unies étant la Cour internationale

de Justice, d'après l'article gz de la Charte.
Le Gouvernement de la République française estime injustifié
de donner un sens trop étroit au concept d'«organe subsidiaire u
tel qu'il est prévu aux articles7, paragraphe 2,et zz de la Charte.
Il n'est nulle part dit dans la Charte qu'un organe subsidiaire ne
peut exercer qu'une compétencedéjàpossédée par Sorgane principal
qui l'a créé. Carc'est de la Charte que l'organe subsidiaire tient
sa légitimité.Le mode de création est une chose, la nature de

l'organe en est une autre. L'Assemblée,le Conseil de Sécuritéet
le Conseil économiqueet social peuvent créer des organes subsi-
diaires. La seule condition apportée par la Charte à leur création
est qu'ils soient jugés anécessaires à l'exercice des fonctions >Ide
l'organe principal fondateur (articles zz, zg et 68). L'Assemblée
généralepeut valablement créerun organe subsidiaire qui exerce
une fonction judiciaire, cette création ne provenant pas d'une

délégation de compétence, mais del'exercice du pouvoir reconnu
à l'Assemblée généralp ear la Charte de créer tout organe néces-
saireà son bon fonctionnement.
Cette idéea étébien soulignéepar le représentant de la Colom-
bie le 4 décembre 1953 (doc. A/C. j/SR. 421 du 7 décembre1953,
texte français, p. 17), lorsqu'il a préciséque le fait qu'un organe
établit un autre organe n'implique pas nécessairement que le
deuxième organe est subordonné au premier 11,et par le repré-36 ESPOSÉ DU GOUVERXEYENT FKAKÇAIS

sentant du Liban, le 7 décembre 1953 (doc. A/C. 5/SR. 426 du
9 décembre, texte français, p. 17), d'après lequel un organe créé
par l'Assembléegénéraleen application de l'article 7, paragraphe 2,
de la Charte, « est un organe subsidiaire des Nations Unies et
non de l'organe principal auquel l'organisation a confiéla tàche
de le créer »,et les pouvoirs de cet organe (rdécoulent directement
de la Charte et non d'une délégationfaite par l'Assemblée géné-
rale D.

Aucune disposition de la Charte n'a interdit à l'Assemblée
généralede créer untribunal pour trancher des difficultés conten-
tieuses pouvant résulter de l'activité du Secrétariat. L'essentiel est
de constater que cette création s'est révélée Knécessaire », pour
reprendre l'expression de l'article 7, paragraphe 2, en particulier
pour l'application de l'article 101, paragraphe I, qui associe le '
Secrétaire généralet 1'Assembli:egénéraledans une responsabilité
conjointe en ce qui concerne lc personnel de l'organisation.
Les constatations précédenti:~permettent de préciser la légi-

timité et le rôle du Tribunal administratif, sans qu'il soit néces-
saire de faire appel une justification doctrinale telle que la théo-
tie de la séparation des pouvoirs, à laquelle il fut fait allusion
au cours des débats aux Nations Unies ; M. Aghnidès, président
du Comitéconsultatif pour les questions administratives et budgé-
taires, déclara, lorsque commcnça. le 29 septembre 1949, le débat
sur la création du Tribunal administratif des Nations Unies (doc.
A/C. e>/SR. 187 du 29 septembre 1949, § 48), que ula création
d'un tel tribunal ....permettant à tout membre du personnel
d'avoir recours à une juridiction impartiale dont le Secrétaire

général ne faisaitpas partie, le principe de la séparation des pou-
voirs était ainsi mis en vigiiciir de façon très stricte x.Il s'agit
donc ici des pouvoirs du Secrétaire généralet du Tribunal. Le
représentant du Canada, le 5 décembre 1953 (doc. A/C. 5/SR.
423 du 8 décembre 1953, texte français, p. 3),et le représentant
de l'Inde, le 7 décembre1953 (doc. A/C. 5/SR 425 du IO décem-
bre, texte français, p. 19) faisaient allusion aà la séparation des
pouvoirs législatif et judiciairen.
Il suffit, dans le cadre du présent exposé,de marquer que l'inten-
tion qui a présidéà la création du Tribunal administratif a été

d'instituer, à côté du Secrétaire général,un contrôle de caractère
jiiridictionnel, dont l'exercice a étéconfiéà un organe indépendant
du Secrétaire général.Il s'agit donc de la séparation des fonctions
d'administrateur et de juge. Le régimedes agents internationaux,
dont seuls les principes les plus générauxont étéformulésdans la
Charte, n'a pas pris forme définitive dès la création des Nations
Unies. Dans la première pCriode de mise au point, par la force des
choses, le personnel a étésoumis à la règle de l'administration.
Mais il n'y a pas de carrière sans garanties. Ces garanties ont pris

une double forme, celle d'institutions consultatives, commissions
de discipline et de recours, placées auprès de l'administration, et EXPOS~ DU GOUVER'E~~ENT FRANÇAIS 37

celle d'un organe juridictioiinel indkpendant de l'administration
active. Au momcnt de la création du Tribunal administratif, on a
hésitéentre la désignation de ses membres par la Cour interna-

tionale de Justice et leur nomination par l'Assembléegénérale.
Mais, à aucun momcnt, il n'y eut de doute sur l'utilité d'untribunal
administratif comme garant de l'indépendance desfonctionnaires
internationaux, considérée commeindispensable par l'article 105,
paragraphe z, de la Charte. La complexité croissante des règle-
ments administratifs inhérents au développement de la fonction
publique internationale a rendu a nécessaire 1un organe de .carac-
tère juridictionnel, pour les Rations Unies, comme plus tôt pour
la S. d. N. et le B. 1.T. Le président du Comité du personnel,
M. Epstein, disait devant la 5mc Commission, le 5 octobre '1949

(doc. A/C. 51SR. 190, 12) :CIle fait qu'il existait des règles, des
règlements et des procédures administratifs susceptibles d'être
interprétés de façon erronée sembleêtreun argument irrésistible
en faveur de la création d'un organisme impartis! chargé de
prendre une décisionau sujet de tout différendprovoqué par leur
application 1).
De la nature juridictionnelle du Tribunal administratif découlent
des conséquences naturelles. confirmées .par les textes. La plus
importante est que le Tribunal est juge de sa compétence.Certains
représentants lors des débatsde 1953 n'admettaient pas ce principe.

C'est ainsi que, d'après le délégué de l'Australie, dans son exposé
du 4 décembre 1953 (doc. A/C. s/SR. 421 du 7 décembre 1953,
texte français, pp. IO et II), l'Assembléegénéralene serait pas
tenue de suivre le Tribunal administratif asi celui-ci faisait fi de
son autorité, agissait de façon répréhensible ou contraire à la
raison, obéissait à son seul bon plaisir, ou tolérait de la part du
Secrétaire général desmesures uniquement dictées par le bon
plaisir de celui-ci, s'ilcommettait un abus de pouvoir, s'il selaissait
corrompre ou si ses décisions avaient pour résultat de créer ou

d'aggraver des injustices au lieu de les redresser ».
Ces notions se ramènent en somme à l'incompétenceou l'abus de
pouvoir du Tribuilal. C'est là une hypothèse théorique et non
actuelle que le Gouvernement de la République n'estime pas
nécessairede traiter. Mais en admettant mêmeque les cas envisagés
par le délégué de l'Australie poseraient le problème de l'excèsde
pouvoir du Tribunal, cet excès de pouvoir ne retirerait pas, bien
au contraire, l'autorité de chose jugée aux décisionsdu Tribunal
en dehors des cas où il serait prouvé. Or,dans la présentedemande
d'avis, la Cour n'est pas saisie de la question de la nature et des

effets d'un excès de pouvoir du Tribunal administratif d'une orga-
nisation internationale. Le problème poséest celui de l'exécution
ou du refus d'exécution d'un jugement «accordant une indemnité
à un fonctionnaire IIen dehors de toute considération d'excès de
pouvoir du juge et de revision de cet excès de pouvoir ;le moyen
dont.dispose l'Assembléepour empêcher l'exécution des jugements,c'est de refuser le vote du crédit permettant le règlement de cette
indemnité. L'Assemblée générale peut-elle le faire ?

Rapports entre l'Assembléegénéraleet le Tribunal administrati/
en ce qui concerne l'exécutiondes décisions du Tribunal

Les pouvoirs financiers de l'Assembléesont prévuspar l'article 17
de la Charte. Le principe en est énoncépar le paragraphe I de cet
article, d'après lequel l'Assemblée généraleexamine et approuve
ie budget de l'organisation II.Les indemnités accordées par le
Tribunal administratif devant être comprises dans les crédits
budgétaires, l'Assemblée en est indirectement maîtresse par son
pouvoir de vote dérivant de l'article 17.
Cette situation a étéconsidéréecomme l'expression d'un droit
propre de l'Assemblée sur les décisions du Tribunal. Le repré-
sentant des États-Unis dans son intervention du 3 décembre
1953 (doc. A/C. 5/SR. 420 du 7 décembre 1953. texte français,

p. 8) déclarait : aLes crédits nécessaires au versement des indem-
nités doivent êtreouverts par l'Assembléedans le cadre du budget
de l'organisation ; or, en vertu de l'article 17 de la Charte, c'est
l'Assemblée généralequi approuve le budget de l'organisation ;
si, comme ses fonctions l'y obligent, elle veut étudier et approuver
les crédits en question, l'Assemblée non seulement peut, mais
doit, examiner à nouveau les décisions du Tribunal .... » De même
le déléguéde l'Australie disait, le 4 décembre 1953 (doc. A/C.
5/SR. 421 du 7 décembre 1953, texte français, p. II) : «L'Orga-
nisation doit verser l'indemniti; seulement si elle n'est pas dérai-
sonnable ou discriminatoire, et si le Tribunal a exercé convenable-

ment les pouvoirs qui lui sont confiés ....L'Assemblée n'a pas
renoncé à son pouvoir d'approuver le budget et, l'aurait-elle
voulu, que la Charte nc le lui permettrait pas. Il ne fait donc
aucun doute que l'Assemblée a le droit de refuser l'ouverture
d'un crédit s'il a..arait que le Tribunal a aei co-trairement à
la raison. »
Le délégué de Cuba disait, 11:5 décembre 1953 (doc. A/C. 5/SR.
427 du 8 décembre. texte francais> . A. -, : «L'Assemblée eéné-
;a& possèdedes pouvoirs souverainsauxquels elle ne peut renoncer ;
mêmesi elle estime les jugements du Tribunal parfaitement fondés,
elle doit se prononcer sur l'ouverture des crédits nécessaires au

versement des indemnités. >) Le déléguéde la Nouvelle-Zélande
disait, le 5 décembre 1953 (doc. A/C. 5/SR 423 du 8 décembre,
texte français, pp. 9 et IO) : CISeules les plus graves raisons justi-
fieraient une décisionpar laquelle l'Assemblée .... refuserait d'ouvrir
les crédits nécessaires au versement des indemnités. Il peut arriver
que les jugements du Tribunal soient si évidemment entachés
d'erreurs que l'Assembléesoit justifiée à refuser de les exécuter ...» EXPOSE DU GOGYERKEYEXT FRANÇAIS 39

Enfin, le déléguédu Chili disait, le 8 décembre 19j3 (doc. A/C.
5/SK 427 du II décembre, texte français, pp. 9-10) :ciL'Assem-
blée générale ne peut revoir ou reviser les jugements du Tribunal
administratif, mais a le droit de décider des ouvertures de crédit
nécessaires pour régler les indemnités. Lorsque I'Assemblée se
prononce sur les différents chapitres du budget de I'Orgaxiisation,
elle peut fort bien émettrc un vote négatif sur tel ou tel chapitre
lorsqu'elle considère que les crédits prévus sont excessifs.... Les

décisionsdu Tribunal ne sont pas sujettes à revision :mais l'Assem-
bléegénérale n'estpas, de ce fait, privéede son pouvoir de trancher
toute question d'ordre budgétaire. il
Les citations précédentes montrent que ceux qui admettent
l'existence d'un véritable droit au profit de l'Assembléeen matière
de vote des crédits n'ont pas une opinion très nette en ce qui
concerne la portée de ce droit. Meme les plus ardents partisans
du pouvoir de l'Assembléen'osent y voir un pouvoir discrétionnaire
'et estiment que ce pouvoir ne peut s'exercer ,que pour des motifs
ou dans des cas déterminés.Le délégué des Etats-Unis, dans son
exposéprécitédu 3 décembre1953(doc. cit., pp. 9-10),reconnaissait
qu'"en règle généralel'Assembléene doit pas chercher à revenir

sur les décisions du Tribunal administratif » et qu's un nouvel
examen des décisions par l'Assemblée générale nedevrait pas
constituer un précédentqui puisse êtreinvoqué à l'occasion de
toutes les décisionsfutures du Tnbunal ».
Mais les difficultéscommencent lorsqu'on veut déterminer quels
sont les motifs qui sont susceptibles de justifier un refus de crédits
par I'Assemblée, et la recherche de ces motifs équivaut à un
réexamen des sentences du Tribunal au gréde la majoritépolitique
existant dans l'Assemblée.
Le Gouvernement de la République française considère que la
thèse d'un droit de revision de l'Assembléerepose sur une confusion
et une ambiguïté et qu'il s'agit en réalitéd'un pouvoir non discré-

tionnaire de l'ilssemblée. Ce pouvoir ne saurait en aucun cas
porter atteinte aux droits légitimement acquis des créanciers des
Nations Unies.
L'Assemblée examine et approuve le budget, mais c'est le
Secrétaire généralqui l'exécute. Il a déjà étésouligné que le
Secrétaire général est chargéd'appliquer les décisionsdu Tribunal
administratif et notamment d'assurer le versement des indemnités
fixéespar le Tribunal. Ce versement est effectué sur. les crédits
du chapitre 17 du budget (dépenses communes afférentesau per-
sonnel) qui sont votés chaque année en bloc par l'Assemblée
générale. D'après le règlement financier, le Secrétaire général
dispose des fonds affectés à un chapitre sans avoir besoin d'une

autorisation spécialede l'Assembléeet peut procéder à des vire-
ments de poste à poste à l'intérieur d'un chapitre ;s'il veut pro-
céder à un virement d'un chapitre à un autre chapitre, l'autori-
sation du Comité consultatif pour les questions administratives40 EXPOSÉ DU GOU'~~ERNEMENT FRANÇAIS
et budgétaires est nécessaire. Ilans la présentation du projet de

budget à l'Assembléegénérale,le Secrétaire généralspécifie,dans
le cadre de chaque chapitre, I'affectation des crédits aux différents
postes, mais sans êtrelié par ces indications.
Il suffit donc que les crédits du chapitre17 soient encore suffi-
sants au moment où il y a lieu à versement des indemnités fixées
par le Tribunal, ou que le Secrétaire généralpuisse opérer un
virement de chapitre à chapitre, pour que ce versement ait lieu
sans aucune intervention de Y.4ssembléegénérale.En fait, dans
les affaires antérieures celles d'août et octobr1953, le Secrétaire
général aeffectué les paiements sur les fonds faisant partie des
crédits du chapitre 17 du budget.
Ainsi la procédure normale d'exécutioii des jugements du Tri-
bunal administratif ne comporte aucune intervention particulière
de l'Assemblée générale,après qu'elle a voté les crédits afférant
au chapitre 17. L'Assemblée sera saisie du règlement des indem-
nités si ce règlement exige des crédits additionnels, soit que le

Secrétaire généraln'ait pas le moyen de procéder autrement que
par une demande de tels crédits, soit qu'il ne veuille pas prendre
la responsabilité d'un virement de crédits. Le pouvoir budgétaire
de l'Assemblée s'exercedonc, soit à l'avance au moment du vote
du budget et à propos des prévisions contenues dans le projet de
budget présenté par le Secrétaire général, soit a $osteriori si des
crédits additionnels sont nécessaires.
Lors du vote du budget, le contrôle des indemnités que le
Tribunal pourra décider dans l'avenir serait sans objet, puisque
seules les situations particulières et concrètes résultant de chaque
jugement pourraient donner lieu à contrôle. En effet, les indem-
nités éventuelles étant régulièrement imputées sur les crédits du
chapitre 17 qui ont étévotés au préalable par l'Assemblée, onpeut
dire, pour reprendre les termes du déléguédu Liban dans son
exposé du 7 décembre 1953 (doc. A/C. 5/SR. 426 du 9décembre,
texte français, p. 18),que ~~1'Assemblés e'est engagée d'avance

à ouvrir les crédits nécessaires pour payer les indemnités fixées
par le Tribunal s.Ainsi, lorsqu'il n'y a pas de demande de crédits
additionnels, l'Assembléen'a aucun moyen fondé sur son pouvoir
budgétaire d'intervenir dans le règlement des indemnités.
C'est donc par accident en quelque sorte, si les crédits sont
insuffisants, que l'Assemblée peut être amenée à user de son
pouvoir budgétaire pour refusei- les crédits additionnels nécessaires
au paiement d'indemnités. Pour généraliser cette situation, il
faudrait que l'Assemblée fassedisparaître de son budget les crédits
prévus à l'avance pour le licenciement du personnel.
Le Gouvernement de la Rkpublique française estime que ce
serait détourner ce pouvoir budgétaire de sa véritable fin que
d'en faire un moyen juridique de mise en échec d'une décision
du Tribunal administratif qui, pour une raison ou pour une autre,
déplairait à la majorité des membres de l'Assemblée. EXPOSÉ DU GOUVERSEYEST FIWSÇ.IIS 47

En fait cette question a parfois étéexposée en confondant
divers problèmes. Une question est de savoir si, en présence d'un
excès de pouvoir, l'Assemblée a le droit de considérer une déci-
sion du Tribunal administratif comme nulle et non avenue ;comme
il a étéindiquéplus haut, cette question n'est pas posée à la Cour.
En dehors de cette hypothèse, une autre question est de savoir
si l'Assemblée est compétente pour annuler les dettes de l'Orga-

nisation des Nations Unies ; cette question on ne peut évidem-
ment répondre que par la négative. Dès lors, un point est clair,
en présence de dettes liquides et exigibles de l'organisation des
Xations Unies, aucune démarche, aucune décision de YAssem-
bléedes Nations Unies ne peut porter atteinte à ces droits.
Quelle est donc la nature exacte des pouvoirs budgétaires de
l'Assemblée ? Le Gouvernement de la République française estime
inutile de discuter la question dans son ensemble ; il sufft, aux
fins de la présente demande d'avis, d'examiner la compétence
de l'Assembléeen présence de dettes liquides et exigibles.
]>ans cette hypothèse. l'Assemblée n'a que des pouvoirs de

nature financière ; impuissante à agir sur les titres que se sont
acquis les créanciers, elle ne peut que retarder financièrement
leur extinction et elle n'a le droit de le faire que pour des motifs
financiers.
Tout rcfus qui serait inspiré par le désir de faire échec aux
engagements des Nations Unies serait illégitime, et le Gouver-
nement de la République française se refuse, en ce qui le concerne,
à envisager cette hypothèse, quel que soit le créancier dont il
s'agisse.
Tant les précédents que les textes conduisent à fortifier cette

position.
A l'époquede la S. d. N., un comité de juristes fut institué par
le président de la première commission de la l=jme Assemblée
pour émettre un avissur le droit éventuel de YAssembléede réduire
le traitement des fonctionnaires (cf. J. O. de la S. d. N., supplé-
ment spécial n" 107, p. 206). Ce cornité était composé de
MRI.Andersen, Basdevant, Huber, sir William Nalkin, et Pedroso.
Dans son avis donné à l'unanimité le 8 octobre 1932, ce comité
a notamment posé 1a.question suivante :ii...L'Assembléea-t-elle
le droit de dérogèr.(aux droits des fonctionnaires) dans l'exercice

de son pouvoir budgétaire ? n,et y a répondu ainsi :ciDans I'éta-
blissement de ses prévisions de dépenses, l'Assembléeest juridique-
ment tenue de prendre pour base les droits des fonctionnaires. »
Comme l'a fait très justement remarquer le déléguéde la Syrie
le 7décembre 1953 (doc. A/C. 5/s11. 426 du IO décembre, texte
français, p. 8), Idans l'argument selon lequel l'Assemblée possède
l'autorité suprême en matière budgétaire ....on confondait sans
doute « pouvoir » et CIdroit 1; nul ne songe à contester le pouvoir
de L'Assembléed'ouvrir ou de refuser des crédits, mais elle n'a
certes pas le droit de se dérober à ses obligations financières ...D.42 ESPOSÉ DU GOUPERSE>IEST I'RASÇAIS

De même le délégué de l'Égypte déclarait, le 7 décembre 1953
(doc. A/C. 5/SR. 426 du 9 décembre, texte français, p. 26). que
<Il'Assemblée générale .... est tenue de voter immédiatement les
crédits nécessaires au paiement des indemnités 1).Et le délégué
de la Norvège constatait le 7 décembre aussi (doc. A/C. 51SR.
426 du 9 décembre,texte français, p. 15) qii's en refusant d'ouvrir
les crédits supplémentaires demandés par le Secrétaire général,
l'Assemblée provoquerait une protestation indignée de la part

des milliers de personnes fonctionnaires ou non qui ont passé
uii contrat avec l'Organisation ; cette réaction serait d'ailleurs
parfaitenient justifiée, car les intéressés, en s'engageant ainsi,
ont pensé que l'organisation des Nations Unies était, comme
toute autre organisation civilisée, liéepar les obligations juri-
diques qu'elle a elle-même énoncées ...1).
Le statut du Tribunal administratif contient deux articles qui
appuient l'interprétation défendue par le Gouvernement de la
République française. Ce sont les articles g et 12. D'après l'arti-

cle g, ulorsqu'il y a lieu à indemnité, celle-ci est fixéepar le Tri-
bunal et versée par l'organisation des Xations Unies ». Cette
phrase fait ressortir que le versement est une obligation de toute
l'organisation et que l'Assemblée générale elle-mêm ne dispose
d'aucun pouvoir en la matière. D'après l'article 12. qui concerne
l'extension de la compétence du Tribunal à une institution spé-
cialisée,il est stipulé d'abord que a cette institution sera liéepar
les décisionsdu Tribunal »,ensuite «qu'elle sera chargée du paie-
ment de toute indemnité allouéeà un de ses fonctionnaires par le
Tribunal. i,L'expression «toute indemnité n souligne dans ce der-

nier texte l'ampleur de l'obligation en cause et le fait que le principe
ne supporte aucune exception. En tout cas, il résultedes articles 9
et 12, d'une part que le paiement est une simple opération maté-
rielle qui ne permet pas de mettre en cause l'cxistencc d'une obliga-
tion, d'autre part qu'il est la conséquence d'une obligation qui
pèse, non pas sur tel ou tel organe, mais sur l'organisation des
Nations Unies ou l'institution spécialiséeclans leur ensemble.
Ainsi que le disait le délégué de la Pologne le 7 décembre 1953
(doc. A/C. 5/SR. 425 du IO décembre,texte français, p. II), ales
décisionsdu Tribunal ont force cibligatoire pour les Nations Unies 1).

A partir du moment où l'indemnité a étéfixéepar le Tribunal
administratif, le règlement de cette indemnité est devenu une
obligation juridique pour l'organisation ou l'institution. Cette
obligation provient des dispositions formelles du statut du Tribunal,
adoptées par l'Assembléeet maintenues tant qu'elles n'ont pas été
amendées conformément à l'article II, ou des dispositioiis de
l'accord passéentre le Secrétaire général et l'institution spécialisée,
selon l'article 12 du statut.
Cette obligation ne peut faire l'objet d'un régime de défaveur
discriminatoire parmi les autres obligations des Kations Unies; elle

n'est pas d'une nature inférieure aux autres. EXPOSÉ DU GOUVERNE~IEKT FRAXÇAIS 43

Ce serait commettre une erreur juridique que de considérer
l'Assemblée généralc eomme un rouage normal dans lc mécanisme
du règlement des indemnités, parce que, au moment où il s'agit
du règlement, l'obligation juridique à la charge de l'organisatioii
'est déjà néeet ne peut plus êtreannulée sans le consentement du
bénéficiairede cette obligation. Il a étéprécédemmentindiqué que
l'Assembléegénéralen'apparaît d'ailleurs pas nécessairement dans
la procédure de règlement. Comme le disait le représentant de la
Nouvelle-Zélande le 5 décembre 1953 (doc. A/C. 5/SR. qzg du
8 décembre, texte français, p. 14). Kon ne peut déduire (du pou-
voir budgétaire de l'Assemblée)que chaque délégationest aussi

libre de voter pour ou contre le paiement d'une indemnité que de
se prononcer sur d'autres propositions d'ordre budgétaire n.
Le Gouvernement de la République française estime,en conclu-
.sion, que l'Assemblée générale a eu le pouvoir de créer le Tri-
bunal et eile a le pouvoir de le supprimer, car personne n'a de droit
acquis l'existence du Tribunal, mais que l'Assembléen'a pas le
droit de s'opposer au fonctionnement du Tribunal en mettant
obstacle à l'application de l'articleg du statut du Tribunal tant
que cet article subsiste. Dès lors qu'une obligation existe à la
&h3rgede I'Org.inis;ttion,IL, ecr~rairt:gi;iiérnlcs<tedc ilernandc-r
de-. crédiri ntiilr fairc fiice icctt~:iib1iv;itiiiiiet I'.\isernhlét.~Cnérnli
est tenue de les accorder.~ans le cas des décisionsdu Tribunal
administratif, l'Assemblée n'a pas de pouvoir d'appréciation
discrétionnaire parce que l'article 9 du statut a confiéau Tribunal
le soin de fixer l'indemnité. Le crédit doit donc correspondre
exactement à l'indemnité telle qu'elle a étéfixéepar le Tribunal.

Les seuls motifs sur lesquels l'Assembléepourrait juridiquement
se fonder pour refuser les crédits qui permettraient d'éteindre une
dette liquide et exigible, sont d'ordre strictement financier. Dans
I'hypothèse où les finances de l'organisation des Nations Unies
connaîtraient des difficultéstelles qu'il ne serait pas matériellement
possible de procéder à tous les paiements, il apparaîtrait que
1'Assembléeest habilitée à refuser au moins partiellement et
temporairement les crédits nécessaires à l'extinction de toutes les
dettes. Il n'ya pas en effet de raison de refuserd'appliquer àl'Orga-
nisation des Nations Unies le bénéfice de principes que la pratique
et la jurisprudence internationales ont dégagésà propos des dettes
conventionnelles des États. Le Gouvernement de la République
française croit toutefois absolument inutilede développerce point
qni est purement théorique, car il est notoire qu'un refus de l'As-
sembléene serait dans les présentes circonstances nullement fondé

sur des motifs financiers.3. TELEGRAM FROM THIS MINISTER FOR FOREIGN
AFFAIRS OF ECUADOR TO THE PRESIDENT OF THE
COURT

[Translation by the Registry frtheS$anislt text]

Ecuador Government has knowledge invitation Court to States
Rlembers United Nations to niake declaration on right General
Assembly refuse to give effect decisions Administratiye Tribunal.

Although my Government no1 received said invitation wisto
ratify opinion sustained in Eiglith General Assembly that General
Assembly has right modify decisions Administrative Tribunal.
Minister for Foreign Affairs.3. TÉLÉGRAMME DU MINISTRE DES AFFAIRES ÉTRAN-
GÈRES DE L'ÉQUATEUR AU PRÉSIDENT DE LA COUR

[Tradecctiott établiepar Je Grefe sur le texte en espagnol]

Gouvernement Équateur a connaissance invitation de Cour à
États Membres Nations Unies de prksenter déclaration sur droit
Assemblée généraleà refuser donner effet décisions Tribunal
administratif.Bien que mon Gouvernement n'ait pas reçu cette
invitationcrois devoir ratifier l'opiniosoutenue en Huitième
Assemblée générale déclarant que Assemblée générale a droit

modifier décisionsTribunal administratif. -MinisAffaires étran-
gères. 4. ME.\IORANDUkI
BY THE IXTERNATIOXAL LABOUR OFFICE

1. IKTRODUCTIOY

The General Assembly of the United Nations on 9 December
1953 adopted a resolution rriquesting the International Court

of Justice to give an advisory opinion on the following questions :
"(1) Having regard to the Statute of the United Nations Adminis-
trative Tribunal and to any other relevant instruments and tothe
relevant records, has the General Assembly the right on any
groundsto refuseto giveeffectto an award of compensationmade
by that Tribunal in favourofa staffmember ofthe United Nations
whose contract ofservicehas been terminated without his asse?t
(2)If the answer given by the Court to questio(1)isinthe affirma-
tive, what are the principal grounds upon which the General
-4ssemblycould lawfully exercisesucb a right?"
By letter dated 14 January 1954 the Registrar of the Court
notified the Director-General of the International Labour Office

that, in accordance with Article 66 of the Statute of the Court,
the International Labour Organization was considered by the
President as likely to be able to furnish informationon the matter.
This mernorandum prepared by the International Labour Office
is submitted in response to that notification.

Relation of the International Labour Organization to the ez9erience
of the League of Nations

Until the dissolution of the League of Nations in 1946 the
International Labour Organization, "as part of the organization
of the League", maintained the closest relations with it in staff
matters. The International Labour Office participated in the
preparatory work which led to the creation of the League of
Xations Administrative Tribunal, and the jurisdiction of that
Tribunal was available to officials of the International Labour
Office throughout its existence.
In 1946, by action of the League Assembly and the Inter-
national Labour Conference, the International Labour Organi-

zation continued to maintain the Tribunal, and, with certain
other modifications in its Statute, its name was changed to the
Administrative Tribunal of the International Labour Organi-
zation.
The International Labour Organization has always attached
the highest importance to the international character of its staff
and to the administrative procedures necessary to safeguard its >IE>lORASDU>I BY THE ISTERS.4TIOS.4L LABOUR OFFICE 47

status and independence. For over a quarter of a century its
esperience in confronting issues affecting the legal relationship
between its staff, its administration and its principal organs \vas
shared with the League of Xations. Since 1927, when the Adminis-
trative Tribunal of the League was established, the Inter-
national Labour Organization has had an unintermpted relatioii-
ship with an administrative tribunal. Noreover, following the
action by the Assembly of the Leagiie in 1946 in deciding not
to give effect to the awards of the Administrative Tribunal in
the case of 13 officials of the League and the International Labour
Office who had bcen terminated in 1939, the Governing Body
of the International Labour Office and the International Labour
Conferencc gave legislative consideration ta questions not dis-
similar to the issucs noiv before the International Court of Justice.

.As a consequence, the Statute of the Administrative Tribunal
of the International Labour Organization uTasamended by the
adoption of its prcsent Article XII which provides as follows :

"Article XII

1. In any case in ivhichthe Governing Bodyof the International
challenges adecisionof the Tribunal confirmingits jurisdiction, or
considersthat adecisionof the Tribunal isvitiated by a fundamental
fault in the procedure followed,the question of the validity of the
decisiongiven by the Tribunal shall be submitted by the Goveming
Body, for an advisory opinion,to the International Court of Justice.

2. The opinion givenby the Court shall be binding."
This Article was designed ta set at rest the perplexing difficulty

that confronted the League Assembly in 1946 and to provide
a clear path for the Goveming Body to follow in cases where
in its view the decision of the Administrative Tribunal was subject
ta challenge on grounds of lack of jurisdiction or fundamental
procedural fault. The significance of the Article lies in the fact
that such challenge is made to superior judicial authority and
is not left to the decision of a representative body.
The question of the authority of any organ of the International
Labour Organization in relation ta decisions of its Administrative
Tribunal is, of course, not before the Court. Indeed the existence
of this Article in the Statute of the Tribunal makes it unlikely
that that qiiestion would ever anse. For the grant of the right
to the Governing Body to challenge a decision of the Tribunal
and have the matter adjudicated by the highest international

court \vas tacit recognition of the principle that the guarantee
ta international officials of judicial process cari beconie illusory
if review of that process is other than judicial.4s ZIE>IORAf(DUhI BY THE ISTERXATIOSAL LABOUR OFFICE

Scope O/ lltis memorandz~ttt

In submitting this memorandum, the International Labour
Office has restricted itself to providing the Court with factual
and historical information relating to the esperience of the League
and the International Labour Organization which bears upon
the issues before it.
The material used is limited to officia1records and documents.
No effort has been maae to search out judicial or other legal
authority or analogy in national or international law, or to marshal
arguments, which tend to support one conclusion or another in
the case before the Court. In short, the International Labour
Office in this memorandum lias confined its submission to ob-

jective fact and history,\\,hich in its vie~ will be of aid to the Court
iii its present inquiry.

Snnztnary of ex9erienceof the Leagzieand the International Labozlr
Organizationrelatedto this inqui-

The history of the right of ayipeal of staff menihers of the League
of Nations and of the International Labour Office mav be divided
into separate phases.
The first covers the period from the First Session of the League
Assemblv in 1020 until the establishment of the Administrative
~ribiinaf in x9k7 .n that period al1members of the League Sccre-
tariat and of the International Labour Office appointed for a
period of five years or more had the right in cases of dismissal
to appeal to the Council of the League or the Governing Body
of the International Labour Office. This nght of appeal was exer-

cised only in one instance. The Council of the League in the Monod
case acted through a judicial committee appointed for the purpose,
ha-ving declared in advance that it would adopt its decision as
its own. The Committee founcl for the complainant and awarded
an indemnity, aiid the Council instructed the Secretary-General
to take the necessary action. So far as the records disclose, no
question was raised by the League Assembly as to the competence
of the Council to award the indemnity or the propriety of the
Secretary-General's action in making the payment to the com-
plainant out of League funds.
The second period covers the years 1927-1939, starting with
the cstablishmcnt by the League of its Administrative Tribunal
and as a consequence the withdrawal of the right of appeal to

the Couiicil of the League and the Governing Body of the Inter-
national Labour Office. In that interval, the Administrative
Tribunal heard 21 complaints, and in two of them awarded com-
pensation to the complainants. But in neither case did the Assembly
of tlie League, against whom the awards were granted, raise
question as to their payment. >lEMORANDUM BY THE INTERNATIONAL LABOUR OFFICE . 49

During this period also, in 1932, the question of the right of
the League to reduce the salaries of officials of the Secretariat,
the International Labour Office and the Registry of the Per-
manent Court of International Justice was considered by the
Supervisory Commission and the Fourth Committee. A small
committee of lawyers was asked to give a legal opinion on the
matter. In Commission and Committee discussion, as well as in
the report of the committee of lawyers, inquiry was directed to
the authority of the Administrative Tribunal to find in favour

of officials in case their salaries were altered by unilateral decision
of the Assembly ; and some opinion was expressed as to the obli-
gation of the Assembly to give effect to such awards if rendered.
The third phase covers the decisions by the Administrative
Tribunal of the League in 1946 which awarded compensation
to officials of the League and the International Labour Office
whose contracts had been terminated in 1939 as part of the
necessary cut-back of staff because of the war. The League Assem-
hly decided not to give effect to those decisions of the Tribunal
and the debate in the Finance Committee and the Assemhly
itself was concerned with the riaht and uower of the Leaaue to
take that action. -

In 1946 also the Governing Body of the International Labour
O~-ice considered whether it should eive effect to the Tribunal's
awards to the two officials of the International Labour Office
concerned. It decided that, although it should act in conformity
with the decision of the League, some provision should be made
"to secure that no difficulty may arise in the future as regards
the execution of aiiy judgrnent the Tribunal may hand down".
The final phase covers the action taken by the Governing Body
and the International Labour Conference in amending the Statute
of the Administrative Tribunal by the insertion of the Article,
quoted above, providing for review by the International Court

of Justice ;and the operation of the Tribunal, for which the Inter-
national Labour Organization assumed the responsibilities of the
League, from 1946 to the present day. During that period the
Tribunal awarded compensation to one officia1 of the Interna-
tional Labour Office. The issue was not raised as to whether the
award should be carried out.

The right of appeal of members of the Secretariat of the League

of Nations and of the staff of the International Labour Office
against the termination of their employment by dismissal was
from the outset regarded as an essential safeguard of the staff.
It existed as part of the administrative machinery of the League
since its inception.
5 XEMORASDU~I BY THE INTERKATIONAL LABOUR OFFICE
50

Origin of right of appeal

Indeed, at the first meeting of the Fourth Committee which
considered the staff and organization of the Secretariat, the Com-
mittee decided that the riglit of appeal should be expressly
provided for 1. Appeal lay to the Council of the League or the

Governing Body of the International Labour Office. It could be
brought only against a decision of dismissal and it was limited
to staff members appointed for a period of five years or more2.
The resolution granting the right of appeal adopted by the League
Assembly at its First Session on 17 December 1920 provided :

"That al1members of th(: Secretanat and of the International
Labour Officeappointed for a period of five years or more hy the
Secretary-Generalor the Director of the International Labour Office
shall, in the caseofdismissal,have the right of appeal tothe Council
or tothe GoverningBody of the International Labour Officeas the
case may be."

There was little discussion in the Assembly. In introducing the
report of the Fourth Committee to the Assembly, the Rapporteur
(Sir James Allen, New Zealanii) stated that the reason for itwas

obviqus 4.

Exercise of right of appeal to the Councid~Monod case, 1925

In the years 1920-1g27, while members of the staff had this
right of appeal, it was only used in one instance.
In January 1925, M. Monod, a former officia1of the Secretanat
of the League, fded a complaint that the Administration was

guilty of a unilateral breach of his contract of employment. The
League Council was faced with the question of the procedure
to be followed in dealing with the appeal. It first requested the
Supervisory Commission to undertake an enquiry On the basis
of its report the question was submitted "to a body of three
persons possessing judicial experience" to be designated by the

acting President of the Council after consultation with the Chair-
man of the Supervisory Commission. The Council resolution
provided that the Council "declares in advance that it will adopt'
the conclusions of this body as its own decision in the case" B.
By this action the Council recognized that the guarantee to staff

members of due process in contractual matters should take the

go and gr.N., Records of tlie 1st AsiembMeetings of Cornmittees. II. pp. 7,
Ibid.p. gr.
9 L. of K., Records of the 1st Assembly. Plenary JIeetings, pp. 663-664.
Ibid.pp. 655-656.
5 Council Resolution og hlarch 192.5.. ofN., OfliciJnoluvnal, 6th Year.
So. 4. Minutes of the Thirty-thiSession of tlie Council, p. 436.
CouncilResolutionofS June1gz5.L. ofIV. ,fliciJournal.6th Year.No. 7,
Minutes of the Tliirty-faurSession of the Cauncil, p. 858. IIEMORANDUII BY THE INTERNATIONAL LABOUR OFFICE 51
form of quasi-judicial consideration rather than decision by govern-

mental representatives.
The judicial body found for the complainant and granted an
award of £750. Their unanirnous opinion went at some length
into the facts of the case ; and the basis of their judgment \vas
not that there had been a failure on the part of the Secretary-
General to fulfd his undertaking to the complainant, but that

the interests of the cornplainant had been injuriously affected
by the action of the Secretary-General legitimately taken in the
public interest '.
The Council of the League on 5 September 1925 passed a Reso-
lution adopting the conclusions of the Committee's report and
instructing the Secretary-General to take the necessary action *.
No question was raised by the League Assembly as to the propriety

of the Secretary-General making this payrnent out of League
funds.

III. CREATION OF THE ADMINISTRATIV TRIBUNA LF THE
LEAGUE OF NATIONS

As early as 1921, the League considered the desirability of an
administrative tribunal to provide "guarantees" to the staff. In
discussion in the Fourth Committee the French delegate, Mr.
Réveillaud, stated that he recognized that there existed the right
of appeal to the Council, but asked whether "the Council, in
spite of its high authority, [was] a sufficiently independent organi-

zation to settle differences of this kind 3. Albert Thomas, Direc-
tor of the International Labour Office, pointed out that there
were certain guarantees provided by the interna1 machinery of
joint boards, but he also stressed the need of providing for the
establishment of a juridical body with functions "analogous to
those of the Conseil d'Etat in France" 4.
There appeared to be general agreement on the point in the

Fourth Committee, but nothing further was done until the Monod
appeal before the Coiincil gave impetus to the question. In 1925
the first step \vas taken when Mr. Nederbragt, tlie Rapporteur
of the Snpervisory Commission, was asked to prepare a report.

Rapporteur's Report Ig25

The Rapporteur's concept of the juridical tribunal which his
report proposed \vas of a body which would ensure to officiais

1 L. of N., Oficial Jourtlal, 6th Y10,Minutes of the Thirty-fifth Session
of the Couneil. pp. 1441-Iq47.
1 Ibid., p1338.
L. ofX..Records of the 2ndAssemblv . eetin~s of Cornmittees,p.71.
' Ibid., pp71-72.
l.L.0.cument C.C. 196. English translatiof the passages quoted is by the MEMORAKDUMBY THE INTERNATIONAL LABOUR OFFICE
52
"the firm conviction of safety and security emanating from justice".
It would provide "a judge for every dispute" and prevent one
of the parties from being a "judge in his own case". It would
"reduce to its proper limits the category of acts of 'government'
or 'sovereignty' which are not subject to any jurisdiction". Its
judgments would be final.
The Rapporteur discarded the concept of an advisory body.
"An advisory body", the report stated, "dependent or independent,
may be useful but can never 1-eplacea body empowered to give

final decisions." The report stressed the notion that the establish-
ment of an administrative tribunal would increase rather than
diminish the authority and position of the administration. The
report said :
"1" Justice is above us all, and we are al1subject to it, whoever
we may be, and whatever oiir position and functions may be ; z0
, nothing brings greater respect and authority to men, their position
and functions, than the firm resolve to adhere so strictly to the
principles of justice and, accordingly, to establishedules of law,
that they are ready, in case of doubt or dispute, to submit the
question at issue to an impartial judge and to comply with his
decision....y
The report outlined the general ideas for a tribunal; and was
the foundation upon which the draft statute was prepared.

Legislative lzistory of the Statnte of the Administrative Tribnnal
of the League of Nations

The examination of the legislative liistory of the Statute of
the Tribunal in this memorandum is confined to those articles
deemed to be relevant to the issues before the Court ; namely
those dealing with (1)the finality of the decisions of the Tribunal ;
(2) the execution of its judgnients ;and (3) the determination
of its competence.
Between February 1926 and February 1927, a series of drafts
of a statute was considered by the Supervisory Commission of
the League. The first draft l provided that the "decisions of the
Tribunal shall bind the League and the officia1without appeal".
It also provided that "the budget of the Administr-ion to which
the complainant belongs shall bear ...the amount of any com-
pensation or costs awarded to the complainant". It contained
no provision providing for the determination of the competence
of the Tribunal in case of dispute as to its jurisdiction.
During a discussion of the first draft by the Supervisory Com-
mission, question was raised whether the right of appeal to the
Council of the League should be maintained. If it were, klr. Réveil-
laud enquired whether this meant that the Council of the League

1Document C.C. zoo. >lE?lORANDUM BY THE INTERNATIONAL LABOUR OFFICE
j3
and the Governing Body of the International Labour Office were

to be regarded as superior to the Tribunal. He stated that in his
view this right of appeal should be abolished, seeing that the
right of appeal to the Tribunal already provided sufficient guar-
antees for complainants 1. Professor Attolico, Assistant Secretary-
General, explained that the authors of the draft had not eliminated
the right of appeal to the Council or the Governing Body only
from a desire to be as liberal as possible. In his vieai it certainly

did not appear to be necessary 2. The Chairman, Mr. Osusky,
stated that it would be preferable to relieve the Council of the
essentially unimportant task of settling differences between the
League and its staff 3. Finally, in connection with the discussion
of the remedies which the Tribunal could grant, MI. Butler,
Deputy-Director of the International Labour Office, remarked
that the decisions of the Tribunal would be binding on the com-

petent authorities of the organizations of the League 4.
The second preliminary draft omitted any reference to the
right of appeal to the Council of the League or the Goveming
Body. This draft still provided that the decisions of the Tribunal
should be "final and without appeai", but a new paragraph was
added which provided for "an application for revision by the

Tribunal of a decision ....based only upon a discovery of some
fact of such a nature as to be a decisive factor and unknown when
the judgment was given". Another article provided that "any
compensation awarded by the Tribunal shall be chargeable to
the budget of the Administration concerned". Finally, a new
article was added which provided that "al1 questions as to the
competence of the Tribunal in any particular case shall be decided
by it".

The third draft of the Statute, submitted to the Supervisory
Commission jointly by the League Secretariat and the Inter-
national Labour Office s, retaiiied the provision that the decisions
of the Tribunal shonld be final and witbout appeal but elimiiiated
the procedure for revision on newly-discovered evidence as undesir-
able in the interests of finality and avoidance of vexatious proceed-

ings. No change was made in the provision that compensation
should be chargeable to the budget of the Administration concerned
or tbat questions relating to the competence of the Tribunal
should be decided by it.
A draft of a proposed report containing the Statute approved
by the Supervisory Commission was circulated by the Secretary-

1 Supervisory Commission, Provisional Minutes othe 18th Session,Fourth
Sittingp. 56.
P Ibid.
3 Ibid., p. 57.
"ocurnent C.C.. 213.
Document C.C.222.54 3IEhIORASDU31 BY THE INTERSATIOS.4L LABOUR OFFICE

General on 5 August 1926 l. No changes in substaiice \vere made
and the statute and draft report \vere finally adopted by the
Commission in February 1927. The only question raised in Com-
mission discussion related to the right of appeal to the Council,
which the Commission proposed should be rescinded. Mr. Neder-

bragt considered the hypothesis of an officia1 invoking his right
of appeal to the Council uniier the -4ssembly Resolution of
17 Decemher 1920. In such aise he suggested that the official
would be within his rights on the ground that that Resolution
could be considered as an integral part of his contract of employ-
ment. >Ir. Réveillaud responded by saying he did not think the
case would arise. There was no further discussion on the point

Reportof theSuperuisory CoiitmzssionproposittgStatuteof Tribz~izal

The report of the Supervisory Commission commented on the
establishment of the proposed Tribunal in the following terms 3 :

"Reasoitsfortheproposedmeasure

The establishment of a tribunal such as is now proposed is
expected not merely to remove a grievance which may he felt by
the staff of the Secretariat and of the International Labour Office.
but also to be in the interest of the successful administration of
these two offices. The international status of the Lea~ue vrevents
officialsfrom bringing actions in the ordinaq courts to enforce the
terms of their appointments. It is not, however, satisfactory that a
class of employees amounting to several hundreds of persons and
engaged on terms which are iiecessarily complicated and may give
rise to disputes as to their exact legal effect, should have no possi-
biiity of bnnging questions as to their rights to the decision of a
judicial body. It is equally uniatisfactory forthe administrations to
he both judge and party in any dispute as to the legal rights of their
officials, or for such disputes to he referred to the Council or the
Governing Body of the International Labour Office. The special
position ofthe Leaguemakes it difficultto referclaimshy its officialsto
the jurisdiction of nationalcourts. The remaining possihility, namely
the reference of such disputes to a body constituted ad hoc,although
it has been adopted in one case, is open to objections on many
grounds and does not furnisli a solution for the general problem.

Jurisdiction O/ theproposedTribunal

...the proposed Tribunal is to be exclusively a judicial body set
up to determine the legalrights of officialson stnctly legalgrounds ....
The function of the proposed Tribunal willbe to pronounce finally
upon any allegation that the administration has refused to give an
-
Document C.C. 224.
2Supervisorv Commission, Provisional AIinutesofthe ~2nd Session, Fourth
sitting: p. 50..
3L. of S., OficiolJoarr>al,Special Supplement, So. 58, Records of the 8th
Asaembly, Meetings of Cornmittees. Rliiiutes of the Fourth Cammitte250-257. BIE>lORAKDUAl BY THE ISTERSATIOSAL LABOUR OFFICE jj

official treatment to which he was legally entitled, or has treated
the Tribunal willbe the final authority for the interpretation of the.
terms of an officiai'sappointment and the regulations applicable to
the officia...."

The report \vent on to Say1 : "Xo provision for the revision
of judgments of the Tribunal is inserted in the statute. It is
considered that, in the interests of finality and of the avoidance

of vexatious proceediiigs, the Tribunal's judgments should be
final and without appeal as is provided in Article VI, paragraph 1."
In respect to budgetary provision for the esecution of awards
of compensation granted by the Tribunal, the Commission's
report stated :

"Provision is already made annually in the League Budget to
cover compensation payable when an officialmeets with an accident
or incurs a disease in the course and in consequence of his service.
It does not seem to the Supervisory Commission that it wonld be
possible or appropriate to calculate and insert in the budget the
amount likely to be required to pay iiwards of compensation made
by the Tribunal in respect of breaches of officials'nghts. The Com-
mission recommends that a nominal amount of 1.000 francs be
inserted in the budgets of the Secretariat and the International
Labour Office so as to provide an item to which such compensation
can be charged if it becomes payable, and that any sum actually
required in excess of this norniiial vote be provided by a transfer
under the usual guarantees."
Thus the report. made clear that it was not envisaged that
awards of the Tribunal would be snbject to review in the exercise

of budgetary authority, but that they would be paid out of the
nominal credit inserted in the budget, or by intra-budgetary
transfer.
Finally, the report referred to the right of appeal to the Council
or to the Goveming Body of the International Labour Office
granted by the Resolution adopted on 17 December 1920, and
recommended "that the establishment of the proposed Tribunal
should have as its conçequence the rescinding of this resolution

Final action establishing the Admi?iistrative Tribzmnl

the provisional establishment of the Tribunal as an experiment.
The Sub-Committee's report was adopted by the Fourth Corn- .
mittee of the Assembly4 and on 26 September 1927 the Eighth

' Ibid.p. 254.
Vbid...y. 255.
Ibid., pp. 35-36 3lE~lORAXDUli BY THE INTERNATIONAL LABOUR OFFICE
56
Session of the Assembly passed a Resolution adopting the Statute
establishing the Administrative Tribunal, abrogating the nght of

appeal to the Council, and providing that the Assembly of 1931
\r.ould "consider in the light of the experience gained \vhether
there is reason to abrogate or amend the said Statute l".
In ~gzg a committee \vas established by the Tenth Assembly
to enquire into the organization of the Secretariat, the Inter-
national Labour Office and the Registry of the Permanent Court

of International Justice %. In its report the Committee noted with
approval the existence, composition and jurisdiction of the Tri-
bunal as one of the safeguards enjoyed by the staff for the proper
application of its tems of appointment and the regulations to
which it is subject. It pointed out that, in effecting the transition

from the former system to the iiew system \'hich it recommended,
the principle that "no acquired rights must in any way be pre-
judiced" should be observed. "If any doubt anses as to the nature
and extent of the acquired rights, the matter should be decided
by the Administrative Tribunal =."
On the basis of a report of the Supervisory Commission4, the

Assembly of the League in 1931 confirmed the Statute without
amendment, and the Tribunal thereby became a permanent body
of the League 5.

IV. CONSIDERATIO BYN THE LEAGUE OF ITS LEGAL RIGHT TO
REDUCE SALARIES OF OFFICIALS UNILATERALLY

In 1932, in view of prevailing cconomic conditions, consider-
ation was given by the League to the possihility of making salary
reductions as an economy measure. The question \vas considered

in the first instance as a legal one, i.e. whether the Assembly,
by unilateral action, could legally reduce staff salaries.This question
\vas first referred to the Supervisory Commissioq @. The Com-
mission took the view that it \vas not north the financial saving
"to disturb the staff and impair the sense of security and stability

that earlier Assemblies sought to give them [or] to enter upon
prolonged legal controversies as to whether the Assembly has

' L. ofX., Oncial Journal. Special Supplement No54.Records of the 8th
Assembly, Plenary Meetings, pp. 478 an201.
L. ofN.. Official Journal, Special SuppleXo.t75, Records ofthe 10th
Asçembly. Plenary Meetings. pp. 142-144. r66-167, 468-470.
L. of S.. Oficinl Journal, Special SuppleXo.t88. Records ofthe 11th
Asçemhly, Meetings of Committees. Minuteof the Fourth Committee, p. 307.
' L. of N., Official Journal, Specivl Supplemen97, Recordsof the rzth
Assembly, Illeetingç of Committees. Minutes of the Fourth Committee, p. Irz.
qbid., p. 43. aL. ofN., Officia1Journal. Special Supplement No. 93, Records
of the 12th Assembly, Plenary bleetiiigs152.
L. of N.. Official Jouvnal, 13th Year, No. 7. %ofthe 67th Session of
the Council, pp. 1237-1238. MElllORANDUllI BY THE INTERNATIONAL LABOUR OFFICE
57
power on its own authority to alter contracts which appear to
belong to the realm of private law.... '".

Discussion in the Fourth Committee of the Assemhly touched
not only upon the legal right of the Assemhly unilaterally to
reduce salaries, but also upon the power and authority of the
Assembly in relation to judgments of the Administrative Tribunal
of the League. The hypothesis on which discussion revolved was

(1) that the Assembly, by legislative action, reduced the salaries
of permanent officials; (2) that officials so affected appealed to
the Administrative Tribunal ; and (3) that the Administrative
Tribunal rendered judgment in their favour.
One point of views was that the League could set the judg-
ment of the Tribunal aside ; it undoubtedly had the power, if

not the right, to do so ; but to exercise that power would be
contrary to the principles on which the Lcague's strengthwas
based ; it would be an opportunistic measure and the margin
between opportunism and injustice was small.
A second point of view was that the legal position of League
officials was most precarious ; their rights were based on a kind
of gentleman's agreement ; the Administrative Tribunal had very

limited powers and the only safeguard of officials lay in their
trust in the faimess of the League.
A third approach "as that the Administrative Tribunal was
not an illusory safeguard ; it had absolute and complete power
to statethe law, and from this point of view there was no difference
between the Administrative Tribunal and the Councils of State

or Supreme Courts in a number of countries. Although in theory
the League could refuse the necessary vote for the execution of
an award by the Administrative Tribunal, national parliaments
had the same theoretical power to take the same position with
regard to the judgments of the Councils of State or the Supreme

Courts. In the League, just as much as in a national State, an
assumption of that kind would be so disgraceful as to imply a
state of anarchy.
As a result of this discussion, a proposal was adopted that
before taking any action the Committee should receive the opinion
of a Committee of Jurists O.
The debate on this question in the Fourth Committee appears

to be of such pertinence to the issues presently before the Court
that the relevant excerpts therefrom are attached to this memo-
randum as Annex 1.

Assemblyf Meetingsiof Cornmittees,Minute?pof theoFourth Committee,tp. 129.
Ibid.. pp.11fi.
a Ibid., pII.
Ibid., p15.
Ibid., p. 34.
Vbid.. p. 51.58 MELTORASDUJI BY THE INTERSACIOSAL LABOUR OFFICE

The RePovt oj the Cornmitteeoj JZLY~S~S-1932

Pursuant to the decision of the Fourth Committee, the com-
mittee of jurists was established and on 8 October 1952 submitted
its report l.
The jurists were unanimously of the opinion that the League
Assembly did not have the right to reduce the salaries of the
Secretariat, the International Labour Office or the Registry of
the Court, unless such a right had been expressly recognized in

the contracts of appointment. Their opinion was based primarily
on the ground that the salary of each officia1 was individually
fixed by an agreement between him and the organization he
served ; that his right to his salary rested upon a contract ; and
that one party cannot alter a contract without the consent of
the other.
Having reached the conclusion that officials possess contractual

rights in regard to the amount of their salaries, the jurists then
considered whether the Assembly nevertheless possessed the right
to derogate therefrom in the exercise of its budgetary authority.
The jurists answered this question in the negative. Their reasoning
was based on the measures ttiken by the Assembly to ensure
respect for the legal rights of its officials as evidenced by the
establishment of the Administrative Tribunal. Its Statute clearly

showed that it was the conception of the League Assembly that
it could not use its budgetary authority to nuliify an award pf
the Administrative TribunaI. The report stated :
"The Assembly, moreover, has taken rneasures to ensure that the
rights of officialsarerespectecl.This was the object with which, by
a Resolution of September26th. 1927i, t adoptedthe Statute setting
up an Administrative Tribunal having jurisdiction to hear com-

plaints alleging non-observance of the terms of appointments of
officials(Article2).Article IO of this Statute shows clearly that, in
the conception of the Assembly, its budgetary authority is not to
serve the purpose of defeating the rights of officials. The Article
States that 'any compensation awarded by the Tribunal shall be
chargeable to the budget of the administration concerned'. In fact,
since the Tribunal was set up, the budget of each organization con-
cerned has contained an item relating to such compensation."
:
The opinion concluded with the foliowing paragraph
"If the Assemblyreduced the salaries of officials,the latter would
have the right to have recoiirse to the Administrative Tribunal.
The considerations set out àbove lead the Committee to think that
the Tribunal would decide in favour of the officials.As a result of
such a decision,and in virtue of Article IO of the Tribunal's Statute,

Mr.IBasdevant,6&Ir. Max Huber,sS;irWilliammMalkin, Rlr. Pedroso. Andersen,
aIbid.,p. 208. ME>IORANDU>I BY THE 1XTERN.kTIOS.kL LABOUR OFFICZ
59
the Assembly wouldthen require to make in the next budget pro-
vision for paying compensation.
The Cornmittee's opinionis unanimous."

The Fourth Committee of the Assembly took note of the opinion
given by the jurists and accepted the view that the Assembly

was not entitled to modify unilaterally the contracts entered into
with its present officials '.
Early in 1932, uew procedures of appointment were adopted
by the League and provisions were inserted in the Staff Regu-
lations to the effect tbat appointments made after 15 October
1932 were subject to modification by the Assembly 2.

V. EXPERIENCE OF THE ADI\IIXISTRATIVT ERIBUNAL OF THE
LEAGUE OF NATIOKS, 1929-1946

During the period from 1929 to 1946. the -4dministrative Tri-
bunal of the League conçidered 37 complaints, of which 13,decided
in 1946, related to the termination of officials of the League and
of the International Labour Office after the outbreak of the war.
Until the decisions in 1946, no question was raised in the

League Assembly in respect to the payment of compensation
awarded by the Tribunal3. Nor did the Tribunal itself in any
of the cases that came before it give consideration ta the question
of the binding effect of its judgments or the execution of its
awards.

Termination of oficials-1939
The outbreak of the Second World \Var created conditions

which raised again the question of the right of the League Assembly
to refuse to give effect to the judgments of the Administrative
Tribunal.
In December 1939, the League Assembly took steps to make
the necessary retrenchment in the staff of the League Secretariat
and the International Labour Office. Large staffs were no longer

necessary and steps had to be takeu for a reduction in force by
the fairest arrangements possible in the circumstances. Officiais
were offered the choice of resigning or of having their appoint-
ments suspended. If they resigned they would be given a sum
amonnting to either six months' or one year's salary according
to their previous length of service. If they elected suspension
they would be given an ex grntia payment of three months' salary

Ibid.pp. 72-73:
Article30bis oftliStaff Regulationofthe League: Articl16 a oftheStaff
Regulations of tliI.L.O.
8 In onlytii.0 the zqcases-Schurnnnliv.SecrefaviaO/tiie LeagzO/iVatiolzs.
decided in AIarc1934, andPerrassv. SacretariO/the League of~?J.ati.ecided
in hlay 1gj5-did the Courtaward compensation to the complainant.60 MEMORANDUM BY THE INTERNATIONAL LABOUR OFFICE

and would retain their membership in the Pension Fund to which
the League would continue ta pay both its contribution and that
of the officia1during the period of suspension '.

In addition to these arrangements, provision had to be made
for those officials whose services were no longer needed and who
would not voluntarily consent to either suspension or resignation.
To take care of such cases, the Assembly amended the Staff Regu-
lations so as to reduce the period of notice of termination of
permanent officials, or paymerit of compensation in lieu of such
notice, from six months to one month. The amendments also

provided that the payment of indemnity for termination of
contract should be made in instalments over a four-year period
instead of in a lump sum =.
The great preponderance of the officials concerned voluiitarily
accepted one or the other of the alternative arrangements offered
to them. However, in the case of sorne officials, the Secretary-

General was forced to terminate their contracts and apply the
amended Staff Regulations. Eleven officials of the League and
t~o of the International Laboiir Office whose contracts had been
so terminated brought complaints before the Administrative
Tribunal aueging that the termination of their contracts in accord-
ance with the provisions of the December 1939 amendments was
in violation of their contracts of employment. The complainants

asserted that,as their contracts were entered into prior to 15 Octo-
ber 1932 S, under the Staff Regulations they had acquired rights
which could not be modified by decision of the Assembly or the
Goveming Body without their consent.
The representative of the Secretary-General of the League of
Nations did not present any defence on the merits. He confined

his defence to contesting the competence of the Administrative
Tribunal on the ground that legislative decisions of the Assembly,
even those affecting the position of the staff, were not subject
to its scrutiny. The representative of the Director of the Inter-
national Labour Officepointed out that the International Labour
Organization in 1939 had actetl in pursuance of a decision of the
Assembly which, in view of its financial nature, it was obliged

to apply.
Judgments of the Administvative Tribunad1gq6

On 26 February 1946, the Administrative Tribunal in a series
of 13 judgments, which are in practically identical terms, found

' L. of N., Oficial Journal,Special Supplement, No. 194, Records ofthe
20th (Conclusion) and zrst Sessions of the Assembly,245.
L. of N., Recordof the zolh Asrembly, Plenary Meetings.45.
1932weresubject to modifications mabytdecision of tAssemblyt(Articl30bis
of Staff Regulations of the Lea:Article 1aof Staff Regulatioofthe I.L.O.).
' Articles18 and 73 ofthe LeagueStaff Regulations and Article19 and 83
of the I.L.O. Staff Regulations.for the complainants. The text of the judgment in the case of
Zobbino v. international Labour Officeis attached to this memo-
raidum as Annex II. ,
In that case the Tribunal held that the provisions of Article II,

paragraph I, of its Statute providing for jurisdiction relating
to contracts of emplovment "accord a plenary jurisdiction in
matters relating to fhedcarrying out of allAcontr~ctÜalobligations
undertaken by the International Labour Office with regard to
its officials without any distinctio~i heing drawn betweeil acts
of the Assembly itself and of agents to whom it delegates authority
over staff". By the adoption of the Statute of the Tribunal, the
League Assemhly "itself has authoritatively prescribed the juns-

diction of the Tribunal, thus pledging to its staff a guarantee of
justice that was henceforward irrevocahle".
The judgment pointed out that this position had been confirmed
by the Committee of Jurists in 1932 l. It then stated that the
Staff Regulations "in their form as it was subsisting at the date
of thc contract of employment of the Applicant, formed a part
of this contract", and that the Applicant had "an acquired right
to which amendments of the Regulations ....could not be applied
without mutual agreement".

The Tribunal then held that it was "not accepted that the
Assembly by Resolution of 14 December 1939 sought to infringe
acquired rights without stating the same expressis uerbis", and
that the text of the Resolution adopted by the Assembly did
not "even refer to Article 97 of the Staff Regulations safeguarding
the sanctity of acquired rights".
On the merits, the judgment concluded that the application
of the Resolution of the Assembly of 14 December 1939 "wrong-

fully deprived" the Applicant of the benefit of her acquired rights ;
that force of circumstance had been pleaded "without ground" ;
and that "it cannot be accepted that the League of Nations was
not in a position to honour the acquired rights of its staff".

Question of 9ayment of the awards-1946
Before taking action in respect to the payment of the awards 2,

the Acting Secretary-General consulted the Supervisory Com-
mission.
The Commission advised the administrations both of the League
and the International Labour Office to take no action pending
consideration by the League Assembly and directed that the
amount of the awards be placed in a special suspense account.
In respect to the judgments of the Tribunal the report of the
Supervisory Commission stated :

' See pp. 38-39 supra.
a Their totawas 85.000 Swiss francs.
' L. of N., Oficial Jouniul, Special SupplementNo. 194, Recordsof the
20th (Conclusion) aiid zrst Sessiofsthe Assembly, p.162.62 MEIIORANDUY BY THE ISTERNATIONAL LABOUR OFFICE

"The Supervisory Commission, on whose proposal the amend-
ments in question were adopted by the 1939Assembly, desires to
confirm that it was the undoubted intention of the Assembly that
the decisions therein embodied should apply to al1 officialsof the
League and not only to those whose contracts expressly reserved
the possibility of their modification by the Assembly.The Secretary-
General and the Director of the International Labour Office, in
applying the decisionsto the complainants, have therefore correctly
interpreted the Assembly resolution.
. . . . . . . . . . . . . . . . . . . . . . .
As an acceptance of the findings of the Administrative Tribunal
would put its decision above the authority of the Assembly, the
Supervisory Commissioncouldnot take the responsibility ofadvising
the Acting Secretary-Generaland the Acting Director of the Inter-
national Labour Officeto apyilythe judgments ofthe Administrative
Tribunal."

The League Assembly met in April 1946 and the matter was
considered by the Second (Finance) Committee which referred it
to a sub-committee of seven '.

Conclz~sioiz s/ tlzeSz~b-Committee O/ the Finance Committee

In its report 2,the Sub-Coinmittee, after reviewing the facts,
presented arguments leading to three basic conclusions :
(1) that it mas not open to the Administrative Tribunal to
question the validity of a legislative act of the Assembly, namely

its Resolution of 14 December 1939 ;
(2) that the Tribunal's interpretation that the Assembly's Reso-
lution was intended to apply to a limited class of officials only
\vas "manifestly contrary to the facts" ; and

(3) that it was within the power of the Assembly, "by a legis-
lative resolution, to declare that the awards made by the Tribunal
are invalid and are of no effect both because they sought to set
aside the Assembly's legislative act and because of their mistaken
conclusion as to the intention of that act".

In arriving at the latter conclusion, the Sub-Committee pointed
out that it had by "no means ignored" the opinion of the Com-
mittee of Jurists appointed in 1932. That opinion was distinguished,
however, on the ground that it dealt with the question whether
the League could derogate from existing contracts in the exercise
of budgetary authority rather than in that of a legislative power,
In the Sub-Committee's view, the jurists' opinion was not intended
to express a final conclusion upon the question whether the League
could, by a proper legislative act, derogate from private con-~

1Ibid.p.. 123.
?Ibid. .p. 361-263. IlEMORANDUhI BY THE INTERNATIONA~ LABOUR OFFICE 63

tractual rights. "If it was", the report stated, "we are unable
to agree with it 1."
The Sub-Committcc recalled the exigencies of the situation in
1939 and the realistic necessity for the League and the Inter-
national Labour Organization to reduce their staffs to an essential
nucleus. Moreovcr, it pointed out an obvious inequity, if the
awards of the Tribunal were paid, between the complainants,

who had not accepted the arrangements offcrcd in 1939 and had
appealed against them, and the "great body" of officials who had
accepted those arrangements and who thcreby "willingly sub-
mitted to drastic infringements of their rights and interests".
From an ethical point of view, the Sub-Committee said, "it is
difficult to think that their right ta consideration is diminished
by the fact that they showed themselves willing to acquiesce,
if not to co-operate, in the decision which the Assembly took".
The report of the Sub-Committee was adopted by the Finance
Committee by a vote of 16 in favour, 8 against, with 5 absten-
tions 2.
The report of the Finance Committee to the Assembly included

the full text of its Sub-Committce's report aiid summarized the
arguments made in Committce discussion for and against the
conclusions that were reached. Accordingly, it is deemed of
sufficientinterest to the Court to be set forth below in full text.
In addition, the record of the meeting of the Finance Committee
which discussed the Sub-Committee's report is attached to this
memorandum as Annex III.

Report of the Finance Cornmittee

"Jndgments pronounceciby theAdmi?zislrativeTribunal o?zFebruary26th.
1946,concerning certainoficials dzschargedin applicatiof theemergency
measnresadoptedby th AssembLyin 1939

In a series of thirteen judgments pronounced on February 26th,
1946, the Administrative Tribunal found that the Administrations
of the Secretariat and the International Labour Officewere not
entitled to apply to the thirteen ex-officialswho had appealed to it
the amendments to Articles 18and 73of the Staff Regulationsof the
Secretariat of the Leagueof Nations and to Articles9and 83 of the
Staff Regulations of the International Labour Officeprovided forby
the AssemblyResolution of Decemher ~qth,1939,by whichamend-
ments the period of notice of termination of appointment in the
case of permanent officials was reduced from sixmonths to one
month and the payment of the compensation for termination of
appointment due to such officialswas spread over four years.

'Ibid.p..263.
Ibid.p.. 133.
fbid.p,. 261.64 SIEDIORANDUX BY THE INTERNATIONAL LABOUR OFFICE

the Secretary-General retraced the history of the question and set
out and gave a succinct analysis of one of the thirteen judgments-
the terms of al1of which were practically identical.
The Committee also had hefore it a Report of the Supervisory
Commission (document A.14.1946.X-Chapter C), which contains
the following conclusion :

'Asan acceptance ofthe findings ofthe Administrative Tribunal
would put its decision ahove the authority of the Assembly, the
Supervisory Commission could not take the responsihility of
advising the Acting Secretary-General and the Acting Director
of the International Labour Officeto apply the judgments of the
Administrative Tribunal. It has accordingly advised the two
Administrations to take no action on them pending consideration
of the whole question by the Assembly.'
In order ta elucidate this question, the Finance Committee
appointed a Sub-Committee, whose report reads as follows :

'The Sub-Committee appointed by the Finance Committee of
the Assembly has taken under consideration the claims to compen-
sation made by certain officials who were discharged from their
appointments as a result of the emergency measures taken by the
Assembly of the League in December 1939 and in whose favour
awards have been made by the Administrative Tribunal. The
relevant facts and the history of the matter are set out in document
A. 16. 1oa6 and it is not Dro~osedto reca~itulate them in detail.

liad hithe20 been engaged and the imperative necessity for haking
drastic reductions in expenditure, the Assembly, on December 14th.
Staff Regulations so as to permit the discharge of officials of the
League subject to a shorter period of notice tlian had previously
been prescribed. The great niajority of the officials, either because
they believed tliat the Assembly had the legal power so to alter the
terms of their employment or because they loyally and patriotically
accepted the decision taken as being in the interest of the League in
the special circumstances existing at the time, did not question the
validity of the action taken. Thirteen officials, however, claimed
before the Administrative Tribunal that they had been discharged
with less than the proper notice and these claims thc Tribunal has
now upheld, awarding sums representing what the officials would
have earned had the longer period of notice been given, appareutly
regardless of the question wliether the dismissed officials hadmiti-
gated their damages by obtaining other employment in the mean-
time, as no donbt some did. The Administrative Tribunal hased
itself on the viewla Ithat the Assemblv could not have intended its

power to alter a confract into whiih it had entered &th a servant.to a private individual employed by it. On the contrary, we think
it necessary for the proper discharge of the functions of a world
organization of States that it should possess a power if necessary to
set aside the vested rights of pnvate individuals employed in its
administration. Onlv an excejsivelv static leeal view would iustifv
tlic cuiiclusioiirhnt ihcI.engii<.\vasicttered inYitsuwii:idiniiiiiir;iri\ï:
org;.iiiïntiuiby thc riiles of rhc pri\,:,r1..iof coii[r,i:t :il)l~li~.il>lt,
to rlic e~iii>lo\.es~fn tr.i(liiic ijr riiriiiiirrci:il iiiiilcrt:ikinc I<eliitioiis
connecteci wkh public empïoyment in the service of Yhe League
necessarily pre-suppose the acceptance of these priiiciples. They are
their ?t(rlzrralinegotii. These considerations were indeed cogently
expressed in the Report of a Committee of Jurists presented to the
Council in 1925 on the case of an officialwho claimed to have been
wrongfully dismissed (Oficial Jounzal, Sixth Year, Xo. IO, page
1441 ;see page 1443).
'4. But, whilst we consider that the matter ought essentiaiiy to
be approached from the point of view of what is politic and necessary
as a matter of public administration, we do not think that our con-
clusions lack a fim basis in the first principles of law. In saying
this, we have hy no means igiiored the opinion expressed hy certain.
eminent jurists in 1932and referred to on page 3 of document A. 16.
1946.Contrary to what happened in 1939,the Assembly at that time
was not seeking to set aside contractual rights which its officials.
possessed. It is sufficient to Say of the opinion then given that it.
proceeded largely upon an examination of the question whetherthe
League could derogate from existing contracts in the exercise of a.
budgetary authority rather than in that of a legislative power. In
our view, the opinion was not intended to express a final conclusion
upon the question whether the League could, by a roper legislative~
act, derogate from private contractual rights. 1Pit was, \ve are
unahle to agree with it.
'5. The Statute of the Administrative Tribunal expressly reserves
the Assemhly's power to aholish the Tribunal, but in the absence of
this express-provision, those who contend that the League has no.
power to alter contracts by unilaterd action would, we think, be
led to argue that the League, having once established the Tribunal.
could not abolish it witli effect on existinrr contracts. We entertain
no doubt that, just as in 1927the Assembïy did abolish, apparently
without question, the right of appeal to the Council of the League
which eml>loyeespreviiusly poiiessed, so in 1939 the Assembly
could have abolished the Tribunal. Had this course been taken, the
dismisscd officialswould have had no court or tribunal hefore which
they could have questioned the legdity of their dismissal. Nor does.
the fact that the Tribunal remains significantly alter the position.
Xo outside body exists which can enforce the decision of the Tn-
bunal against the Assembly, and this is a not irrelevant consideration,
in deciding whether the Assembly is sovereign in this matter and
whether the dismissed officialshave any right against it. By statu-
tory provision and diplomatic usage, no remedy is available
against the League ; where, then, is the official'sright against it ?
Ubi jus, ibi uemedizcm,and the:absence of any remedy in the circum-
stances of this case here leads to the conclusion that there is no ZLEILORASDUII BY THE INTERSATIOSAL LABOUR OFFICE
67
legal right. If only an ethical right is claimed, the protection against
its abuse is not a legal but a political one lying in the hands of the
States hlembers of the Lea~ue. Sovereiantv is a question of fact
from which a conclusion of law is drawn _it irises from the presence
or absence of ovesriding and controlling powers. In the absence of
such powers, the legal Fonclusion is thaï sovereignty exists ;and,
although the use of the term sovereignty in connection witli the
present matter is not entirely apt, we think it would be an act of
juristic purism to doubt that the supremacy of the League is an
inherent incident implicit in its contractual relationships with its
staff. \Ve therefore conclude that it was not open to the Adminis-
trative Tribunal to question the validity of the Assembly's Reso-
lution of December 14th. 1939. Its only duty was to give effect to it.
'6. We are entirely unable to accept the Tribunal's interpretation
that the Assembly's Resolution was intended to apply to a limited
class of officialsonly. This view seems to he manifestly contrary to
the facts. Although there is no ordinary appeal from the Tribunal's
decision, we think that it is within the power of the Assembly, which
can best interpret its own decisions, by a legislative resolution, to
declare that the awards made by the Tribunal are invalid and are
of no effect both because the Gught to set aside the Assembly's
legislative act and because oYtheir mistaken conclusion as to the
intention of that act.

'7. We think it right to add that, ifeffect was given to the awards
of the Tribunal, the other officials who accepted their dismissal in
loyalty to the League and, no doubt, in the belief that al1officials
would be treated alike. are entitled to consideration. It is tme that
rhc rinir iiitliiiiihisli 'tlie).coiild proieciir.a1cg;ilcl:iim (assuniiiig
,iicli:iclaini exisis)11.6 loiig since ]rsscd. )loreovcr, tlie ;wsessmenr
of cuinucns3tion iiiiridi\*i<licrisesrniclit bc ùifliciilt. fuiii niim-
ber of ihem the earlier termination ofthei exployment suited the
convenience of the officialsconcerned. But, from an ethical point of
view, it is difficiilt to think that their right to consideration is
diminished by the fact that they showed themselves willing to
acquiesce, if not to CO-operate,in the decision which the Assembly
took.
'S. In Our view, however, nll the claims should be rejected, and
the Assembly may be fortified in taking this course not only hy the
fact that-to their crcdit-the great body of its officials concurred
in the propriety of what was done at the time, but also iiithe know-
ledge that, in the grave emergency with which the world was faced
in 1939. vast multitudes of people \roluntarily made or willingly
subrnitted to drastic infriiigements of their rights and interests. The
League of Xations \vas entitled to expect from all, and in fact
received from the vat majority of its officials. the same devotion~
and self-sacrificein the interests of the world community.

'g. We should add tliat we have not allowed ourselves to be
influenced in the conclusion at which we have arrixzedby the serious
effect on the League's budgetary position which the application of
the Tribunal's decision and its extension to otlier officials would
inevitably involve.68 ME~IORASDUAI BY THE ISTERNATIONAL LABOUR OFFICE

'IO. In view, however, of the fact that we do not doubt that the
claims were made in good faith and involved a difficult and impor-
tant matter, we think it.would be proper to make an ez gratinpay-
ment in respect of the claimants' legal costs.'

Minority vim
Several delegates were unable to accept the conclusions of the
Sub-Committee or ta agree with various arguments and conceptions
set forth in its report. They pointed out, in particular, that it
appeared to them to be absolutely contrary to the notion of la\v
and the sovereignty of law that the Assembly, the organ of one of
the parties ta the dispute. should have the right to oppose the ese-
cution of a judgment of u-hich it didnot approve. They considered
that the question \vas not whether the Assembly was competent ta
render operative a judgment of the Administrative Tribunal, but
whether the Assembly \vas competent to prevent the execution of
a judgment ofthe Administrative Tribunal, when the said judgment
had been rendered in a matter in respect of which the competence
of the Tribunal was not coutested. The fact that, had it so wished,
the Assembly could, as the report points out, have abolished the
Admiiiistrative Tribunal did iiot permit them to draw~theconclusion
that because this did not happen the Assembly could oppose the
execution of a decision giveri by the Tribtinal. Had tliat been the
case, there would have been no point in setting up an Administrative
Tribunal. The only reason this Tribunal was set up and endowed
with powers previously exercised by the Council of the League mas
that it was desired to replace a political organ by a judicial organ,
and decisions of a political order by jiidicial decisions. They were of
opinion that it was inaccurate to compare the Assembly of the
League with the legislative authority of a State, because, in the case
of the international organization, the organs of the League \vere
dealing with non-subject individuals with whom they concluded a
contract which rave nse to a lecal relatioii. Learue officials were
thereforc nui siibjects but co.conGncting parties. l'ïirthcrniorr, ;cvcn
in States ~msjessing?ob.crt.igiiti~hiili tl:\ssernt~ly~lid~iotIJosr.Y..,
11contracts werc ;~iiii.iiriIJI.the 1ecijl:itivc authorit!110 trihun;il
had the right to give retrosp<ctive egect to such amendments unless
express provision were made therefor by the terms of the new law.
To admit that, because the .4dministrative Tribunal declined to
give retrospective effect to amendments of contract, the Assembly
was entitled to refuse to esecute its decision would be to admit a
thesis which denied aU nght. Contrary to the assertion in the Sub-
Committee's report that there was no law goveming the case, the
contract entered into betweeii the League and its officialsconstituted
a legal relation and the Assembly had set up a judicial body to
interpret that contract-namely, the Administrative Tribunal. The
contractual nature of the legal relation binding the League and its
officialshad, moreover, been clearly recognized in 1932 by the Com-
mittee of Junsts. FinaUy, they did not think the argument of
necessity could be invoked to-day, though, at the time the Assembly
made its decision, it may have been extremely important to effect ~IEMORANDUM BY THE INTERSATIONAL LABOUR OFFICE 69

economies. Admittedly there was no right of appeal or remedy
against the League of Nations, but that did not justify the inference
that it was governed by no law. In exactly the same way, inter-
national law provided no remedy against States, but it was to the
honour of the international community that, almost without excep-
tion, States had accepted judicial or arbitral decisions, and very
few had declined ta accept a judgment though in certain cases they
might have thought it ill-founded.
By sixteen votes for and eight against, with four' abstentions, the
Finance Committee adopted the report of its Sub-Committee ;conse-
quently, effect will not be given to the judgment of the Adminis-
trative Tribunal."
The report of the Finance Committee was submitted to the

Assembly on 18 April 1946. The delegate of Belgium, bfr. Kaecken-
beeck, made the following statement :

"At the moment when the report of the Second Committee is
before the Assembly, the Belgian deleption desires to recall that
during the meeting held on the afternoon of April 13,it stated why
it felt obliged on grounds of principle to oppose the adoption of the
report suhmitted by the Suh-Committee on the question of the judg-
ments pronounced by the Administrative Tribunal of the League of
Nations. This report was nevertheless adopted by the Second Com-
mittee. Speaking alike for the Belgian delegation and for the dele-
gations of Denmark, Iran, Luxemburg, the Netherlands, Sweden,
and Switzerland, which have asked me to speak on their hehalf
also,1must express oiir regret that one of the last acts of the League
against it by a tribunal created by it, when in Our opinion there 1s

noThe delegations on whose behalf 1 have the honour to speak
represent countries which are desirous of intensifying judicial
me-~~--~in the international field and which fear the conseouences
of such a precedent; ~urthemore,.th~re~ort adopted by the kecond
Committee is based on certain considerations which closelv affect
the constitution and leeal foundations of the whole international
organization. u
By this declaration, the delegations of Belgium, Denmark, Iran,
Lu~~~~~-~. the Netherlands. Sweden and Switzerland desire to
express f&al reservations bu hehalf of their Governments in
resDect alike of the decision and of several of the considerations on
whkh it is based."

No other statements were made. The Assembly took note of
the declaration, and adopted the Report of the Finance Com-

niittee subject to the reservation of the seven governments z.
Accordingly, for the reasons set forth in the Finance Committee
report, the compensation awarded by the Tribunal was never

randum, show that there were. in fact, 5 abstentions.I to the present memo-
Ibid.. p. 6,.paid by the League of Nations. Ho\vever, as therein recommended.
the ex gratin payments to cover legal costs were made to the
claimants.

VI. CONSIDERATION BY THE I'TERNATIONA LABOURORGAXI-
ZATIOS OF THE 1946 JUDGJIENTS OF THE AD~\IINISTRATIT VREIBUNAI.

Because t\vo of the successful complainants iii the 1946 judg-
ments of the Administrative Tribunal were former officials of
the International Labour Office, the matter of the paymerit of
their awards came before the Governing Body of the International

Labour Office. The oucstion was first considered bv its T'inaiice
Committee l.
The Chairman of the Comniittee suggested that it could only
take note of the decision of the Leaeue Assemblv. because in
1939 the Assembly had been the sovereign body \&h regard to
financial payments. Several members of the Committee stated
that they could not understand theattitude adopted by the League
Assembly with regard to the Administrative Tribunal, which had

been set up for the special piirpose of taking decisions in cases
of disputes of this kind. The representative of the Government
of Belgium reminded the Cominittee that the Assembly dccision
had not been unanimous. He c:spressed the view that the League
of Nations did not possess any actual "sovereignty". Thc so-
called sovereignty \vas only assumed in a case in which the relative
strength of the League of Nations was opposed by the weakness
of certain officials takiiig isolated action against it, and thusiii

arhitrary façhion, a denial of justice was perpetrated in refusing
to recognize a judgment given by an Administrative Tribunal
set up by the League of Nations itself. That Tribunal had found
in their favour and the decisions taken by it could not be dis-
regarded. He hoped that the Committee mould decide at the
appropriate time to give effect, in the case of the two es-officials
concemed, to the decisions which the Administrative Tribiiiial
had taken.

The Finance Committee, however, took no action except to
note the decision of the Assenibly. that effect would not be given
to the judgment of the Administrative Tribunal, and to agree
that, in accordance with the League decision, pliymcnt shotild
be made in respect to the legal costs of the two International
Labour Office claimants. .

Governing Body disca~ssion

There was further debate in the Goveming Body itself 2.The
representatives of the Governments of Belgium, the Netherlands

1 F.C.g8lP.V.g.pp.5-7.
Afinuteof the Privale Sittitzgs ofSessiorrthe GovcrninBody (Aiay.
1946)PP. 108. MEMORANDU3f BY THE IKTERNATIONAL LABOUR OFFICE 71

and Sweden took the position that the International Labour
Organization was autonomous and not bound to act in conformity
with the decision of the League. They proposed that the Inter-
national Labour Organization should execute the jndgments made
against it by the Tribunal and pay the compensation awarded
in favour of the former officials of the International Labour Office.
A draft resolution to this effect was introduced in the Governing
Body by the three representatives.
The hasis of their position was stated to be that the Tribunal
had been set up to safeguard the rights of officials ;in law, when

it had given judgment the parties should abide by it ;to disregard
a judgment of the Tribunal would be contrary to al1 principles
of law, particnlarly in the case of an international organization
such as the International Labour Organization which had the
duty of observing the law and of acting in accordance with the
judgments of the Tribunal.
The Chairman of the Governing Body pointed out that the
League Assembly had decided that the Administrative Tribunal
could not override a decision properly taken by it and therefore
no action could be taken on the award of the Administrative
Tribunal. There was nothing that the Governing Body could do

except take note of the Assembly's decision. Only the Conference
had authority to authorize au expenditure to give effect to the
awards. The Chairman said that the important thing was to look
to the future, and in this respect he thought al1 members of the
Governing Body were agreed in wanting to avoid a situation
of that sort arising again. He therefore proposed that "the arrange-
ments conceming the functioning of the Administrative Tribunal"
be considered by the Staff Questions Committee of the Governing
Body "in order, to the fullest extent possible, to secure that no
difficulty may arise in the future as regards the execution of any
judgment the Tribunal may hand down". The Chairman went
on to suggest that provision might perhaps be made for "a court

of appeal", for example, the International Court of Justice l.
The Belgian Govemment Representative then stated that he
was willing to accept the compromise solution suggested by the
Chairman, but only on the condition that the Governing Body
should not at this time take a definite decision on the matter
but should postpone its decision until after it had studied the
report presented by the Staff Questions Committee. He stated
that his instructions from his Government did not permit him
to allow the matter to be dealt with as an administrative question,
but as a question of principle which should not lightly be cast
aside. He reiterated the argument that when a tribunal had given

judgment "the parties should abide by it, othenvise the law would
cease to be" ;moreover, an international organization was bougd

Ibid.p. 11.72 hlEMOR.4NDUhl BY THE INTERNATIONAL LABOUR OFFICE
to set an example in its intemal administration worthy of being
followed in international relations, otherwise the "direst catas-
trophe" would ensue.
hlr. Jouhaux, Workers' mernber (French), supported the vie\\,
that the International Labour Organization should abide by the

judgment of the Tribunal. He stated that if the International
Labour Organization had accepted the jurisdiction of the Tribunal
in disputes between the Organization and the staff, "it had
accepted in advance the judgments which that Tribunal might
give" ;no provision had been made for a court of appeall.

GouerizingBody decisiort

At the next Sitting, the Chairman reported that he had discussed
the matter further with the representatives of the Governments
of Belgium and the Xetherlands. As a result, they had agreed
to withdra\\r the draft resolutii~n which they had submitted, with
the understanding that in the report to be adopted by the Govern-
ing Body a paragraph mould be inserted indicating, in effect,
that the Governing Body coiild only take note of the decision
of the Assembly with regard to judgments of the Administrative
Tribunal, but that "the Governing Body felt that steps must
be taken to prevent a situation which everybody regretted arising

again in the future". The Staff Questions Committee was accord-
ingly asked "to consider the arrangements concerning the func-
tioning of the Administrative Tribunal in order to secure to the
fullest degree possible that no difficulty might arise in the future
as regards the execution of any future judgment the Tribunal
mighf hand dowr: 2".

Modification of the Statute of tlte Tribuira1to $rouidejor Advisovy
O$iiriorzof the Internalio~zalCourt of Justice

In accordance with this decision of the Governing Body, the
Office submitted a paper3 to the Staff Questions Committee. It
took the position that some organ apart from the Administrative.
Tribunal "shoiild have the competence to reconsider the Tribunal's
decisions". The power to reconsider should logically belong to
the highest existing tribunal-namely, as had been proposed, the .
International Court of Justice. The Office therefore proposed
"that the. Governing Body of the International Labour Office

or the Adniinistrative Board of the Pensions Fund might be
enabled to appeal to the International Court of Justice against
decisions of the Tribunal on the grounds that it had exceeded
its jurisdiction or where the procedure followed has been vitiated
' Ibid., p. 13.
Ibid.. p. rq.
' G.B./C.S.Q.II/D.,Sept.1946 MEIIORANDUM BY THE INTERNATIONAL LABOUR OFFICE 73

by a fundamental fault". A new article to be added to the text
of the Statute \vas suggested in the following terms :

"In any case in wh'ichthe Goveming Body of the international
Labour Officeor the Administrative Board of the Pensions Fund
challenges the decision of the Tribunal confirmingits jurisdiction,
or considers that a-decision of the Tribunal is vitiated hy a funda-
mental fault'in the procedure followed, the question as to the
validity of the decision given hy the Tribunal shall be submitted
hy the GoverningBody, for an advisoryopinion,to the international
Court of Justice: ~ -
The opinion givenby the Court shall be binding."

In discussion in the Staff Questions Committee, one representa-

tive said that he felt that the proposed Article would tend to
weaken the authority of the Governing Body. The Chairman
pointed out in reply that the Governing Body was committed
to the adoption of a provision on these lincs, an undertaking
having been given at the last sessioii. Another representative said
that he felt that the clause ir70uldgive rights of litigation to one

party and not to the other. The Director of the International
Labour Office explained that the Article did not propose that
the International Court of Justice should retry a case, but merely
that it could be asked to define the jurisdiction of the Tribunal.
The International Court had no jurisdiction to hear private persons.
The proposed text \vas thereupon approved by the Staff Ques-

tions Committee ' and by the Governing Body =.
On 9 October ~946, the text was adopted by the International
Labour Conference without discussion 3.

VII. EXPERIEKCE OF THE ADMIXISTRATIVT ERIBUNAL OF THE
IXTERNATIONA LABOURORGANIZATIO N 947-1954

Upon the dissolution of the League of Nations in 1946, the
International Labour Organization took over the Administrative

Tribunal 4. The Tribunal was to be available ta officiaisof the
International Labour Office and to pensioners of the League, of
the International Labour Office, and the Registry of the Perma-
nent Court of International Justice. Its name was changed to
"Administrative Tribunal of the International Labour Organi-
zation" and certain modificatioiis were made in the Statute 5. One

' G.B.jC.S.Q.IIjP.V.6.
* dlfinr<tes of the Private Siofthe 99th Session (Septernb1946).pp. 15
and 37.
3 Record of Proceedingr of the aglh Session of the Infrvnationai Labour Con-
ferencep. 229.
A L. ofN.,Ofjicial JournaSpecialSupplemeit 194,Records of the20th(Con-
clusion)and ~1st Sessions othe Assembly, p.181.
5 Record ofProceedings ofthe zgth Sessiof the Infevnafionol Labour Confer-
ence,pp. 338-340.74 MEMORANDUX BY THE INTERSATIOKAL LABOUR OFFICE

of these modifications {vas the addition of the new Article
providing for an advisory opinion. from the International Court
of Justice referred to above.
A later amendment to tlie Statute ' provided for the acceptance
by other intergovemmental international organizations of the

jurisdiction of the Tribunal si, that it would be available to
members of their staffs. As a result of this modification, four
other international organizations have accepted the jurisdiction
of the Tribunal : the World Health Organization, the International
Telecommunication Union, tlie United Nations Educational,
Scientific and Cultural Oreanization, and the World Meteoroloeical
- -
Organization 2.
The Statute of the Administrative Tribunal of the Int'ernational
Labour Oreauization in its ~resent form is attached to this memo-
randum ac~nnex IV.
Since the Administrative Tribunal has been maintained by the
International Labour Organization, seven cases have come before
it. In one case the Tribunal awarded compensation to the com-

plainant, and no question amse as to whether the Tribunal's
alvard should be executed.
In no case has the provision permitting the request for an
advisory opinion to the International Court of Justice been applied.

1 Recordof Pvoceedingsof the p+id Sessionofthe International Labour Conter-

en2The United Nations Food and Agriculture Organizationhas decided to accept
the jurisdictiof the Tribunal andfornial action thereon is to be taken by the
Governing Body of the International1-ahour Omce at its session in Marc1954.
3Not including fourcases in the eïerciseof the Tribunal'arbitralauthority
in respect to officiais of the InternatiInstituteof IntellectuaCa-operation
in accordancewitb arrangements made iuith the League of Xationç. 3fE3lORASDUhl BY THE ISTERSATIOSAL LABOUR OFFICE 75

Annex I to the Memorandum O/ the Interliational Labour O$ce

EXTRACTS FROM THE DEBATE IN THE FOURTH COklMITTEE
OF THE THIRTEENTH ASSEMBLY OF .THE LEAGUE
OF NATIONS CONCERNING THE RlGHT OF THE ASSEBIBLY
TO REDUCE SALARIES OF OFFICIALS UNILATERALLY

M. Osuski (Chairman of the Supervisory Commission) ....

The Chairman of the Supervisory Commission then drew the Fourth
~ommittee's attention to the existence of the Administrative Tribunal
of the League, wliich dealt with questions of private law of interest to
the League and private iiidividuals. The Tribunal was composed ofbetween
professional judges. When the Supervisory Commission had amved at
its conclusions, but without having to decide whether the contracts of
the officials were contracts in public or private lalv, it had asked itself,
as it was bound to do, what would happen if, by a unilateral decision,
the Assembly altered the salaries of the staff. In that evcnt, the officials
would no doubt refer the question to the Administrative Tribunal, and
the Administrative Tribunal might decide in their favour. The League,
of course, could set its judgrnent aside, consider it a dead letter ; it
undoubtedly had the power-M. Osiiski would not say the right-to
do sa. The Supervisory Commission must, however, advise it to consider
very carefully before adopting that course. Indeed, the Commission
considered that the chief business of the League was to see that under-
takings entered into were scrupulously observed, aiid in these circum-
stances it could hardly begin by violating its own.
Then, again, there were principles to be borne in mind. The Super-
visory Commission waç convinced that the League's strength was in
principles. The Commission had realized for years that there were
innumerable difficulties which could doubtless be avoided by oppor-
tunist measures-a ,pleasant and easy solution. Such opportunism
would have made it appear successful and skilful, and have gained for
itgeneral admiration so long as it was successful. But the members of
the Commission reaiiied that the margin between ol>portunism and
injusticewas small, and that institutions like the League could not live
by opportunism, even if it thus gained advantages for a few weeks, or
faith in principles. Only by defending principles could it establish itself
in tlie hearts and souk and confidence of the peoples. Thc Supervisory
Commission was so convinced of the force of principles at Geneva that
it had always endeavoured to establish the supreme authority of the
Assembly through a system in which the liberty of al1 was respected.
But it would point out that that liberty could only bf:exercised ful!y
if the Leagrie observed the rules and principles which it had itself laid
down.
(L. of N., O@cial Jozariial,Special Supplement No. 107, Records of
the 13th Assembly, Meetings of Comrnittees, Minutes of tlie Fourth
Committee, p. II.)
IV. Hambro (Norway) .... ~IEhlORASDUAI BY THE ISTERNATIOSAL LABOUR OFFICE
76
The League had no legal status. It could not prosecute, nor be prose-
cuted by, any member of the staff. The rights of its officials were based
on a kind of gentleman's agreement between the two parties. It would
be difficult to Say what would be the legal position should the League
decide to cut down salaries, though, as a matter of fact, the officials
wre powerless. In 1931, the Assembly had unanimously approved a
proposal to insert in the contracts of al1new officials a clause enabling
the Assembly to modify their salaries. That was al1that could be done
without prejudicing the interests of the League.
. . . . . . . . , . . . . . . . . . . . . . . . .

had no legal rights as had other officials. They had, it si\vas true, an
Administrative Tribunal, but this Tribunal had very limited powers.
Tlieir only safeguard lay in their trust in the faimess of the League,
and it would be fatal to shake that trust.

(Ib., P.15.)
dl. Réveillnrrd(France) ...there was only one authority which could
pronounce on this matter-namely, the Administrative Tribunal. Any
opinion expressed by the jurists of the First Committee would have tlie
force of a consultation only and, in this connection, 31. Réveillaud
desired to rebut an argument advanced by BI.Hambro. The latter had
said that thcre \vas no legal bond hetween the League and its officials
but only a kind of "gentleman's agreement". hl.Réveillaudwas forced
to protest against such a statcment. The Administrative Tribunal \vas
not an illusory safeguard. It had absolute and complete power to state
the law. From this point of view, he saw no difference between tbis
countries.nd the Councils of States or Supreme Courts in a number of
LI.Kéveillauddid not forget that, in theory, the League could refuse
the necessary vote for the execution of an awartl given by the Adminis-
trative Tribunal, but, within the national organizations, had not the
Parliaments the same theoretical power to take up the same position
with regard to the judgments of the Council of States or the Supreme
Court ?In the League,just as much as in a national State,an assumption
of that kind would be so disgraceful, it aould imply sucb a state of
anarchy, that it had better not be contemplated.
If the Administrative Tribunal were to have the last word, M.Kéveil-
laud did not see what was the use of a committee of lawyers. Was it
intended that it should give the Fourth Comrnittee and the Assembly
a certain measure of sccurity ? That, however, would be illusory, and
there was a risk that a few months later the Administrative Tribunal
might declare that the measure token was unjust, thus causing a great
scanda1 among some who had no great affection for the League and
who would Say that the Assembly dit not know what it was doing or
even that it had just given an example of a brcach of contract. From
another point of riew-the budgetary standpoint-what would be the
position of the League Treasurer if, during the financial period, he had
to turn his budget upside down tcifind the million or million and a half
which the Assembly. basing its decision on the opinion of the jurists,
had wrongfully decided to take from salaries ?
(Tb.. P.34.)78 \IEYORASDU>I BY THE ISTERS:\TIOSAL LABOUR OFFICE

Adrriinistrative Tribunal. Did the Assembly propose to abolish the
Administrative Tribunal, becausc it feared it, just at the time when,
in matters of foreign policy, it was laying greater stress than ever
onThe German delegate had referred to the Administrative Tribuiial
and to II. Osusky's statement that salaries were based on a principle
which could not be touchcd. The Administrative Tribunal had bcen
established by the League and could, of course, be abolished by an
Assembly decision. But the whole life of the League was based on prin-
ciples, and it was constantly insisting on the importance ofarbitration.
Had it shown less opportunism aiid greater attachment to priiiciples it
might have been more successful. How, then, could it do away witli its
own judges because it disagreed with their decisions ?....
The best way to settle the legal aspect would be to reduce the salary
of an official, and induce him to bring a test case before the Adminis-
trative Tribunal.
(Ib., pp. 41 and 42.)
The Secretary-Gexeralagreed tliat it was essential for the Assembly
to know whether it was legally competent to modify salaries. The point
was bound to be raised everv vear until it had been decided once and for
ail. Whether it was settled b$ aconimittee oflegal adrisers or by reference
to the Administrative Tribunal was not important, but it could only
be referred to the latter by an Assembly decision.
(Ib.. P. 43.)
M. de Modzelezeski(Poland) ....
The Polish Dele atioii proposed that this matter should bc studied
by a committee Of lawyers nppoiiited by the Chairman of the First
Committee. Other delegations thought it would be better to have it
settled by the Administrative Tribunal. There was, in reality, only a
very slight difference between these two suggestions, but 31. de 3iodze-
lewski thought that the Polish 1)elegation's proposal was both more
practical and more logical. The Administrative Tribunal could not
pronounce an opinion unless there was a dispute. That, fortunately, mas
not the case. Xo one thought of making a purely arbitrary reduction in
salaries. Al1the delegates on the Fourth Cornmittee were anxioiis that
the League's orgaus should work in peace. The mere mention of a dispute
would give rise to erroneous ideas outside. It aould be useless to explain
that the Administrative Tribiinal was merely being consulted, and the
public mould assume that tliere was a real clash of opinion. Iiurther,
he did not think that the Administrative Tribunal was the right body
to wliich to apply, since there wai; no legal clause under which it could
settle the case that would be brought before it.
W.. P. 46.)
M. Réveillnud(France) ....
It was, he believed, geiierally agreed that the defect of 'the legal
consultation suggested by the Polis11and Uiiited Kingdorn Delegations
was thatit would settle nothing, that it would have the force only of an
opinion, and that the whole qiiestion would have to be reconsidered some
day or other. M. Kéveillaudhad therefore thought that, in the interest
of evervbodv...t would be better ior the auestion to be brouelit before
tlie .\d~iiini,tr;iiiv~ Iril>iin;il. 'I'li;it1,udg. iiu\vciiuie~iil>ou.erc.d
to xi\,<:ol)iiiiviis.;itii~~iildlia\IO:ht-gi\,cii nii ol>l>ortimit)'ol jt;iting >lE>IOR.4XDUbI BY THE IKTERNATIONAL LABOUR OFFICE
79
an award. That was what M. Réveillaud was proposing. The Fourth
Committee would provoke a symbolical case. It would take a decision
which, without causing them any disturbance, would affect a category
of officials who, acting on the advice of the Fourth Committee itself,
would appeal to the Administrative Tribunal from the decision so taken.
For this to be done, the Polish and United Kingdom draft resolutions
would have to be dropped, and, when item 4 in the budget came up for

discussion, a reduction would have to be made which might be termed
a symbolical one. This reduction might, according to M. Réveillaud's
idea, apply to the salaries of the Directors in the Secretariat, tChiefs
of Division in the International Labour Officeand the officials belonging
to the same grade in the Court.
It would amount to one per cerit.
The procedure proposed above would have a two-fold advantage :
(a) Supposing the Administrative Tribunal held that the League was
bound by the contracts it had given its officials and that it would not
modify their salaries, the amouut to be refunded would not exceed
6,610 francs, and that would give rise to no difficultyin the execution
of theBudget. (b)The one per cent proposed would not cause any trouble
to the officials towhom the measure would annlv. In hl. Réveillaud's
opinion,there would be only one drawback to thé'method he suggested-
namelv. that it would delay the solution of the question for a time.
Yb.; P. 47.)
Sir Hilton Young (United Kingdom) ....
X. Reveillaud had said that, if the question were settled by a commit-
tee of lawyers, the Administrative Tribunal would be as good as deprived
of its powers. Sir Hilton Young did not share that view. In his opinion,
what would happen was that, if the committee of lawyers held that the

League was entitled to reduce its officials' salaries, the latter would be
reduced, and the members of the staff could, if they thought fit, bring
the matter before the Administrative Tribunal. In any case, the Tribu-
nal's decision would be bindiiig on the League. The method proposed
by the Polish and United Kingdom delegations was the truly practical
one. It was the custom of busiiiess men to consult a lawver before tak-ng
legal proceedings.
(Ib., P. 48.)
Mme Kluyuer (Netherlands) doubted whether Sir Hilton Young's
proposal would be the quickest. It was, perhaps, iiecessary to have a
legal opinion, but since, whatever happened, the question would have
to be settled by the Administrative Tribunal, it would appear wise to
apply to the Tribunal at once. Indeed, the Tribunal must have an
opportunity of giving its award hefore the Special Assembly met. since,
otherwise, Llial Assembly would be in the same position of uncertainty
as the Fourth Committee was at present: She saw great advantages in
the system suggested by M. Réveillaud and associated herself with the
Italian delegate's remarks. From the point of view of the spirit which
should prevail among the League organizations, it would be better to
follow the French Delegate'sssuggestion. Moreover, there were certain
objections to asking two different bodies for an opinion on the question.
If the committee of lawyers and the Administrative Tribunal gave
different conclusions, the effect would be most unfortunate for the

League's prestige.
W.. p. 49.)80 JIE~IORASDU~I BY THE IXTERS.&TIOSAL LABOUR OFFICE

M. Oszrsky(Chairman of the Supervisory Commission)drew attention
to the fact that the present discussion had its budgetary aspects. If the
lawyers found that salaries could be reduced and the Assemhly cut
doun the credit for salaries by a certain amount and if, in those circum-
stances, the Administrative Tribunal award was favourahle to the
officials, where would the League Treasurer find the money to give
effect to i? M. Osuskf hegged his colleagues on the Fourth Committee
to think over this possibility.
(Ib., P. 50).
M. de Modzelewski(Poland), examining the results likely to follow
from the adoption of the Polish proposal, obsewed that, if the committee
of lawyers held that salariescoulii not be modified, the question would
be solved very rapidly and there would be no possibility of a clash. If
the contrary were the case, the opinion would certainly be accompanied
by very weighty and cogent considerations and would practically amount
to a judgment which would command acceptance. There was, therefore,
very little prospect that the reply given by the committee of lawyers
would be follou.ed by an award by the Administrative Tribunal. That
being so, what was the point of complicating things ?
(Ib., P. 50.)

Annew II 10 the Meinornndztmof the International Labozv Ofice

TEXT OF JUDGRlENT No. 35 OF THE ADMINISTIZATIVE
TRIBUNAL OF THE LEAGUE OF NATIONS

IN THE CASE OF
ZOPPIXO u. INTERNATIONAL LABOUR OFFICE

The Administrative Tribunal of the League of Nations,
Being seised of an Application dated the 24April 1940by Mme Andrée
Zoppino against the International Labour Office ;
\Vhereas theApplicant specifies as follows the remedies for which
she makes application :
I. For a declaration that the communications dated 20 January and
28 Rfarch 1940. by which the Director of the International Labour
Officeterminated her contract of employment asan officia1of the I.L.O.
are based upon an amendment (dated 21 December 1939)to Articles 19
and 83 of the Staff Regulations which is unlawful in that it was made in
contravention of Article 97 of th,: Regulations and that in consequence
her contract of employment was cancelled in contravention both of
Articles 19and 83 of the Regulations, unconstitutionally amended for
thatpurpose, and of the conclitionsof the contract of employment of the
Applicant as laid down by the said Articles of the Staff Regulations;
z. For an award that the International Labour Officepay forthwith
to the Applicant :

(a) a sum equal to five months' salary as prescribed by the contract
of employment of the Applicant ;
(b) the unpaid balance of the sum equal to one year's salary which is
due and owing to the Applicant as indemnity for termination of MEDIORANDUDIBY THE ISTERN.4TIOSAL LABOUR OFFICE 81

contract by virtue of Article 83 of the Staff Regulations within the
meaning -f that Article prior to its last amendment ;
(c) interest on these amounts at 4 per cent per annum from the dates
on which they became due to the date of payment of the same :
(d) the costs of this Application, the amount of which will be specified
later;

3. For an order for restitution of deposit.

ON THE FIICTS :
Whereas the Applicant was an official of the International Labour
Office. and was a membcr of its permanent staff under the terms of a
contract of employment taking effect from IJanuary 1931.replacing an
earliercontract ofcmployment whichentered into forceon I January 1926 ;
And whereas by a letter of 22 December 1939 the Applicant was
requested by the Director of the International Labour Office either to
ask for ber contract to be suspended or to resign and was informed that
in the event of her not takin~ such a sten ber name had heen ~iaced on
the list of officiais whose coitracts wouîd be cancelled on 3Î January
1940 on the conditions presented by the Staff Regulati.ns as amended
the previous day ;
And whereas by a letter of 20 January 1940 the Applicant received
notice of termination of lier employment as from 31 January 1940:
And whereas the Applicant on 22 January 1940, under the terms of
Article 19 (ci)of the Staff Regulations, submitted her case to the Joint
Committee, an interna1 organization within the International Labour
Office,requesting it in particular to pronounce that the method of tennin-
ation of her employment (urithone month's notice instead of six and the
payment by four instalments of the indemnity equal to one year's
salary instead of hy a lump sum payment) constituted a breach of her
contract in particular and of the Staff Regulations in geiieral ;
And whereas the Joint Committee made a report on I March 1940 in
which it found on this point for the Applicant ;
And whereas the Director, by a decision of 15 IIarch 1940, communi-
cated to the Applicant by a letter of 28 hlarch 1940. rejected the recom-
mendations of the Joint Cornmittee on the ground that it had no juris-
diction and reaffirmed his decision to terminate the employment of the
Applicant on the same conditions as had been contested ;
And whereas the decisions of the Director of the International Labour
Office, dated 20 January and 28 March 1940 and hrought before the
Tribunal by the present Application, by which decisions the employment
of the Applicant is terminated with one month's notice only and by
which the payment of the idemnity for termination of contract which
is due to her under Article 83 (a)of the Staff Regulations willbe made by
several instalments, are based on the amendments to the Staff Regulations
dated 21 December 1939 and more specifically on Articles 19 (b) and
S3 (b) as altered by the said amendment.

ON JURISDICTION :
1. Whereas the Statute of the Administrative Tribunal espressly
provides in its Article II, para. 1, that the Tribunal has jurisdiction to
entertain applications alleging the contravention either in substance or
in form of the conditions of contracts of emploj~mentof officiais ;

7 l1ElIORASDUJI BY THE 1NTERS.ITIOSAL LABOUR OFFICE 83

\\'hereas it cannot be accepted that the League of Nations was not
in a position to honour the acquired rights of its staff ;
Whereas therefore the Applicant is entitled :
I. to six months' notice or payment of six months' salary in lieu of
notice ;
z. 'ta an indemnity equal to one year's salary payable forthwith ;

Whereas the fact that the payment of salary in lieu of six months'
notice will be made only after a long interval and that the indemnity
has been paid only after delay and by instalments on different dates
entitles the Applicant ta interest on overdue payments which the
Tribunal fixes ex quo et bono at 4 per cent per annum.
ON THE GROUNDS AS AFORESAID,

The Tribunal declares it has jurisdiction herein,
Finds for the Applicant in substance and in form,

Decides that the Applicant has a right to have applied Articles 19
and 83 of the Staff Regulations of the International Labour Office as
subsisting at the date of her contract ;
Therefore,

1.Orders the Respondents to pay to the Applicant the sum of
4,091.45 Swiss francs, representing five months' salary together with
interest thereon at 4 per cent per annum from I Febmary 1940 ;
z. Orders the Respondents to pay to the Applicant interest at 4 per
cent per annum :

on 8,062.50 Swiss francs calculated from IFebruary 1940 to I February
1941,
on 5,375 Swiss francs calculated from I February 1941 to 1 Febmary
19423
on 2,6S7.50 Swissfrancs calculated from IFebruary 1942to I Febmary
1943 ;
3. Orders the Respondents to pay to the Applicant the sum of
250 Swiss francs towards her costs of action ;

4. Orders the restitution of the deposit made by the Applicant in
accordance with Article VI11 of the Statute of the Tribunal.
In witness of which judgment, pronounced in public sitting on
26 February 1946 by Mr. van Rijckevorsel, President, hlr. Eide, Vice-
President, and His Exceilency Mr. Devèze, Judge, the afore-mentioned
have hereunto subscribed their signatures as well as myself, van Asch
van \Vijck, Clerk of the Court.

(Signed) Albert DEVÈZE.
Vald. EIDE.
A. van RIJCKEVORSEL.

IV. H. 1. van ASCH VAN ~VIJCK. \IEYORAXDU.\I BY THE ISTERX.4TIOXhL LABOUR OFFICE
85
This power was no novelty to municipal law, for in every country of
the world the State had an inherent power to disregard the contracts
into which it had entered if, in the ioterests of the State, this appeared
desirable. It could pass a law to say particular contracts were no longer
obligatory, and it could do so without regard to vestedrightsandinterests.
This Dower would not of course be used in normal circurnstances. and

. .
irniict7i mnilcit iir>c~~ssnriI.iri),j~,cir~iirnstnncrs (litricccsiit:irc fliis,
and th^.Siib-Coniniirtec. felr tti:ittlic :\.;scnibly lind po\re10 i;ikc iIi:it
<lc-cisioind the :\~lmiiiistr;iti\~tl'ril~iiiialwas bound Ilitlié .\sscnibl\.'s
decision.
The Administrative Tribunal had based its decision on two grounds.
In the first place, it maintained that it was entitled to disregard the
decision of the Assembly because the Assembly had no right to arrive
at that decision. The Sub-Committee thought this fundamentally
wrong and considered it a matter of importance that the status ofthe
Assembly should be maintained. But in the second place the Tribunal
fortified itself withn conclusion of fact to the effect that the reçolution
passed by the Leagiie in 1939was not intended to apply to those officials
in whose cases its application would have involved a breach of contract.
The Sub-Committee most emphatically held the view that here the
Tribunal was absolntely wrong. The resolution adopted by the League
in 1939was perfectly clear in its terms and the only possible conclusion
was that the Tribunal felt that its decision on the lcgal aspects uras so
open to question that it Iiad to fortify itself on the decision of fact.
The Chairmanthanked the Sub-Committee for its prompt and careful
report on a very difficult and complicated question, and particularly
Sir Hartley Shawcross for the lucid explanation he had given.

iM. Kaeckei~beeck (Belgium) said that, whilst admiring the luminous
statement made by Sir Hartley Shawcross, he had been greatly struck
by several arguments in the Sub-Committee's report with which he could
not agree. First of all, there was the constitutional and legal aspect of
the relations which existed, on the one hand, between two organs of the
League of Xations-namely. the Assembly and the Administrative
Tribunal-and on the other, between the League and its officials.
It would seem to follow from the report tliat, according to the Sub-
had the right to oppose the erecution of a judgment of which it did not
approve. That was a principle which appeared to be absolutely contrary
to the notion of law and the sovereignty of law. In his opinion they
should ask themselves whether the Assembly, takiiig the view that
certain of the Tribunal's interpretations were inaccurate, had the right
to oppose the esecution of a judgment of the Administrative Tribunal.
The Assembly might, as Sir Hartley Shawcross had observed, have
abolished the Administrative Tribunal, but advantage could not be
taken of a hypothesis wliich had not comc to pass in order to refuse to
esecute a judgnient rendered by the Tribunal. If tbey were prepared
to do that, there Iiad been no object in estûblishing an Administrative
Tribunal, and they might as well have left the League of Nations and
its officials to settle matters among thernselves. When the Adminis-
trative Tribunal \vas established, the powr of interpreting questionsof law and of determining the legal relations between the League and
its officials, which had previously been attributed to the Council, a
If, therefore, the Tribunal was invested with the power ofudicialinterpre-
tation, it followed that its interpretations were operative.
In paragraph 5 of the report, the problem did not appear to have
been stated as it oueht to have been. The auestion was not whether the
Assembly ivascompetent to render operriti\.e :i]ii<lb?iieolttlie Adriiinis-
trnti\.e Tribunal. but whether the Assembly \vas competent to pre\.ent
the esecution of :i ru<lrmeritof tlie 'l'ril)iiiial\i,lieri tlie slid iuilenient
had been rendered in 2 matter iri respect of which the com$eteice of
the Tribunal was not contested.
By refusing to execute a judgrnent which dis leased it, the League
of Nations would be gravely violating the rules oflaw and of the sover-
eignty of law and such action would have extremely serious reper-
cussions in an international organization in which constant efforts had
been made to substitute law for force. The intention in transferring to
the Tribunal the former judicial powers of the Council had, in fact,
been to substitute judicial decisions for decisions of a political nature.
Sir Hartley Shawcross bad expressed the view that, within the frame-
work of the League of Nations, tliere was not really any law goveming
the case. That statement did not seem to be accurate, inasmuch as the
contract entered into between the League of Nations and its officials
constituted a legal relationship and the Assembly had established a
Administrative Tribunal. to interpret that contract-namely, the
It would be absurd to agree to execute only those judgments which
were rendered in favour of the League of Nations ;yet that would be
the result if it were admitted that the Assembly bad the right and the
power to decide that judgments should not be executed because it did
not approve the reasons invoked by the Tribunal.
Sir Hartley Shawcross and the Sub-Committee had attached great
importance to the fact that the Assembly of the League of Nations
might be compared to a legislative assembly which, within a State,
had the power, in certain circumstances, to modify contracts. That
analogy, however, was not quite pertinent, for the Assembly was not a
legislative assembly and it could not be compared with the legislature
of a State. In a State there were a legislative power, a judicial power,
and the subjects of the State. In the case of the international organiza-
tion, the organs of the League were dealing with persons who were
strangers to them, with whom they concluded a contract which gave
rise to a legal relatiouship. The officiais of the League of Nations were
not the subjects of the international organization but co-contracting
~arties.
Even in States possessing sovereign rights which it was impossible
Dower modified contracts. to interoret those modifications reirosnec-ative
iively, unless the new lak contaiied express provisions to that effect.
As the Administrative Tribunal had not been prepared to apply the
modifications of the contract retrospectively, the Assembly, according
to the Sub-Cornmittee, was entitled to refuse to execute the judgmeut.
To admit tbat argument would be the negation of law. It was a concep-
tion which the Belgian delegation could not accept. DIEUORANDU~\IBY THE IXTERSATIOSAL LABOUR OFFICE 87

The question, which was very complex, had arisen largely out of a
sort of conception of necessity. Necessity, however, could not be invoked
at the present time even if, at the moment when the Assembly took its
decision, it was extremely important to effect economies.
In conclusion, he drew the attention of his colleagues to the very
principles it had critized.might follow from the adoption of the
After it had constituted a Secretariat which had doiie excellent work
and at a moment when a new organization of States was being created,
was the League of Nations going to run the risk of disregarding every
legal mle by adopting principles which no State would adopt and which
it would be impossible to enforce in any State without the general
public gaining the impression that the standpoint of law was being
completely abandoned in favour of political arbitrariness ? The Belgian
Delegation could not vote in favour of the report submitted to the
Committee.

Delegation was in complete agreement with the views of the Belgianedish
Delegation.

M. François (Netherlands) stated that, in the opinion of the Nether-
lands Government the League of Nations was bound to carry out the
Administrative Tribunal's decision. International jurisdiction, indeed,
made no urovision for sanctions. but it was to the credit of the inter-
nationnl &niniiinit!. ttiat States, nlmost \iitt,out esccption, lind ncceptcd
ludicinl or arhitral desisiolis, and that vcnftivof tticm tiad refiised to
hmvhefore a tinal award. Itwould be extreiiicl\~rccretttiblifthe I.cnuiic
of Xations, at the moment when it %vasabout io disap ear, were-to
figure among those exceptions. The Sub-Committee was ofopinion that
the Tribunal's decision waç at fault, but that argument could not be
could be at the same time judge and party to litigation. Fortunately,body
the Suh-Committee had refrained from invoking the argument that the
Tribunal was not competent, for incompetence had always been invoked
by States, which wisbed to escape a decision unfavourable to themselves.
The Sub-Committee was further of opinion that the action taken by the
Secretary-General was justified by a decision of the Assembly and that
being so the Tribunal should bave dismissed the claim. It was not for the
Committee to examine the merits of the award, for the League of Nations,
even if it were sovereign. was itself a party to the dispute. An appeal
might have been lodged of the Statute provided for such a recourse,
but, in the circumstances, it only remained for the League to bow to the
decision of the competent judges. The execution of the judgment would
be a heavy burden on the League, but it was better to lose mone than
to injure not only the prestige of the League but also the cause oJinter-
national junsdiction.
If it contented itself with carrying out the Tribunal's decision, the
League would keep strictly within the limits of the award, that is toay,
it would pay the prescrihed compensation to those to wbom the decision
applied. With regard to the others, the League of Nations, refraining
from expressing an opinion as to the merits of the decision, was under
no obligation-not even a moral one-to grant them the same treatment. The Netherlands Delegation took the view that good sense should be
applied in settling international affairs, but it was precisely good sense
which demanded that an organization like the League of Nations should
set an example in the matter of respecting an award, even if it considered
the decision unjustified.

M. Watteau (France) said he had little to ~dd~to the verv strone -
arguments nd\.:;nccd hi Sir Il;irtley ;ha\r,cross. Those srgiiiiir;irs wcrç
ratioii iii tlic Siil>-Committcc.If thc :\dininistr:iti\~e Trihiin;il'j <lecision
bas recognized as being valid, eqiiity would d&and that its application
should he extended to officials who had not lodged a complaint and,
a fortiori, to officialsstill in the service, who might lodge a similar com-
plaint. If that were done, it would involve very, important financial
consequences, and tliat fact constituted a subsidiary justification for
the commonsense attitude reco~nmendeà hv Sir Hartlev Shawcross.
Legally, the Tribunal's judginent should ii;t be recogn&ed as valid.
Practically, a decision to the contrary-would entail consequences wliicli
it would be difficult to entertairi.
Xevertheless, if, asthe Report suggested, tlie Supervisory Commission
were to consider the granting of their expenses to officials who had
lodged a complaint in good faith, that solution would seem to be entirely
reasonable to the French Delegation.
M. Kojhecky(Czechoslovakia), Vice-Chainnari, stated in his capacity
as Chairman of the Sub-Committee that the fundamental question
seemed to him to be the following. The Administrative Tribunal had
declared itself conipetent to pass judgment even on decisions of the
Assembly. On the othcr hand, it might be maintained that the Assembly
had never intended to confer such a power in tlie Tribunal. The fact
that the Statute contained iio definite clause on that subject could not
be interpreted in the way the Tribunal had iiiterpreted it.
He had followed closely the statement made by the Belgian delegate,
in'whose view the Tribunal \vas comptent to give judgment upon a
dispute between the League and its officials, but he himself thought
that the matter should be put othenvise. It was the duty of the Tribunal
to deliver judgment on disputes between the Administration of the
League and officials.In point of fact, the Tribunal had been constituted
by the Assembly for the purpose of watching over the exact execution
of its decisions. He and his colleagues on the Sub-Committee held that
the competence of the Tribunal could not be extended to cover the
decisions of the Assembly itself. The Assembly could change the consti-
tution of the Tribuiial and could even abolish it. The Tribunal was
thereforesubordinate to the Assembly and could not bind itby invoking
a decision which it had taken at ;in earlier date. For the reasons he had
giren, he was able. in al1conscience, to support the legalriewput fonvard
by the Rapporteur of the Sub-Committee, wliilst regretting that the
desires of some officials would not be satisfied.
Sir Harlley Sliawcross (United Kingdom), Rapporteur of the Sub-
Committee, replying to the previous speakers, said that the Sub-Com-
mittee fully recognized the importance of conferring on international
officialsa measure of security at leastequal to that enjoyed by members
of national services. The conclusion reached by the Sub-Committee did
not carry the consequence tliat an international officialhad no contrac- XEIIOR.+SDUII BY THE ISTERSATIOSAL LABOUR OF'ICE 89

tua1 rights, but merely that the League of Xations possessed residuary
powers which ivere supreme, that was to Say, that in the last resort it
was the League'and not the Tribunal which was the master. But this
power ought not to be esercised, and obviously would not be exercised,
so as to set aside rights and vested interests, except in estreme circum-
stances such as those which existed in 1939. The question as to when
it should be exerciscd was a inatter of policy and not of legal power.
If he had been .arguing this case in a local county court, he would
have been in complete agreement with al1 the propositions advanced
by his colleagues. But this was not the case, and he thought they were
in danger of falling into the error of judging this matter by ordinary
canons of municipal law as enforced in ordinary municipal courts.
Such principles were largely inapplicable to a case of this kind, unless
the Assembly usascontent to place itself on the same basis as an ordinary
municipal corporation. Such a basis would be contrary to the law and
to the facts. The Assemblv corres~onded more to the sovereien bodv
tli~in ro tht: ordinuryc<~~~inierc~:il 'trpnd~t~ui, sntl iï\%,iijili
th:tt fielof I:intli:it tliii ni.itter Ii;Lieron;rderctl.
It was the inherent right of every sovereign legislaturc that some-
where in the Constitution there should exist the power to disrcgard
contracts which turned out to be contrary to the interests of the State.
If this were not so. some ilrivate vested rieht could stand in the wav
of the interests of the I>co;le and the ~tatc
The Belgian Delegate had said that the law to be applied was the
law of the contract between the Leaeue of Nations and its officials.
But the law of contract \vas interPretcd differently in every country.
If this contract had been concluded in Britain, it would certainly have
been ovemdden in the circumstances which had prevailed.
Another question was that of the other officialswho had not appealed.
When this decision \vas taken by the Assembly in 1939, it affected
several hundred people, of whom al1but twelve had loyaily accepted it.
They had no doubt done so in the belief that it would apply equally ta
all. If the Committee took the view that the twelve or thirteen oficials
who had challenged the decision were to be paid this considerable sum
of money, it would be very difficult in equity to refuse the claims,
although legally they were but of time, of the hundreds of officialswho
stood by the League in the times of emergency of 1939 :it would cost
some four million francs, but it could be done and oirght to be done.
The Committee was, however, concerned not only with justice to
these individuals but also with the status of the Assemblv. It was of
profoirnd importance to uphold the legal and diplomatk immiinity
tain their high and speciil status.r the United Nations and to main-

Professor Bailey (Australia) said that at the conclusion of a long
and close discussion in the Sub-Committee, he had found it necessary
to resenre the position of the Government of Australia. For that reason,
he had thought it proper not to participate in the discussion in the full
Committee.
M. Kaeckenbeeck (Belgium) said that he would like to clear up a
passage in his previous statement which seemed to have been misinter-
preted. In the course of his remarks he had said that Sir Hartley Shaw-
cross had expressed the view that within the framework of the League90 JLEJIORASDU11 BY THE INTERXATIONAL LLAOUR OFFICE
1
of Nations there was not really any law governing the case. His reply
Hartley had then spoken of the law of the contract. That would, how-ir
ever, be the law according to which the contract must be interpreted.
What he had meant to Say was that the legal relationship in uestion
was a contractual relationship. Tliat was, in fact, what was sail in the
report of the Committee of Juricts which had considered in 1932 the
right of the Assembly to make a unilateral reduction in the salaries of
the officials.

M. de Blanck (Cuba) thought that the two views were already snffi-
ciently known. They might still tie discussed at length. It was time to
take a vote.
The Chairmanfully approved tlie suggestion. He asked the Committee
whether it was prepared to accept the recommendations made by the
Sub-Committee. He drew particular attention to paragraph IO of the
report. If the report was adopti:d, the suggestion contained in that
paragraph might be carried out by the Board of Liquidation, the setting-
up of which was contemplated.
The vote would be taken by roll-cail at the request of the Belgian
delegate.

The result of thevotingwas as follows:
4 delegations were absent (Afghanistan, Dominican Republic, Ecua-
dor, Panama) ;
16 delegations voted in favour of the adoption of the report (Union
of South Africa, Argentine, Bolivia, United Kingdom, Canada, China,
Cuba, Egypt, Finland, France, India, Ireland, Mexico, New Zealand,
Czechoslovakia. Turkey) ;
8 delegations voted against tlie adoption of the report (Belgium,
Denmark, Luxembourg, Netherlands, Poland, Sweden, Switzerland,

Uruguay) ;
5 delegations abstained from voting (Australia, Greece, Norway,
Portugal, \'ugoslavia).

The report was adopled.

Annex IV to theMemoranrlnmof the International Labour Ofice

STATUTE AND RULES OF COURT
OF THE ADMINISTRATIVE TRIBUNAL
[Not nproduced

STATUT ET RÈGLEMENT
DU TRIBUNAL ADMINISTRATIF

[Non reproduit '1

International Labour Office Bureau internationadunTravail. Geneva. 195-l.
Geneve. igj3. 5. EXPOSÉ ÉCRIT DU GOUVERNEMENT DE SUÈDE

Monsieur le Président,

Par ordonnance du 14 janvier 1954. les États admis à ester
devant la Cour internationale de Justice ont été invitésà présenter
des exposés écrits sur les questions soumises à la Cour pour avis .
consultatif conformément à la résolution de l'Assemblée générale
des Nations Unies du 9 décembre 1953. questions concernant
l'effet de jugements du tribunal administratif des Nations Unies
accordant indemnité. Faisant suite à cette invitation, leGouver-
nement suédois désire présenter les points de vue suivants.
La première question posée à la Cour est ainsi conçue :

« Vu le Statut du Tribunal administratif des Nations Unies
et tous autres instruments et textes pertinents, l'Assembléegéné-
rale a-t-elle le droit, pour une raison quelconque, de refuser d'exé-
cuter un jugement du Tribunal accordant une indemnité à un
fonctionnaire des Nations Unies à l'engagement duquel il a été
mis fin sans l'assentiment de l'intéressén
Cette question paraît demander tout d'abord l'examen d'un
problème plus général : jusqu'à quel point l'organisation des

Nations Unies est-elle tenue à remplir ses obligations juridiques
impliquant versement de paiement? Il n'est pas douteux que
I'acquittement d'une telle obligation exige un vote de l'Assemblée
générale accordant les crédits nécessaires.Il ne fait pas de doute,
non plus, que les États Membres puissent donner à leurs repré-
sentants à l'Assemblée généraledes instructions de voter contre
de tels crédits et de rendre ainsi, en fait, le paiement impossible.
En cas de vote dans ce sens, la situation serait sans issue par
l'effet de l'immunité judiciaire des Nations Unies, et la partie
adverse ne pourrait arriver à être payée. Toutefois, en ce qui
concerne une organisation bâtie comme celle des Nations Unies
sur le principe de la prééminence du droit, on ne saurait s'en
tenir à la simple constatation du fait que l'Assemblée générale
a la possibilité matérielle de bloquer n'importe quel paiement.
L'organisation des Nations Unies qui d'ailleurs, le cas échéant, ,

fait valoir elle-mêmedes réclamations de nature financière, doit'
évidemment être considéréecomme tenue, en droit, d'accomplir
les obligations qu'elle a contractées. Un refus de crédits par.
lequel l'Assemblée généralerendrait impossible I'acquittement
d'une telle obligation porterait donc atteinte au droit.
Cette manière d'envisager le problème serait applicable par
exemple au cas où un fonctionnaire de I'Organisation des Nations
Unies aurait, dans le cadre de sa compétence, conclu au nom de
l'organisation un achat et où I'Assembléegénérale,en désapprou- 92 EXPOSÉ DU GOUVERNE~IE'T DE SUEDE (12III54)

vaiit cet achat, serait portée à refuser les crédits qui permettraient
de remplir les obligations contractuelles de l'acheteur.
Une situation analogue pourrait naître si l'organisation des
Nations Unies avait conclu avec un État Membre un accord
prévoyant que des différends sur l'interprétation ou l'application
de l'accord seront régléspar voie d'arbitrage, comme c'est d'ailleurs
le cas pour l'accord conclu avec les Etats-Unis concernant le siège
des Nations Unies. Si un différend sur un tel accord était porté
devant un tribunal d'arbitrage constitué selon les stipulations de
l'accord et si le tribunal d'arbitrage donnait une sentence contre
les Nations Unies condamnant cette Organisation à une prestation
de nature financière, il serait également contraire au droit que

l'Assemblée générale, en refusant les crédits nécessaires pour
faire face à cette obligation, rendît la sentence illusoire.
La conclusion à laquelle on arrive dans ce dernier exemple
est également valable pour les jugements du Tribunal administratif
des Nations Unies.
L'Assemblée généralea créé ceTribunal, dont elle a adopté
le statut le 29 novembre 1949. Selon l'article z, paragraphe 1,
du statut, le Tribunal est compétent pour connaître des requêtes
invoquant l'inobservation du contrat d'engagement des fonction-
naires du Secrétariat des Nations Unies ou des conditions d'emploi
de ces fonctionnaires et pour statuer sur lesdites requêtes. Le
paragraphe 3 du mêmearticle prescrit qu'en cas de contestation
touchant sa compétence le Tribunal décide.En outre, aux termes

de l'article IO, paragraphe z, les jugements du Tribunal sont
définitifs et sans appel.
Or, la situation juridique des fonctionnaires des Nations Unies
est régléeet par les statuts et règlements les concernant, et par
les contrats individuels qui ont étéétablis pour chacun d'eux
et qui se réfèrentaux statuts et règlements en vigueur. Le tribunal
administratif et son statut sont donc parties intégrantes des
relations contractuelles entre l'organisation des Nations Unies
et ses fonctionnaires. Il s'ensuit que l'organisation manquerait
à une obligation contractuelle si elle n'observait pas le statut
du Tribunal.
Tant que le Tribunal restera dans le cadre de sa compétence,
l'organisation des Nations Unies sera donc tenue en droit à

exécuter ses jugements. En cas de doute concernant l'étendue
de la compétence du Tribunal, il faut en outre remarquer que
le Tribunal a reçu selon l'article2, paragraphe 3, de son statut
'le pouvoir de décider lui-même. Il est vrai que cette disposition
se trouve dans un contexte du statut où il est question de l'étendue
de la compétence du Tribunal en vue de l'interprétation des
termes ccontrat d'engagement >,et « conditions d'emploi »,mais
à plus forte raison le Tribunal est évidemment compétent quand
il s'agit de statuer sur la question de savoir si une certaine mesure
prise par le Secrétaire généralcontre un fonctionnaire constitue EXPOSÉ DU GOUVERSEJIEST DE SUÈDE (12III54) 93
une inobservation de son contrat. En tranchant la question de

savoir si le renvoi d'un fonctionnaire a étéjustifié ou non, le
Tribunal ne saurait donc être considérécomme placé sous la
censure de l'Assembléegénérale.De même,l'évaluation du dom-
mage causé par l'inobservation d'un contrat d'engagement doit
êtreconsidérée commeétant de la compétence exclusive du Tri-
bunal. A défaut d'une règle limitant le montant de l'indemnité
à accorder à la partie lésée - et une telle règle n'existait pas
avant les derniers amendements au statut du Tribunal -, les
décisions du Tribunal concernant fixatioii d'indemnités ne sont
donc aucunement soumises à une revision par l'Assemblée générale.
Reste la question de l'effet que produiraient des irrégularités
dans la procédure devant le Tribunal. Cette question doit être
étudiéeà la lumière de la jurisprudence concernant la nullité des

jugements internationaux pour fautes de procédure. Le Gouver-
nement suédois secontente de constater qu'à son avis des irré-
gularités dans la procédure ne pourraient en aucun cas donner
lieuà une revision des jugements par 1'.4ssemblégénérale.Toute-
fois, sous des conditions très restreintes, on pourrait envisager
une revision par le Tribunal lui-même,comme cela a étéle cas
dans l'affaire de Jane Reed où les deux parties avaient fourni
au Tribunal un renseignement erroné concernant une date im-
portante pour l'évaluation de l'indemnité due à la partie deman-
deresse.
A la lumière de ce qui vient d'être dit,le Gouvernement suédois
pense qu'il faut donner une réponse négative à la première des
questions soumises à la Cour internationale de Justice, ce qui
élimine la deuxième question.

En soumettant ces points de vue, le Gouvernement suédois
vous prie, Monsieur le Président, d'accepter les assurances de
sa très haute.considération.

Stockholm, le 12 mars 1954.
(Signé O)STES UXDÉN. 6. WRITTEN STATEMENT OF THE XETHERLANDS
GOVERNMENT UXDER ARTICLE 66 OF THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE ON THE
EFFECT OF AIVARDS OF COMPENSATION MADE BY THE

U.N. ADMINISTRATIVE TRIBUNAL

The Netherlands Government, anxious to contribute to the
clarification of any question which might endanger the efficiency
and the security of the Staff of the U.N. Secretariat, respectfully
submits to the International Court of Justice, under Article66 (2)
of its Statute, the follo\ving staiement on the request of the General
Assembly for an aclvisory opinion on the effect to be given to
a~vardsof compensation made by the U.X. AdministrativeTribunal.

1.The first question referred to the Courtisas follo\vs :
"Having regard to the Statute of the United Nations Adminis-
trative Tribunal and to any other relevant instruments and to the
relevant records, has the General Assemblythe right on any grounds
to refuse to give effect to an award of compensation made by that
Tribunal in favour of a staff member of the Unitedtions whose
contract of service has been terminated without his as?"nt
Considering in the first place the Statute of the United Nations
Administrative Tribunal mentioned in this question, it \\rould seem
that the most important of the relevant provisions are those of
Article zand of Article g as in force at the time of the drafting of
the question by the Fifth Committee, and of Article 9 as ameiided
by a Resolution of the General Assembly of December 9th. Igj3,
effective from the date of adoption.

The texts of these articles read as follows:
"Articlez

I.The Tribunal shall be competent to hear and pass judgment
upon applications alleging non-observance of contracts ofloy-
ment of staff members of the Secretariat of the United Xations or of
the terms of appointment of such staff members. The words 'con-
tracts' and 'terms of appointment' include al1pertinent regulations
and rules in force at the time of alleged non-observance, including
the staff pension regulations.
2.The Tribunal shall be ope:
(a) To any staff member of the Secretariat of the United Nations
even after his employment has ceased, and to any person who
has sncceeded to the staff member's rights on his death
(b)To any other person whocan showthat he is entitled to rights
under any contract or tem of appointment, including the
provisions of staff regulations andes upon which the staff
member could have relied. STATEXIENT OF THE SETHERLANDS GO\'ERNYEST 95
3. In the event of a dispute as to whether the Tribunal has com-
petence, the matter shall be settled by the decision of the Tribunal.
4. The Tribunal.shall not be competent, however, to deal with
any applications where the cause of complaint arose prior to
I January 1950."

"ArticLe9

If the Tribunal finds that the application is well founded, it shall
order the rescinding of the decision contested or the specific per-
formance of the obligation invoked ;but if, in exceptional circum-
stances, such rescinding or specific performance is. in the opinion
of the Secretary-General, impossible or inadvisable, the Tribunal
shallwithin a period of not more than sixty days order the payment
to the applicant of compensation for the injury sustained. The
applicant shall be entitled to claim compensation in lieu of rescind-
ing of the contested decision or specific performance. In any case
involving compensation, the amount awarded shall be fixed by the
specialized agency participating under Article 12."propriate, by the

"Article9 (as amended)

1. If the Tribunal finds that the application is well founded, it
shall order the rescinding of the decision contested or the specific
performance of the obligation invoked. At the same time the
Tribunal shall fix the amount of compensation to be paid to the
applicant for the injury sustained should the Secretary-General,
within thirty days of the notification of thc judgment, decide, in
the interest of the United Nations, that the applicant shall be com-
pensated without further action being taken in his case ; provided
that such compensation shall not exceed the equivalent of two
years' net base salary of the applicant. The,Tribunal may, how- '
ever, in exceptional cases, when it considers it justified, order the
payment of a higher indemnity. A statement of the reasons for the
Tribunal's decision shall accompany each such order.
z. Should the Tribunal find the procedure prescribed in the Staff
Regulations or Staff Rules has not been observed, it may, at the
request of the Secretary-General and prior to the determination of
the merits, order the case remanded for institution or correction of
the required procedure. Where a case is remanded the Tribunal may
order the payment of compensation, not to esceed the equivalent
of tliree months' net base salary, to the applicant for such loss as
may have heen caused by the procedural delay.
3. In al1 applicable cases, compensation shall be fixed by the
Tribunal and paid by the United Nations or, as appropriate, by the
specialized agency participatiug under Article 12."

It follows from these provisions that if a contract of service
of a staff member of the United Nations has been terminated
without his consent, the Tribunal, ou his application, may decide
that the termination has been contrary to the contract or to the
pertinent regulations and rules, and order the payment of compen- STATEBIENT OF THE SETHERLASDS GOVERSZIEST
96
sation if the Secretary-General decides not to reinstate the staff
member in question. The Tribunalmay also at once a\vard compen-
sation in lieu of reinstatement if the staff member should prefer
this (according to the old text). and order compensation together
with the remanding of the case for institution or correction of
the required procedure according to the arnended text. The amount
awarded "shall be fixed by the Tribunal and $aid by the United
Nations". It seems logical that the General Assembly by adopting
these last words in its legislative capacity cannot have meant that

in its budgetary capacity it would be free to refuse to give effect
to an award. If an aurard made by the Tribunal "shall be paid by
the United Xations", it follo\vs that every organ of the United
Nations is iinder a legal obligation not to prevent the payment of
this alvard by the United Xations. Xo qualifications of this obliga-
tion can be found anywhere in the Statute of the Tribunal, nor in
any other relevant instruments. From the moment an application
under Article z of the Statute has been filed, no other body is
competent, the Tribunal deciding al1 disputes as to its own com-
petence (Article 2, paragraph 3 ; vide infva paragraph 4) and
delivering final judgments \vithout appeal (ArticleIO, paragraph z).

2. If any organs besides the Tribunal either could challenge a
decision of the Tribunal confirming its jurisdiction, or would be
free to refuse on any grounds to give effect to an award of compen-
sation (which would actually niean a limitation of the Tribunal's
powers), the Statute or any other relevant instruments would
explicitlyhave provided so. For in that case it would have been
established beyond doubt which organs are meaiit, the grounds
they mayact on, and theeffect of their decisions. Other international
organizations, wishing to have an appellate tribunal of a more
limited capacity, have laid down this limitation in the statute of
the tribunal in question. For instance, the Statute of the Adminis-
trative Tribunal of the International Labour Organization, as
adopted by the International Labour Conference on October gth,
1946, and modified by the said Conference on June 29th. 1949,
which-apart from a number of minor alterationcwas also in
force as the Statute of the League of Nations Administrative
Tribunal until October 31st, 1946, provides in Article XII :

"1. In any casein whichthe Governing Bodyof the International
Labour Officeor the Administrative Board of the Pensions Fund
challenges adecision of the Tribunal confirmingits jurisdiction, or
considersthat adecisionof the Tribunal isvitiated ayfundamental
fault in the procedurefoilowed,the question of the validity of the
decisiongiven by the Tribunal shail be submitted b the Goveming
Body, for an advisory opinion,to the Intemational ourt of Justice.
z. The opinion givenby the Court shall be binding."
Other intergovernmental organizations, according to the Annes
to the Statute of the Administrative Tribunal of the International STATEXEST OF THE SETHERLANDS GOVERSBlENT 97

Labour Organization, may recognize the jurisdiction of the Tribunal
subject to some adjustments including one with regard to Arti-
cle XII which, in cases affecting any one of these organizations, is
then mutatis mutandis applicable withoutthe addition ofparagraph z.
Thus, in these cases, and apartfrom any specific provisions to the
contrary, it is not the International Court of Justice which has the
last word in matters of jurisdiction and fundamental faults in the
procedure, but apparently the Executive Board of the international
organization concerned.
In the light of these diverging arrangements it seems justified
to conclude that if the General Assembly of the United Nations
should bave wished to reserve to itself the right to review judg-
ments of the Tribunal, it would have included a provision to that

effect in the Tribunal's Statute.
3. The conclusion that a true delegation of power by the General
Assembly to the Administrative Tribunal has taken place, is
confirmed by the legislative history of the Tribunal's Statute.
It is this history which Question I, referring to all the relevant
records, wishes to be taken into account as well. When the Adminis-
trative Tribunal of the League of Nations was established, it was
from the very outset the intention that the Tribunal should be a

true judicial body. In this respect the United Xations Tribunal
has been a continuation of the same principles, as shall be proved
later on.
Thc only experience gained so far in respect of an appeal to a
political body (viz. the case of Mr. M. F. Monod, who, in 1925, as
a staff member had appealed from a decision of the Secretary-
General to the League of Nations Council, in accordance with a
Resolution adopted by the Assembly on December 17th, 1920)
proved unsatisfactory. Already at this occasion the Council felt
obliged to refer the matter to an ad hoc commission of jurists,
stating in advance that it would adopt the conclusions of this
commission as its own decision on the case.
The conception of the Administrative Tribunal aç it was held
bythe majority of a special sub-committee of the Fourth Committee
of the Assembly, and eventually adopted by the Assembly itself

(Resolution of September 27th, 1gz7), appears from the following
quotations from the Sub-Committee's Report (League of Nations,
Oficial Journal, Special Supplement No. 58, Records of the 8th
Ordinary Session, Fourth Committce, 1927, p. 251 ff.) :
"The international status of the Leagiie prevents officiaisfrom
bringiiigactions in the ordinary courts to enforcethe terms of their
appointments. It is not, however, satisfactory that a class of em-
ployees amounting to several hundreds of persons and engaged
cm terms which are necessarily complicated and may give rise to
disputes as to their exactlegal effect should have no possibility of
Lringing questions as to their rights to the decision of a judicial
body. It is equally unsatisfactory for the administrations to be
69s STATEllEST OF THE SIJTHERLASDS GOYERS\IEST

both judge and party in any dispute as to tlie legal rights of their
officials,or for siich disputes to be referred to the Coun...Except
is to be esclusively a judicial body set up to dctcrmine the legalbunal
rights of officials on strictly legal groiinds.... The function of the
proposeù Tribunal will be to pronounce finally iipon any allegation
that the administrrition lias refuseà to givcrirofficial treatment to
whicli he was lcgally entitled, or has treatcd hirn anmaiiner which
constitutes a violation of his legal rights uiidcr his nppointment or
of the regulations applicable to his case, or, finally. has taken in an
irregiilar or improper manner a decision whicli \vas within his com-
petence....It will be seen thatthe Tribunal willbe the final authority
for the interpretation of the terms of an official'sppointment and
the regulations applicable to the official...The Supervisory Com-
mission tins considered the possibility of composing the Tribunal of
nominees of the staff and of the administration concerned, with a
neutral Chairman. lt has also considered the possibility of attaching
to it assessors or judges nominated by the administration and by
the staff. The first ofhese plans has been rejected because it was.
felt that the 'rribunal should I>ean entirely indel>endentand strictly
judicialbody (the italics are in the report). Although the second
plan may have advantages, the Commission felt tliat there were
decisivc rcasons against its adoption ....Xo provision for the revision
of judgmeiits of tlie Tribunal is inserted in the Statute. It is con-
sidercd that, in the interest of finality and of the avoidance of
vexatious procecdings, the Tribunal's jiidgments should be finaland
without appeal, as is provided in Article \'1, paragraph I...."
The minutes of the discussion of the Report in the Fourth ~om-

mittee (op. cit.stipra, pp. 3jf.) do not rcveal any departures from
this conception. The representative of India drew the attention
to the psychological aspect of the problem, observing that the
League of Nations \vas an organization endeavouring to encourage
arbitration in the international field whercas its own employees
had at present no tribunal to which they could appeal in disputes
controversial between them and the Secretary-General. However,
it does ~iot appear from this remark-consitlered in coiiiiection
with the Report-that the Delegate was conviriccd, or succeeded
in con\~iiicing the Committee, that the Assembly \\,as going to
create some machinery for arbitration in that special sense, which
has from time to time been accepted in the past and \vhich leaves
it to the final decision of any of the parties to determine whether

or not the Tribunal has departed from the tcrms of submission by
lack of jiirisdiction or escess of jurisdiction, has misinterpreted its.
function, has failed to apply the la\\, prescribed, or has made
errors in the application of this law, etc. On the contrary, the idea.
of a tribunal after the model of comparable institutions in some
nationaladministrations, making final aiid unchallcngeable decisions,
was already suggested in the Assembly at an carly stage wheii
during the 2nd Session the first Director-General of the Inter-
national Labour Organization, Albert Thomas, provcd the necessity. STATE.\IEST OF THE SETHERLASDS GOVERS.\IEST 99

of establishing a judicial body on the analogy of the Conseil d'État
in France.

4. The same analogy \vas mcntioned by the Chairman of the
Advisory Committee on Administrative and Budgetary Questions
of the United Nations, Rlr. Aghnides, when he opened the discussion
on the establishment of an administrative tribunal in the Fifth
Cominittee of the General Assembly of the United Nations during
its 4th Session in 1949. Presenting the views of a special advisory
committee of which he himself Iirid been Chairman and which hacl
completed a Report and Draft Statute as early as 1946,>Ir. Aghriides
observed that the vcry idea of an administrative tribunal \vas of
European origin, recalling iri that connection the part played in
c e by the Consei l'gtat. On the other hand, the Anglo-
Saxon countnes had never been vcry much in favour of the establish-
ment of an administrative tribunal, because it was an institution
which \\.as uiifamiliar to them (Summary Records, 187th meeting,

paragraph 47). Mr. Aghnides further recalled that such a tribunal
functioned in the League of Nations for twenty years and that
it had certairily increased the prestige andauthority ofthe Secretary-
Gcneral of the League by making it possible for any member of
thc staff to have recourse to an impartial judicial body on which
neitlier the Secretary-General nor the staff were represented. The
principle of the separation of powers had thus been vcry strictly
applied. Such were the ideas in the minds of the members of the
advisory committee whcn considering thc question, Rfr. Aghnides
stated. In this coiinection it may bc recalled what llr. Aghnides
declared again during the 6th Session at the 333rd meeting of the
Fifth Committee (January zznd, 19jz) when the Permanent Staff
Kegulations of the United Natioiis were being discussed (Summary
Kecords, paragraph 4) :

"The Secretariat \vas the esecutive which irnplemented the deci-
sions of the legislative body, namely the General Assembly. The
judiciary \%.athe International Court of Justice, but it dealt only
with conflictsbetween nations, iiot individuals. Its parallel, for the
staff, was the Administrativc Tribuilal, which was based on a
European conception comyl~rableto that of the Conseil d'fitain
France."
The same conception of the tribunal, recalling the arguments
from the League period, had already been laid down in the Advisory

Committee's report. The last paragraph of this report (Doc. A/gr
of October 16th, 1946 ; see also Gerieral Assembly, 4th Sessioii,
Committee V, Annex to the Summary Records, Vol. 1, 1949, p. 151)
reads as follows :
"The success of the League of Nations Administrative Tribunal
leads the advisory committee to believe that a United Nations
administrative tribunal, establishedlong the linesproposed, would
be a useful body for safeguarding harmony hetween the UnitedIO0 STATEZIENT OF THE NETHERLAXDS GO~ERS31ENT
Nations and its officials. Without in any way embarrassing the
authorities responsihle for the conduct of administration, it would
g,iveassurance to officials as to the protection of their contractual
rights. The United Nations is iiot suable in any national court with-
out its consent; nor can it be sued by an officia1in the International
Court of Justice. Ry creating a tribunal to serve as a jurisdiction
open to its many officialsofvarious nationalities, the United Nations
will be acting not only in the interest of efficientadministration,
but also in the cause of justice."

The reluctance, already meiitioned by the Chairman of the
Advisory Committee on Administrative and Budgetary Questions,
of some Anglo-saxon countries to accept the authority of an
administrative tribunal, became evident during the further discus-
sions in the Fifth Committee. The United States Delegation,
particularly, while recognizing the value of European legal systems,
was not entirely convinced of the necessity of establishing an
administrativetribunal at that stage. For that reason the Delegation
reqiiested that the examinatioii of the proposa1 to that effect
should be postponed sine die. The U.S. Delegation reserved the
right to suggest some amendrnents to the draft statute if the
Committee should decide otherwise (op. cit. supra, Summary

Records, pp. 19 f.). Because the Committee as a whole did not
show anv hesitation in its work on the administrative tribunal,
the ~nited Statc:s 1)clegarion ;ictually nio\,cd :im~riidmeiits aiining
at a modification of tliv iiidicial character and of the c:~i>;icitvof tlie
Tribunal aiid supporteci other relevant proposals. It proposed an
amendment to the draft of paragraph 5 of Article 3, to the effect
that a member of the tribunal could be dismissed for unsuitability
by a decision of a two thirds majority of the General Assembly
instead of by a unaiiimous decision of the other members of the
Tribunal, as provided in paragraph I of Article 16 of the Statute
of the International Court of Justice (if a member of the Court
"has ceased to fulfil the required conditions"). The United States
proposa1 was accepted in the ITifth Committee by 16 votes to 14 '

with II abstentions. As stated in the Report of this Committee
(Doc. Al1127 of November zznd, 1949, p. 6) :
"A number of delegations expressed strong objection to this
amendment on the grounds that it was a well-recognized principle
that such decisions should be esclusively within the power of the
judicial organ concemed. Moreover, the amendment might have the
effectofgiving the Tribunal a political character. The representative
of Norway, being of the opinion that this arnendment affected the
entire structure of the Tribunal's statute, reserved the right to
raisc the question again at the pleiiary meeting of the General
Assembly."
Actually a five-Power amendment, adopted in the plenary
meeting of the General Assemblv by 27 votes to 15 with 6 absteii-
tions, restored the original principle:no dismissal without a unani-
mous opinion of the other members of the Tribunal. STATEJIENT OF THE SETHERLANDS GOVERKMENT' 101

Apart from the question of the membership of the Tribunal,
the United States Delegation, during the discussion in the Fifth
Committee, also repeatedly emphasized that the Tribunal should
have no competence in disciplinary matters.
As far as questions of terminology may throw Iight on the Fifth
Committee's conception of the Administrative Tribunal, the
attention is drawn to an observation of the United States Repre-

sentative in the Fifth Committee during the 8th Session in 1953,
when the Committee was discussing the question of the effect of
awards of compensation made by the United Nations Adminis-
trative Tribunal. The United States Representative stated as
follorvs (United States Delegation to the General Assembly, Press
Release No. 18~7, December 2nd. 1953, p. 3) :
"In this connection, it is of interest to note that the personswho
serve on the Tribunal are 'members' and that a proposa1to call
thcni 'judges'was rejected by a vote of 22to g, with 7abstentions,
when the Tribunal was established in 1 49 Thus we are not dealing
with the binding decisionsof a court o?co:ordinate authority, such
, as the International Court of Justice. If wewere,the situation would
of course be completely different."

The rejected proposai to mhich the United States Representative
referred had been a Netherlands amendment, in keeping with
another rejected Netherlands amendment suggesting to call the
Executive Secretary of the Tribunal "Registrar". The restoration
of the term "judge", as used in the original draft of 1946, had been
opposed by the Unitcd States Representative in 1949 (not for the

purpose of emphasizing) that the decisions of the Tribunal were
no "bindiiip: decisions of a court of CO-ordinate authority", but
bcca~isc,iisihis r~.pr<,i~nt:iti\Ii:i<st~itetlexprcsil!.. hii l)t:I&tion
consitleretl thcit riic~iiil>crsliof) rlic ..\tliiiiiiistr;iti\.<~ Tribiinal
shouid be open to persons \&th administrative esperience and it
should not be thought that only jurists were capable of performing
those duties (Summary Records, 214th Rleeting, paragraphs IIj
and 122). The U.S. Delegation had proposed an amendment to
that effect, \\,hich was subsequently \rgithdrawn after it had been
decided that the members of the Tribunal \r.ould be appointed

by the General Assembly instead of by the International Court of
Justice as originally proposed. Nowhere, however, does it appear
from the Summary Records of the Fifth Committee that the majo-
rity, in following the United States oppositon to the use of the
word "judge", had in mind to change the fundamental conception
of an Administrative Tribunal as accepted in the League of Nations
(the Statute of that Tribunal did use the word judges) and as
reaffirmed in the preparatory documents of the Fifth Committee.
An amendment of the U.S.S.R. to replace the term Administrative
Tribunal bj7 the "less pretcntioiis" name of "Staff Claims Board"

had already beeii rejected by 19 votes to j, with 13 abstentions.
(Op. cit. st~p~a,paragraph 33.)102 STATEMEST OF THE SE'THERLASDS GOVERSJIEST
The provision, which is now paragraph 3 of Article 2 of the
Statute-"In the event of a dispute as to whether the Tribunal
has competence, the mattcr shall be settled by the decision of the

Tribunaln-and which in similar terms is to he found iii Arti-
cle II, paragraph 7, of the Statute of the Administrative Tribunal
of the League of Rations (in the latter case suhject to Article XII,
mentioned hereinbefore)-now the Statute of the Adminis-
trative Tribunal of the International Labour Orgaiiization-was
criticized twice in the Fifth Cornmittee during the 4th Session of
the General Assembly. rit the 169th meeting the Represeiitative
of the U.S.S.R. observcd, accordiiig to the Summary Records
(paragraph 15) :

"Article 2,paragraph 3, of the draft statnte provided that, in the
event of a dispute, the Tribunal should itself beompetent to decide
thc matter. The qucstiori of the limits of its campetcrice seemed
hardly for the Sribunal itsclf to decide, but for thc body which liad
niight be delegated to a siibsidiary body, siich 21sthe Advisoryuty
Committee."

The Chairman of the Advisory Committee oii Administrative and
Budgetary Questions, preferring to speak in his capacity as Chair-
man of the committee which had drafted the Statiite, replied to
the U.S.S.R. Representative as follows (paragraph 18) :

"The suggestion that the Tribunal nould not be the proper
authority to judge the limits of its omn conipetence was difficult
toiinderstand, since eveii coinmittecs normally cstablislicd their own
riilesof procedure and compi:tcnce. Moreover, should :Iclaimant
declare the Tribunal not coinpetent to hear his case, a long delay
might result before a decision could be obtained from the General
Asscnibly, which, in aiiy case, should not be bothercd with such
details. He hoped that the U.S.S.R. Representative \voiild iiot press
the point."
Indeed the U.S.S.R. Represciitative did not press the point.
Again the matter.of competence came up when, diiring the 214th
meeting, the Representative of Canada, referring to paragraph 3
of Article 2 of the Draft Statute, remarked that he would have

preferred such decisions to have beeri made by the General Asscmbly
ratlier than hy the Administrative Tribunal. The follo~viiigdiscus-
sion is quoted from the Siimmary Records (214th meeting, para-
6ra~hs 73-77) :
"MY. Lebeau (Belgium) was astoiiished at the sbggcstion of the
represeiitativc of Canada. Thi: United 'Jations had decided to set
up a judicial organ and it would be inconceivable, according to
regular legal procedure, for a political organ to decide on the com-
petence of ajudicial one. In the event of a dispute, it was undoubt-
edly for the Administrative Tribunal itself to settle the question.
Moreover, the Secretary-General had considered that the hppeals
Board-an organwith lessprestige than the proposed Administrative STATENEKT OF THE XETHERLAXDS GOVERS3IEKT 103

Tribunal ivould haie-had alrcady been given authority to settle
the request of the Chairman, hlr. Feller (Secretariat) explained that
it was an established rule in law that any tribunal was entitled to
settle the question of its competence itself. It was also an estab-
lished rule that al1the organs ofthe United Nations should decide
on their own competence in the first instance. It would, therefore,
be difficult to reserve that polvcr to the General Assernbly and, if
the Assembly wcrc to wield it effectively, its agenda would be
greatly overloaded.

MT. Aghïzides(Chairman of the Advisory Cornmittee on Adrninis-
trative and Budgetary Questions) asked the representative of
simply applied a long-established principle to the particular case
of the Administrative Tribunal.

Mr. A~zdren (Sweden) said that, if the Canadian suggestion were
followed, it would bc essential to set up complicated machinery
which had not yet bccn needed.
Mr. Jutras (Canada) said that he would not press his point."

Apparcntly the Committee, in dealing with the matter of corn-
petence in connection with the proposed wording of paragraph 3
of Article 2 had specially in tnind the case of a preliminary
objection. Nevertheless, the repeated coiitrasting of the Tribunal
as the judicial body with the Assembly as the political body
makes it clear that on the whole the Committee did not consider
the Assembly fitfor a typical judicial function, either in respect
of settling prcliminary disputes as to the competence of the Tribu-
nal, or as regards reiieiving final decisions of the Tribunal because
of alleged lack of competence. This had been the established
opinion since the days when in the League of Nations the Council
as a political organ for scttling disputes between thc Organization

aiid the individual staff mcmbers liad been replaced by an Adminis-
trative Tribunal.
. 5. Considering now the text of the Statute in the light of its
legislative history, the conclusion seems unavoidable that it has
been the will of the Legislature-in the present case the General '

Assembly-to set up a true judicial body as it is understood in
thc constitutional law of civilized nations. The examples derived
from national public laiv and referred to throug'hout the discussion,
as mell as the general principles mentioned, such as the separation
of powers, givc this conclusion sufficiently support. Thcre is no
reason to assume that international organizations, because thcy
are crcated by treaties and because their Statutes are products
of international law, in their interna1 functioning could not be
governed by a kind of law whose structure bears the closest resem-
blance to certain parts of national public law.
The Kules of Procedure of the General Asse~nbly of the United
Nations, for instance, do not constitute an international treaty'"4 STATEAIENT OF THE SETHERL.4XDS GOVERNBIESI
(though created by a body which derives its power from an inter-
national treaty), but an administrative regulation brought about

by a majority vote according to normal parliamentary practice
and only to he understood and applied with parliamentary patterns
in mind. Procedures in the matter of budget have likewise followed
the development which occurred in many national States. In the
same manner a public body like the United Nations employing
thousands of officials has not got away from developiug adminis-
trative law governing the relations between the Organization-
in this instance mainly embodied in the authority of the Secretary-
General-and the individual officials. As nas stated above (para-
graph 4). Anglo-saxon tradition only reluctantly accepted this
development. On the other hand, it was recognized that not only
the weak position of the international official because of his being
prevented from hringing actions in the ordinary courts, but also

the absence of a political protection comparable with such existing
in some national States, should lead to special measures of judicial
recourse. To quote from the statement by the Representative of
the United Kingdom during the8th Session of the General Assembly
in the 423rd meeting of the Fifth Cominittee on December gth,
1953. when the Committee considered supplementary estimates
for the financial year 1953 relating to the payment of awards of
compensation ordered by the Administrative Tribunal in the case
of some eleven staff members nhose appointments had been termi-
nated during 1953 (United Kingdom Delegation to United Nations,
Speech by Sir Alec Randell in the Fifth Committee, Administrative
Tribunal Awards, pp. z f.):

"In the event, homever, al1doubts and hesitations expressed at
that time were overcome, and after the Soviet proposal that 'the
present Statute may be amended by decisionsof the General Assem-
bly' had been passed by 33 votes to 1, the whole Statute was
approved by 39 votes to 2 with 2 abstentions. Interesting though
these historical reflections may he, this is the most important fact,
that practically the whole Assembly agreed on setting up the Tri-
bunal and giving it the functious defined in its Statute ....1 am
bound to admit that subseqiient events have revived some of the
carlier doubts or uncertaintie...To this, Mr. Chairman, 1 feel we
must accommodate ourselves in such a Youngorganization, which
must. so to speak, make up its own traditions as itgoes. Perhaps 1
could make.clearer what 1 niean if 1 could be allowed to refer to
Ourowngovemment in Great Rritain. 1 think it may fairlybeclaimed
that inno other country do permanent public servants feel greater
security, and yet there is no judicial orgal recourse for them from
the decisions of their superiors. They rely on the wisdom and
those superiors will invariably associate their political chiefs witht
them in any important administrative decisions they may make ;
and the political chiefs can, of course, be questioned and attacked
in Parliament." STATEXIEST OF THE SETHERLASDS GOVERXJIEST 105

These and similar were the considerations conducive 'to the
establishment of a truc and independent judicial organ passing
binding judgments in the last instance. the Administrative Tribunal
of the United Nations. It folloivs that there is no reason to give
a narrow interpretation to the Statute, where it has conferred
power on the Tribunal, and to assume that other, particularly
political, organs, to which such power has not been explicitly
granted, would be entitled for some reason to reject the judgments
of the Tribunal. For this wuld make the United Nations both
judge and party in its own case, a position which was repeatedly
repudiated during the preparatory discussions. It is well known
and has already been recalled here (suera, para. 3) that in the long
history of international arbitration parties from time to time have
brought themselves in that position by rejecting an award they did

not like. It does not seem necessary to enter here into the question
in how far any legal grounds for doing so are generally recognized.
In this connection one need oiily draw the attention to the most
récent contnburion to the problem as contained in the Report of
the International Law Commission of the United Nations, covering
the work of its 5th Session in 1953 (Doc. A/2456). In its Draft
Convention on Arbitral Procedure, the International Law Commis-
sion mentions threc grounds on which the validity of an award may
be challenged by eithcr party, namely excess of poners, corruption
and serious departure from a fundamental rule of procedure, on
the part of the tribunal (Article 30). But there would be little point
in recognizing these grounds if not at the same time machinery
would be provided in order to decide whether or not in a certain
case these grounds are invoked rightly ; leaving this to either party
would deprive the aurard of its binding and final character. This

is what the International Law Commission says in its comments,
\\,hile proposing in Article 31 the International Court of Justice
as the competent judicial body to declare, on the application of
either party, the nullity of the award on any of the mentioned
grounds (paragraph zj) :

"However, as past experiencehas shown, these essential remedies
-unless accompanied by machinery ensuring the impartial ascer-
tainment of the existence of the reasons invokcd for the revisorn
the declaration of the nullity of the award-may render ineffective
the legal obligation of a final settlement of a dispute throughi-
tration."
This argument is even more applicable to the final settlement
of administrative disputes between the United Nations and its

individual officiais. Here the protection of State sovereignty by
way of a narrow interpretation of the powers conferred on the
Tribunal may be left oiit of consideration. No dominating interests
of States were involved when the >lembers of the United Nations
established the Administrative Tribunal as a court of final and106 STATEYENT OF THE SETHERLASDS GOVERKIlEST
bindiiig dccision in the last instance. No nioderii constitution
woiild permit the lcgislature to impair the work of a judicial body
by passing legislation having retrospective effect. It \vould be a

departure from a general principle of law, recognized cven in coiiii-
tries without a written constitution rigidly defining the respective
competence of the courts aiid the legislature. This \\,as rightly
observed by thc Representative of New Zealand during the discus-
sion in the Fifth Committee in 1953, pre\~iously mciitioned (New
Zcalaiid Dclegation to the Gcncral Assembly of thc United Nations :
Staternent on Personnel Policy by llr. J. V. \Vilson in the Fifth
Conimittee, j December 1953, pp. z f.):

"There is of course nothing to prevent the Assembly deciding to
amend the powcrs of the Trihiin:il ifthey are fourid to be excessive.
Indeed we have heen doing this during the pst few days. Never-
theless any interference with awards that have alrcady becn made
is, it appears to lis, save iii the most exceptional cases, a denial of
jiistice andndeparture from principle.
The principle that legislation should not be rctroactive is one
xvhichis firmly entrenched in most niunicipal systems of law. 3Iay
1 compare tlie relationship hetween Assembly and Tribunal with
the situation in those couiitri<:swhich do not have a fised constitu-
tion rigidly definingthe respective compctcnce of the courts and
the legislatiirc. In my own couiitry, for instance, Parliament is
sovcrcign ;it can make or iinrnake any law pst or future. It can
change the composition aiid coni]>etenceof oiir coiirts overnight.
But it would be a most gr:t\.e decision for Parliainent to use that
power to pass legislation having retrospective efiect and depriving
courts."ais of the benefit of judgrnents they Iiad been given in tlie

Incleed, thc General Assembly lias the right to abolish thc Tribii-

na1 just as it had the right to establish it, it has thc right to change
the law \\,hich the Tribunal h:is to apply including the Statute
itself, but a right the General Assembly does not eiijoy is the right
to detract from tlielam as applied by the Tribunal.This has nothing
to do with the qiicstion in ho\\. far the Tribunal, because it bas been
established by the tlssembly, in:iy be considercd a siibsidiary organ
as distinct from the principal orgaiis of the United Nations in the
sense of Article 7 of the Charter. The Assembly appoints the mem-
bers of this "subsidiary orgari", but it cannot dismiss thesemem-
bers on its owii accord and without amending tlic Statute. The
irremovability of judges has long been considered aii implication
of the priiiciple of the separatioii of po\vers, in the present case

betveen the Assembly and its "subsidiary organ", the Adminis-
trative Tribunal of tlie United Nations. Moreover, if the Tribunal
\iere only a subsidiary organ of the General tlssembly in the usual
sense, it could not be untlerstood how it coiild function at the
same time as an Administrative Tribunal of some Specialized
Agencies. . STATEZIEST OF THE SETHERLASDS GOVERSAIEST IO7
It seems difficult, thercfore, to apply to the judgments of the
Administrative Tribunal of the United Nations principlcs which
are different from those applicd to the final judgments of national
courts. No grounds have been found on which the General Asscmbly

could base the right to refuse to give.effect to au award of compen-
sation made by that Tribunal in favour of a staff membcr of the
United Nations whosc contract of service has been tcrminated
ivithout his asscnt. Nor are such grounds mentioncd in the Statute
of the Tribunal and iri any other relevant instruments thcy were
not considered by the General Assembly in settiiig up the Tribunal,
as far as appears from the relevant records.
6. Not having fourid anything but a negative answer to question

(1), the Netherlands Govcrnmciit do not feel obliged to make
many observations as to question (z), which is as follows :
"If the answcrgivenby the Court to question(1)is in the affirma-
tive, what arc the principal grounds upon which the Geiieral
Assembly could lawfiillyexercisesuch a right?"

During the above-mentioncd discussion in the Fifth Committee
in 1953, it was askcd what to do if the Tribunal should have
awarded compensations amounting to millions of dollars. We
do not think that it has been the intention of the General Assembly
to confro~it the Interiiational Court of Justice with absurd s~ippo-
sitions. They might as well bc put fonvard in conncction ~vith
national courts without actually promoting the understanding of
thc functioning of lcgal institutions. The real problem is ho~v
conflicts as to the iiitcrpretationand the application of the law,
. as they occur in normally functioning constitutional organizatioris,
are solved in justice and good faith. Therefore WC cannot accept
as a relevant lawmaking precedent what happened during the
zrst Session of the Assembly of the League of Nations in 1946
where the League \Iras dissolved ailcl where the Asscmbly refused
to give effect to 13 juclgmentsof thc Administrative Tribunal of

the League (16 delegations votcd in favour, 8 against, 5 abstained
and 4 were absent).
ils far as the facts are conccriied, the situation is well charac-
tcrized in the statemcrit of the Representative of France spcaking
afterthe Representative of the United States at the 420th meeting
of the Fifth Committce during the 8th Session of the General
Assembly of the Unitcd Nations (SummaryRecords, Deccmber 5th,
1953) :
"MY. Gauem (France), while disclaiming any capacity to pro-
nounce upon the legal aspects of the United States Representative's
statement. wishedto correct him on a matter ofhistory. The United
States Representative had referrcd to the 'precedent'established by
the decisionof the final Assemb?).ofthe LeagueofNations, meeting
in 1946,not to give effectto the decisions ofthe League of Nations
Administrative Tribuniil. In fact there could be no coml~arisori108 STATENEST OF THE SETHERLASDS GOVERSZIESl
between the circumstances in which the League of Xations Assem-
bly's decision had been taken in 1946 and those in which any deci-
sion might be taken by the United Nations General Assembly at
its current session. A special Assembly of the League of N t'a ions,
convened three months after the war had started, in December 1939,
by which time it had become quite clear that not enongh contribu-
tions would be received to make it i~ossibleto maintain a full
Secretariat, had requested the Secretaj-General to ?duce his staff
and had taken a special decision reducing the requisite period of
notice of dismissal from sir months to onemonth and extendine the
penod over which compensation might be paid from one yeir to
four years. The majority of the members of the Leagne Secretariat
affected had bowed to that decision. A mere handful had appealed
against the Assembly's decision as a violation of their rights. The
Administrative Tribunal had met to consider that appeal only in
1946.and then only in very special circumstances, for the Secretary-
General of the League had contended that the Tribunal was not
competent to ovemde an Assembly resolutioii. The League's Secre-
tary-General had not atte~ided the session of the Tribunal at which
the latter Iiad decided in favciurof the staff members concerned. Its
decision had in effect challeiiged the Assembly's decision and the
latter had accordingly voted not to give etiect to the Tribunal's
decision."

.As to the Iégal provisions involved, reference is made to the
recapitulation contained in the Report of the Supervisory Com-
mission on the work of its 99th Session (Leagiie of Nations, Oficial
Joz~rnal, Special Supplement No. 194, 1946, p. 162) :

"By a Resolution taken on December 14th. 1939, the Assembly
decided to reduce from six months to one month the period of notice
of termination of contract iii the case of permanent officials, pro-
vided for in Article 18of the Stati IZegulations of the Secretariat
and Article 19 of the Staff Regiilations of the International Labour
Office,and to spread over a period of four years the payment of the
compensation due on temination of appointment (Article 73 of the
Ofice Regulations). Twelve officials of the Secretariat and Laboone
official of the International Labour Onice, whose contracts were
terminated and to whom the two Administrations applied the above
decisions, complained to the Administrative Tribunal, maintaining
that it was not applicable to thein, as they held contracts granted
before October rgth, 1932, which were not subject to the provisions
of Article 30 bis(Secretariat) aiid of Article 16 a (International
Labour Onice) of the Staff Kegiilations and could not therefore be
modified by the Assembly.
In a series of judgments delivered on February 26th. 1946, the
Administrative Tribunal pr<inounccd that the Administrations of
tlie Secretariat and of the 111ternation;ilLabour Office had urrong-
fully applied to the 13 complainants the amendment to the Staff
Kegulations contaioed in the Assembly Resolution of December
1939, since 'it is impossible to entertain the assumption that the
:\ssembly intended by its Resolution of December 14th, 1939, to affect acquired rights without expressly so stating'. The Supervisory
Commission, on whose proposal the amendments in question were
adopted by the 1939Assembly, desires to confinu that it was the
undoubted intention of the Assembly that the decisions therein
emhodied should apply to al1officiaisof the League and not only
to those whose contracts expressly reserved the possibility of their
modification bv the Aççemblv.The Secretarv-General and the Direc-
tor of tlie ~ritcmatioiial I.al;oiir Ofliiiappl\ing tlir iltcisions to
the coml~l:tin;ints.Iin\.cthereforc ~orrectl\~iiiterliretcd ttic Assxil>l\.
resolution.
........................
As an acceptance of the findings of the Administrati\re Tribunal
would put its decision above the authority of the Assembly. the
Supervisory Commissioncouldnot take the responsibility ofadvising
the Acting Secretary-General and the Acting Director of the Inter-
national Labour Officeto apply the jiidgments ofthe Administrative
Tribunal. It has accordingly advised the two Administrations to
take no action on the pending consideration of the whole question
by the Assembly."

So what-had happened was that the Tribunal, following a method
often used in reconciling conflicting provisions, had applied a
principle of construction ("it is impossible to entertain the assump-
tion that the Assembly intended to affect acquired rights without
expressly so stating") and had given an interpretation to the
contracts, regulations and resolutions, particularly the Assembly
Resolution of December 1939, which differed from the one the
Assembly was prepared to accept after the Supervisory Com-
mission and a sub-committee, especially selected to study the
problem, had given their opinion. The majority of the Assembly,
under the stress of necessity, followed this mode of reasoning :
we have been the creators of the applicable law, so we better than

anyone else know what our real intention was. "An acceptance
of the finding of the AdministrativeTribunal would put its decision
above the authority of the Assembly." It is the considered opinion
of the Netherlands Government that the majority of the League
Assembly in 1946 made an error, not in the substance of its inter-
pretation but in putting its interpretation above that of the
Tribunal. For it \vas the specific function of the Tribunal, as ,of
al1 tribunals, to decide on conflicts of interpretation as adopted
by various interested quarters. That the Assembly would be wrong
in rejecting the judgments was stated already at that time by
the Netherlands Representative in the 6th meeting of the Second
(Finance) Committee of the Assembly on .4pril qth, 1946 (op.

ciL, p. 131) :
"M. Fra~i.ois ~Xetherlands) stated that. in the ooinion of the
Settierl:inds Gi)i.ernmc.ntlit1.cngueof S\'ÿlioii\\.asboiind to cary
oiit the :\dmini<irati\e Tribiiii;ii'sdccisifti~Siil>-Coiiimittews
of oi>inionttiatttivTrihuiial's decisioii \vas at f;iiI)iithxt argu-
ment could not be advanced, because one of the fikt principle;ofII0 STATEYEST OF THE SETHERL.4SDS GO\7ERS>lES'i

justice was that nobody coulii be at the same time judge and party
to litigation. Fortiinately,the Sub-Committee had refrained from
invoking the argument that the Tribunal was not competent, for
incornpetence h:~dalways been invoked hy States which wishcd to
was further of opinion that the action taken by the Secretary-e
General was justified by a decision of the Assembly and that being
so the Tribunal should have dismissed the claim. It \vas not for the
Committee to examine the nierits of the award, for the Leaguc of
Xations, even if it were sovereign, usasitsclf a party to the dispute.
An appeal might have been lodged if the Statute providrd for such
recourse, but, in thc circumstances, it only rcmained forthe League
ta bow to the decision of the competent jiidges. The execution of the
judgment would be a hcavy burden on the I.criguc, hut it was better
to lose money thaii to injure iiot only tlic prestige of the League but
also the cause of international jurisdiction.
........................

The Xetherlands delegatiori took the view tliat good sense should
be applied in settling international affairs, but it was precisely good
sense which demaiided that an organization like the League of
Xations should set an esample in the mritter of respecting an award,
even ifit considercd the decision unjustified."

The relevant records and reports sometimes give the impression
that the real issuc in 1946 was the question whcthcr or not the
Asscmbly had the right to modify, or in any way affect, the tcrms
of older appointments iii which no provisa reserving such right
had been made. 13ut tliis was not the cluestion the Tribunal had
to answer. The Tribunal only examined the question whether the
Kesolution of Decernber 1930 had affected the older contracts
not containing the said proviso. The Tribuiinl came to the con-
clusion that it had not, and its answr may be interpreted in this
\vay that the Assembly in 1939 in its legislative capacity did
iiieffective work, though it was not invalid. That the legislature
in a modern international organizatiori can modifv in principle
the statutory elemcnts in it; relations -4th its staff membérs
is another confirmation of the ooinion ex~lained hereinbefore

(para. 5) that such organizations in their iiiternal functioning are
often governed by a kind of law whose structure bears the closest
resemblance to certain parts of national public law. It is with
approval, therefore, that one passage from the rnajority part of
the report of the Sub-Committee of the Second Committee of the
Assembly can be quoted (op. cit., p. 262) :
"Xo superior power exists to release the League from its contrac-
tua1 obligations,ifsuch obligations exist, howcver grave the emcr-
gency, unless it bc the League itseli. Rut the League is not to be
compared with a private coinpany ;its status and powers are sui
generzs,although they fa11to be considered in the light of those
general principles of jlubiic law and administration which to a
greater orlesser dcgree are to be found inthclegislation ofal1States." ST,4TE>IEST OF THE SETHERLASDS GOVERKMEXT 111

The unassailable character of a court like the Administr at'ive
Tribuiial of the League of Nations or of the United Xations is
also to be considered in the light of these general principles of
public law and administration.
The decision of the League Assembly at its final session not
to give effect to the judgments' of the Administrative Tribunal
cniiiiot be taken as a la\\,-making precedent because, apart from
certaiiilegal considerations, the majority of the Assembly \\.as
let1 by extra-legal motives. This is well illustrated by the esplana-
tion of the majority view at the beginning of the discussion in
the Secoiid (Finance) Committee (alinutes of the 6th meeting,

09. cil.,13.130) :
"Sir Hnrtley Sliawcross (United Kingdom), Rapporteur of the
Siib-Committee, said that althoiigh he \vas a la\vyer he approached
thismatter on the hroad basis of what \vas politic and nght rather
than on the basis of what might be strictly in accordance ivith the
law. There \\.asin fact no law \\.hichapplied to a case like this. There
was no other institution like the League of Xations ;there aas no
precedent for such a problem, and there ivere fewbasic principles of
1;iiiirhiclihad any direct application to its sollition. Fortunately.
howevcr, lawyers werenot always compelled to look at matters with
complete disregard of the principles of common sense. If the Com-
mittee tried to apply some strict rule of law, it would doubtless get
an infinite variety of opinion and endless debate. Hence he hoped
tliat theatter \\.ouldbe discussedfrom the broadest point ofview."
7. Thcrc have been no indications, so far, that a majority of

the Geiicral Assembly of the United Nations is prepared to take
the decision of the League Assembly of 1946 as a precedent on
\\,hich the General Assembly might base the right to refuse to
takc action on judgments of the Administrative Tribunal.
The first tirne, since 1949, that the discussions of the General
t\ssembly touched the question of the authority of the Tribunal,
\vas in connection with the drawing up of the Permaiieiit Staff
Kcgulations in 1952. Thc Administrative Tribunal in its Judgment
No. 4 in the case of Howrani and 4 others (September 14th. 1951 ;
AT/DEC/4) had dccidcd, as far as the powcr of the Secretary-
Gcneral with respect to the termination of temporary-indefinite
contracts was concerned, that "a statement of cause, if requested
by the terminatcd ernployee, in terms sufficiently specific to
facilitate proceedings before the Appeals Board and the Adminis-

trative Tribunal, is an essential element of due process in the
termination of ternporary-indefinite contracts ...."and that "while
it is not for the Tribunal to Gbstitute its judgment for that of
the Secretary-Gcncral with respect to the adequacy of the grounds
for termination stated, it is for the Tribunal to ascertain that an
affirmative finding of cause which constitutes reasonable grounds
for termination has bccn made, and that due process has been
accorded in arriving at such an affirmative finding" (p. 17). InII2 STATE3IEST OF THE SETHERLASDS GOVERS.\IEST
view of that decision the Secretary-General altered his original

draft of the Permanent Staff Regulations as containcd in annex B
of document Al1360 to this effect that temporary-indefinite appoint-
ments might be terminated by the Secretary-General at any time,
if, in his opinion, such action \\rould be in the interest of the
United Nations (as now provided in Article 9.1 (c) of the Staff
Regulations). It is clear that the Secretary-General did not agree
with the Tribunal's interpretation of the intention of the General
Assembly, when in the Provisional Staff Regulations it gave the
Secretary-General the right to terminate temporary appointments.
In his Memorandum of January 16th, 1952 (Doc. A/xgsz/Add.x,
paragraph 6), the Secretary-General observes in connection with
his altered proposal of Regulation 9.1 : "It is evident from the
records of the General Assembly and the Advisory Committee

that it was always intended that the Secretary-General has the
right to terminate temporary appointments freely and in. his
discretion ...." Apparently the Chairman of the Advisory Committee
and some delegations agreed with the implied opinion of the
Secretary-General that the Tribunal had given an erroneous inter-
pretation to the Assembly's intention. Nevertheless, during the
whole discussion of the item of the Permanent Staff Regulations
in the Fifth Committee no suggestion \vas made to put the Assem-
bly's interpretation of its own intention above the interpretation
of the Tribunal. On the contr;lry, scveral speakers in the debate
felt the need of expressly confirmiug the unassailable authority
of the Tribunal in interpreting the texts. As quoted from the
O@cial Records of the Fifth Committee during the 6th Session,

the Representative of Canada said in opening the discussion
(P. 273) :

"\Irith reference to certain cases considered by the Administrative
Tribunal in the summer of 1951, everyone should try to remember
that the Tribunal had been created by the General Assembly as a
body against whose jud ments there was no appeal. If those judg-
ments where questionef now, the Committee would sa lower its
confidence in the Tribunal, in its good judgment and in the integrity
of its members. At the same time, it should be pointed out that
although the Tribunal's task \vas ta interpret past decisions of the
General Assembly it had not the power to bind the Assembly for
the future. It would be no slight ta the Tribunal if experience led
the Fifth Committee to conclusions at variance with the Tribunal's
past rulings. It would, however, be harmful to reopen past cases or
to iiiterject into the Committee's discussionsconsideration of cases
which might now be peiiding before the Tribunal. He felt sure that
the principles which had alaays heen the foiindation of an effective,
independent and respected judiciary would be borne in mind by the
members of the Fifth Committee. He urged the Committee ta express
its confidence in the judicial machinery which had been set 11pand
leave it to function unliampered in its oivn field." STATEllEST OF THE XETHERLAXDS GOVERNYEXT 113

The representative of Columbia observed (p. 274) :
(The Tribunal) "would not be in a position to give correct and
impartial decisions unless it was in possession of al1 the relevant
information. If the Secretary-General felt unable to disclose his
reasons in certain cases, he must be prepared to run the risk of
decisions against hiniself. It would then be for the General Assembly
to decide whether or not to vote the necessary appropriations to
carry the Tribunal's decisions into effect. The Coliimbian Delegation
was always preparcd to vote for such appropriations, considering
that any other course was incompatible with the elementary prin-
ciples of justice and morality."

The representative of the Union of South Africa (p. 277)
"supported the Canadian Representative's remarks concernin the
Administrative Tribunal. It was clear from the statute Of the
Tribunal that it was a body whose authority should not be ques-
tioned. However, as in any national system, when a clash occurred
between the legislative and the judiciacy authorities, it was the
duty of the legislative body-inthe present caseheFifthCommittee
-to decide whethcr the interpretation given by the judiciary was
consistent with the meaning of the rules as intended by those who
had framed them. If not, the legislative body should take steps to
bring the mles into line with what had originally been intended."
The representative of India said (p. 288) :

"With regard to regulation 9.1 India was fully in agreement with
the opinion expressed at the previous meeting by the Canadian
Representatire. Toalter the present provisionsconcerning the Admin-
istrative Tribunal would not in any way discred?t the latter's work.
Itwas simply a question of making clear that in the last resort it
was for the Tribunal to interpret the intentions of the General
Assembly."
The Secretary-General (p. 292)

"wished to clear up a misunderstandiug that appeared to have
arisen. He had never challenged the decisions of the Administrative
endeavoured to apply them, even dowii to the smallest detail.rary,
Respect for judicial decisiowas strongly entrenched in the Nordic
countnes' traditions and was likewise the policy followed by the
Secretary-General. But he had occasionally had doubts, both in his
ministerial capacity and as Secretary-Gcneral of the United Nations,
as to the interpretation of certain legal provisions. His approach to
the General -4ssembly was precisely in order to obtain the requisite
clarification and guidance."

The Chairman of the Advisory Committee, in a statement from
which an earlier passage has already been quoted (paragraph 6).
recalled that (p. 296)
"he had consistently defended the principle of a tribunal which must
judge in accordance with laws established by the General Assembly
and against whose judgments there must be no appeal. Perhaps the

9114 STATE3IEST 01: THE XETHEHI.:ISL)S GOVERS3lENT

for theChairman of the Advisory Committee agreed withthe viewsts,
concemingthe Tribunal, expressedby the Canadian Representative,
with whom the Indian Repreientative apparently also agreed."

These were al1 the remarks during this discussion in the Fifth
Committee made in direct relation to the position of the Adminis-
trative Tribunal. Thcy were summarizcd in the Report of the
Committee as follo!zrs(Doc. A/z1o8, paragraph 7) :

"A number of references were made to the importance of the
Administrative Tribunal in connection witli staff rights and, while
the independenceof the Tribunal and the hinding nature of its judg-
GeneraleAssembly to fix, andsifnecessary clarify, the basic regula-
tions and conditions of staff appoiiitments which the Tfibunal, in
accordancewith its statute, might then be caiiedupon to interpret."

It may be observed that the representative of the Enited States
iii his main statement at the 332nd meeting did iiot make any
objections to the views contained in the passages quotcd.
The second time since 1949 the General Assembly had an oppor-
tunity to pronounce on the question of the authority of the Admin-
istrative Tribunal \Iras in connection \pith a series of judgments
in the case of some eleven staff members \\.hose appointments
had been terminated during 1953 (ATIDECI18 and following).

The Secretary-General and the Advisory Committee had proposed
to vote the supplementary estimates for the financial year 1953
as they related to the payment of a\vards of compensation ordered
by the Administrative Tribunal, but this was opposed by the
Representative of the United States in the Fifth Committee during
the8th Session of the General ilssembly. In his statement, opening
a discussion which occupied the Committee during several meetings,
he developed the following points :

I.The Generai Assembly bas the legal right and responsibility
to review and to refuse to give effect to decisions of the
Administrative Tribunal.
z. The Tribunal has misconstrued its role and ha exceeded its
proper ponrers.

3. The Tribunal has made serious errors of law in its application
of the Staff Regulations.
4.The Tribunal has made errors of judgment and fact in
calculating the amount of the awards.

The discussion, thus started, did iiot yield any definite results
because at a certain stage the Committee decided to submit to
the General Assembly a proposa1 to request an advisory opinion of
the International Court of Justice on some general legal questions
involved. These are the questions with which the present statement
is dealing. Nevertheless, 30 delegations besides the United States STATEZIEST OF THE SETHERLASDS GOVERS3IENT Ir5
delegation took the opportunity to pronounce on the legal prin-

ciples involved, particularlyas tothe relation between the Assembly
and the Tribunal. Of those 30 delegations 7 agreed that the General
Assembly had the legal right to review and to refuse to give effect
to decisions of the Tribunal on similar groiinds as developed
by the United States delegation under points 2-4 (China, Australia,
Argentina, Cuba, Liberia, Dominican Republic, Turkey). The
other -3 delegations (Xetherlands, Columbia, Uruguay, Canada,
United Kingdom, New Zealand, Yugoslavia, Syria, Poland, India,
G.S.S.R., Belgiurn, Sweden, Denmark, Brazil, Czechoslovakia,
France, Nicaragua, Lebanon, Mexico, Pakistan, Egypt, Chile)
denied the alleged right of the Assembly, partly because they
did not agree that any of the grounds mentioned under 2-4 were
relevant, partly because they denied that, even if these grounds
had presented thernselves, the Assembly would have the alleged
right.
Therefore, in this disciission no indications are to be found that
a majority of the General Assembly is prepared to consider the
decision of the League Assembly of 1946 a precedent, as suggested
hy the United States Kepresentative in his opening statement.

Some delegations expressly rejectedthe 1946 case as a precedent.
However, it did not always become clear for what reasons the
precedent !vas rejected : because of the abnormal situation esisting
in 1946, because the Trihunal in 1946 really had gone beyond its
powers in contrast to the situation in 1953, or hecause the League
Assembly in 1946 had been wrong. Thus the French rejection, as
appears from the statement quoted supra paragraph 6, was based
on the first and the second reason. The rejection by the Xetherlands
\vas based diiring the discussion in the Fifth Committee as well
as in this docomeiit on the first and the third reason.

From the ahove it may be concluded :.
I. that no qualifications can be found to the legal obligation
of the General Assembly, not to prevent the payment of an award

made hy the Tribunal ;
2. that if the Generai Assembly should have wished to reserve
the right to review judgments of the Tribunal, it would have
included a provision to that effect in the Tribunal's Statute ;

3. that the League of Nations conceived its Administrative
Tribunal as an entirely independent and strictly judiciai body,
pronouncing final judgments without appeal:

4. that the debates on the Statute of the Administrative Tribunal
of the United Xations make it clear that the General .4ssembly
\vas not considered fit for a typical judicial function-either in
respect of settling preliminary disputes as to the competence of116 STATEYEKT OF THE NETHERLANDS GOVERXMENT

the Tribunal, or as regards reviewing its decisions on the substance,
because of an alleged lack of competence ;

5. that within the organization of the U.N. a natural develop-
ment of administrative law has led to special measures of judicial
recourse to which the same principles should be applicable as to
the final judgments of national,administrative courts ;

6. that after the above-mentioned negative conclusions as to
question I,question 2 does not give rise to special observations-
only that the Netherlands Government cannot accept as a binding
precedent the refusa1 of the League Assembly of 1946 to give
effect to 13 judgments of the Administrative Tribunal of the
League of Nations ;

7. that the debates in the United Nations confirm the unassaila-
ble authority of the Tribunal to interpret resolutions of the
General Assembly, \\,hich the latter could oiily modify for the
future if it disagrees with the interpretation given by the Tribunal. 7. EXPOSÉ DU GOUVERNEMENT HELLÉXIQUE
SUR LA QUESTION DES EFFETS DE JUGEMENTS
DU TRIBUNAL ADMINISTRATIF DES XATIONS UNIES

ACCORDANT INDENNITE

1.- Les questions poséespar l'Assembléegénéraledes Nations
Unies à la Cour de Justice internationale sont les suivantes:
a) L'Assembléegénéralea-t-elle le droit, pour une raison quel-
conque, de refuser d'exécuter un jugement du Tribunal adminis-

tratif, accordant une indemnité à un fonctionnaire des Nations
Unies à l'engagement duquel il a étémis fin sans l'assentiment
de l'intéressé?
b) En cas de réponse affirmative à la question susmentionnée,
quels sont les principaux motifs sur lesquels l'Assemblée générale
peut se fonder pour exercer légitimement ce droit ?

II.- Pour répondre à ces questions, il convient d'examiner
tout d'abord la condition juridique du Tribunal administratif des
Nations Unies dans le cadre de cette Organisation.
Le Tribunal administratif en question a étécréépar une résolu-
tion de l'Assembléegénérale desNations Unies (résolution 351 (IV)
du 24 nov. 1949) .l est compétent pour connaitre udes requêtes

invoquant l'inobservation du contrat d'engagement des fonction-
naires du Secrétariat des Nations Unies ou des conditions d'emploi
de ces fonctionnaires, et pour statuer sur lesdites requêtii.
Étant donné que l'organe en question n'a pas étécréépar une
convention internationale mais par une résolzctionde cette der-
nière, sa création doit, nécessairement, êtrefondée sur l'exercice
d'une des fonctioiis de l'Assembléegénérale.Or, il n'existe qu'un
seul article dans la Charte permettant à-l'Assemblée générald ee
créer des organes.Il s'agit de l'arti22,qui expressément confère
à celle-ci le droit «de créer les organes subsidiaires qu'elle juge
nécessaires à l'exercice de ses fonctionsIILe Tribunal adminis-
tratif des Nations Unies est donc, pour ce qui est de sa condition

juridique, un orgaglesztbsidiairede l'Assemblée généraees Nations
Unies, constatation d'où résulte pour l'Assembléegénéralele droit
de faire dépendre l'existence et le mode de fonctionnement du
Tribunal desa propre volontéexpriméepar desrésolutionsadéquates.

III. - Les jugements du Tribunal administratif peuvent-ils
être infirmés par l'Assemblée générale des Xations Unies ? Le
problème ne rentre pas dans les questions posées à la Cour de
Justice internationale, mais son examen permet de constater
mieux les droits exercés par l'Assembléegénérale à l'égard des118 ESI>OSÉ DU GOUVERSE\IEST HELLÉNIQUE

jugements du Tribunal admiriistratif. Aussi convient-il de lui
consacrer quelques brèves observations :
L'article IO du statut di1 Tribunal administratif dit expres-

sément quc les jugements du Tribunal sont a définitifs et sans
appel il.En effet, du fait que l'Assembléegénérale,elle-même,par
sa résolution du 24 novembre 1949 (art. IO, 5 2) a caractériséles
jugements en question comme (idéfinitifset sans appel », il résulte
qu'une infirmation des jugements du Tribunal administratif ne
semble pas, en principe, possible.
Ce que nous venons de dire n'est cependant vrai que pour autant
que l'article IO de la résolution du 24 novembre 1949 continue
à êtreen vigueur.

Mais étant donné clue l'Assemblée généralepeut, à n'importe
quel moment, par de nouvelles résolutions, modifier ses résolutions
précédentes,elle peut, en revisant l'article IO du statut du Tribunal
administratif, permettre par exemple l'ap$el contre des jugements
de ce Tribunal, qu'il s'agisse de jugements déjà rendus ou ,de
jugements futurs.

IV. - Les considérations qui précèdent ont pour but d'illustrer
la portée de l'article IO, paragraphe 2, du statut du Tribunal
administratif quant au caractère définitif des jugements de ce
Tribunal. Elles ne s'appliquent pas, nousl'avons dit, au cas d'espèce,
étant donné que la question posée à la Cour internationale de
Justice n'est pas celle dc savoir si 1'Assemblécgénéralea, oui ou
non, le droit d'infirmer un jugement du Tribunal administratif

mais plutôt la question de savoir si elle peut refz~ser,pour une
raison quelconque, d'exécuter un jugement du Tribunal admiiiis-
tratif accordant une indemnité à un fonctionnaire des Xations
Unies. Quant à cette question - et c'est celle-ci qui intéresse la
Cour -, il convient de faire les remarques suivantes :
L'article 9 du statut du Tribunal administratif prévoit que,
lorsqu'il y a lieu à indemnité, celle-ci est fixéepar le Tribunal et
(rversée parl'Organisation des Nations U+zies 1).

Ainsi qu'il résulte decc texte, 1'Asscmbléegknérale,en adoptant
la résolution du 24 novembre 1949, a cngagé l'organisation des
Nations Unies à verser aux fonctionnaires intéressésles indem-
nités accordéespar le Tribrinal administratif. Or, pour que I'Orga-
nisation des Xations Unics puisse exécuter l'obligation résultant
d'un jugement du Tribunal administratif, il faudra que l'Assemblée
généraleapprouve Lesmontants inscrits dans le budget de l'organi-
sation, destinés aux indemnités fisées par le Tribunal adminis-
tratif. Cependant, étant donné que l'exéciitioii du jugement du

Tribunal administratif dépend de l'approbation, par l'Assemblée
générale, des montants en question, il s'ensuit que l'Assemblée
générale,en adoptant la résolution du 24 novembre 1949, s'est
imposéel'obligation (auto-obligation) d'approiiver les montants ESPOSÉ DU GOUVERXEJIENT HELLENIQUE 119
du budget affectés aux indemnités accordées par le Tribunal

administratif.
La question se pose maintenant de savoir si, malgrél'obligation
constatée plus haut des Nations Unies de respecter les décisions
du Tribunal administratif, il n'existe pas, pour l'Assemblée géné-
rale, de possibilité juridique de ne pas exécuterun jugement du
Tribunal administratif, en n'approuvant pas, pour une raison
quelconque, les parties du budget se référantà l'indemnité.
En pure logique, l'Assembléegénéralepossède la capacité juri-
dique de ne pas approuver les sommes accordéespar le Tribunal
administratif si tel est son désir, les résolutions de l'Assemblée
généraleétant, en principe, juridiquement valables si elles ont
étéadoptées conformément aux règles établies par l'article 18
de la Charte. Cependant, une résolution de l'Assembléequi, sans
des nzotifs sérieux, ne respecterait pas les droits acquis par des

fonctionnaires en application de la résolutiondu 24 novembre 1949
(c'est-à-dire de l'artIO, 52, du statut du Tribunal) - et le juge-
ment du Tribunal a créé pour les fonctionnaires des droits acquis-,
bien qu'en théorie juridique valable,constituerait un acte arbitraire.
Un des principes fondamentaux du droit, principe ayant trouvé
sa place aussi dans la Charte, est que les obligations doivent
êtreexécutéesde bonne foi. Les Membres de YAssembléegénérde
ont -il est vrai -un pozbvoirdiscrétionnairequant à l'approbation
ou la non-approbation de telle ou telle catégorie du budget de
l'organisation, mais cette liberté de voter pour ou contre une
somme prévue au budget doit tozbjoursêtreexercéede bonne foi.La
non-approbation par les hIembres de l'Assemblée générale sans
raison sériezisede l'indemnitéaccordéeà des fonctionnaires par un
jugement du Tribunal administratif des Xations Unies. consti-
tuerait une violatioiz du principe de la bonnefoi et une méconnais-

sance du principe des droits acquis.

V. - Le fait qu'il existe, pour l'Assembléegénérale,l'obligation
de pourvoir à l'exécutiondes jugements du Tribunal administratif
des Nations Unies ne signifie, cependant, pas que les Membres
de l'Assembléegénéralen'ont aucune possibilitéde ne pas approuver
les parties du budget se référantà des indemnitésaccordéespar un
jugement du Tribunal administratif.
Ainsi que nous l'avons déjàindiqué,les Membres de l'Assemblée
générale - et ceci s'applique également à l'Assembléegénérale
comme telle -, dans l'exercice de leur droit de vote sur le budget,
possèdent un pouvoir discrétionnaire ;si, malgré l'obligation qui
existe pour l'organisation des Nations Unies d'exécuter,de bonne
foi, les jugements du Tribunal administratif, il y a des raisons
sérieuses,permettant de considérer le refus d'approuver la partie

du budget se référantà des indemnités accordéespar le Tribunal
administratif coinme itistifiées,ce refus doit être considérécomme
légitimeen droit.120 EXPOSE DU GOUVEKNEIIEST HELLESIQUE
VI. - Reste à savoir quels sont les motifs qui pourraient justifier
la non-exécution d'un jugement du Tribunal administratif.

A cette question on ne saurait donner qu'une réponsegénérale.
Il est difficile, sinon impossible, d'établir uiie liste des motifs justi-
fiant la non-exécution d'un jugement en question par l'Assemblée
générale.Ce n'est qu'à titre d'exemple que nous mentionnons
comme une raison justifiant la non-exécution d'un jugement du
Tribunal administratif le caractère défectziez&dx'un jugement.
On sait que dans les rapports intemationaux. la sentence d'un
tribunal arbitral,bien que définitiveet sans appel, est considérée
comme nulle lorsqu'il y a eu excèsde pouvoir de l'arbitre, corrup-
tion d'un membre du tribunal et. d'aprèsquelques auteurs, lorsqu'il
y a eu erreur essentielle dans l'application du droit (voir p. ex. le

projet de convention sur la procédure arbitrale élaboréepar la
Commission du Droit international (art. 30) dans le Rapport de la
Commission de Droit international de l'année1953).
Les memes principes s'appliquent en général lorsqu'il s'agit
de sentences de tribunaux arbitraux de dioit interne, où les cas de
nullité de la sentence sont mentionnés expressément par la loi
(voir p. ex. art.22 du code de procédure civile grecque).
L'hypothèse d'un jugement d,</ectztezldu Tribunal administratif
ne saura qu'influencer la décision à prendre par l'Assemblée
générale à l'égardde montants du budget affectés à des indemnités
accordées à des fonctionnaires des Natio~is Unies. Ainsi, par

exemple, lorsque le Tribunal administratif a commis une erreur
grave quant à ses $ouvoirs de juridiction, il ne saurait exister
d'obligations juridiques (ou morales) pour les Membres de 1'Assem-
blée généraleet, partant, pour l'Assemblée généraleelle-même
d'approuver les montants nécessaires à l'exécutionde la sentence
du Tribunal administratif.
Ceci à titre d'exemple. De façon générale,on peut dire que les
motifs sur lesquels l'Assembléegénéralepourrait se fonder pour
refuser d'approuver les montants affectés à l'indemnité due aux
fonctionnaires des Nations Unies ne peuvent pas être - nous
l'avons déjà dit plus haut - fixésd'avance de façon limitative.
Ceux-ci peuvent appartenir aux domaines les plus divers, tels que

la morale, la justice, l'ordre public, etc. Ainsi, pour ne mentionner,
de nouveau, qu'un seul exemple si l'octroi d'une certaine indemnité
a des fonctionnaires déterminésa comme effet de placer ceux-ci
dans une situation essentiellement plus avantapeuse Dar rapport
A d'autres fonctionnaires se trouvanidans des sitÜatio& analôiues,
et sicette situation naraît aux veux de l'Assembléeeénéralecomme
nta?tifestementinjusie, le refus'de l'Assembléegén&ale d'exécuter
en totalité ou en partie un jugement du Tribunal administratif ne
saura être que légitime.

VII. - Résumant nos conclusions quant au pouvoir de l'Assem-

bléegéneralede ne pas approuver les parties du budget de l'Orga-nisation des Nations Uiiies se référantà des indemnités accordées
par le Tribunal administratifà un fonctionnaire des Nations Unies
à l'engagement duquel il a été niis fin sans l'assentiment de
l'intéressé, lerefus éventuel de l'Assembléegénéraled'exécuter
un jugement du Tribunal administratif, en l'occurrence, doit être
considérécomme légitimechaque fois que la décisionen question
de L'Assemblég eénéralsee tonde sztrdes motifs sériez~et ne parait
pas comrneune méconriaissanca erbitrairedu principe dela bonnefoi
et dz~principe dz~respectdes droits acquis.8. WRITTEX ST..\TEJfEXT OF THE GOVERNRIENT OF

THE UXITED KIXGDOBI OF GREAT BRITAIX
AXD NORTHERN IKELAXD

1. IKTRODUCTIOK

By a Resolution dated Deceniber 9, 1953, the General Asscmbly
of the United Rations decided to requcst an Advisory Opinion
from the International Court of Justice on certain qiiestions
relating to the United Nations Administrative Tribunal ;and by
an Order dated January 14, 1954, the Court fised JIarch 15. 1954,

as the date for the deposit of anv Written Statements from Govern-
merits on these questions. The Government of the United Kingdom
of Great Britain andNorthern Ireland accordingly desire to prescrit
the follolving observations.
2. The questions, on which the Court is requested to give an
advisory opinion, are the following :

"(1) Having regard to the Statiite of the United Xations Administra-
tive Tribunal and to any other relevant instruments and to the
relevant records, has the General Assembly the right on any
groundsto refuseto giveeiiectto an award ofcompensationmade
by that Tribunal in favour of a staff member of the United
Nations whose contract of service lias been terminated without
his assent?
(2)If the answer given by the Court to question (1)is in the affir-
mative, what are the principal grounds uponnhich the General
Assembly coiild lawfullyexercisesiich a ri?"t

3. These t~voquestions are closely related to one anothcr. They
represent in substance two stages in the consideration of a single
problem, which arosc in a debate in the Fifth Committee of the
General Assembly upon the reiluest by the Secretary-General for
a siipplementary appropriation to enahle him to satisfy certain
a\iTardspreriously made by the Tribunal '.In the vie\\,of the United
Kingdom Government, the advisory opinion of the Court should
be based primarily on the Statute of the Tribunal and the Staff
Kegulations and Kules as they stood at the time of the debate.

Accordingly, thc present stateinent, except where other\vise
indicated, refers to the Statute, Regulations and Rules in force
before December 9, 1953. The United Kingdom Govcrnment,
ho\vever, do not consider that the amendments to the Statiitc and

'Sec the Summary I<ecord of the debate in the Fifth Cornmleadingto
theadoption oftheResolutioonfDecember g,1953:420th toq23rdand +zjth
to 427th meetings betweeDecember 3 and December 8, 1953. STATEYEKT OF THE USITED KISGDOLI 123

Regulations adopted hy the General Assemhly on that date \vould,
if taken into accouiit, materially affect the legal issues raised hy
the questions addresscd to the Court.

4. The questions before the Court are solely questioiis of laa..
They have no reference to the merits of an17 particular case ;
neither, in consequence, have the comments that follow. Never-
theless, the Court will he acquainted with the circumstances
which gave rise to the present request for its advisory opinion and
the relevant debate in the Fifth Committee. In the view of the
Uiiited Kingdom Government, the questions, especially the secoiid
question, if it should require to he answered, should he considcred
against that background. The General Assembly has refrained
from asking the Court for an exhaustive list of the grounds on

which it can lawfully refuse to give effect to an award of thc
Administrative Tribunal. It has, however, asked the Court to
indicate the "principal grounds".

j. (1)The question at issue is lvhether the Assembly is under
a legal obligation to give effect to an award by the Tribunal or
whether it is legally entitled to refuse to do so. In the \rie\i.of the
United Kingdom Government, a clear distinction must he drawn
between the po\rrers of the General Assembly and its legal rights
and duties-a distinction that was not always drawn in the speeches
in the Fifth Committee. It is apparent that the Assembly has powcr
to refuse to give effect to an award hy the Tribunal. By Article 17
of the United Nations Charter. the Assemhly is given powcr

to consider and approve the budget of the Organization. If an
award is for a surn of rnoney as compensation, an appropriation by
the Assembly to pay the whole or part of the sum may bc necessary.
It is in fact possible thatthe majority vote in the Asscmbly rcquired
to make the appropriation might not be forthcoming. In that
event, the inoney needed to satisfy the award would not he made
availahle to the Secretary-General. In that sense, the Assembly has
the power to refuse, or at least to fail, to give effect to an award.
(2)The point is, ho\vever, the legal obligation of the Assemhly
to give effect to anaazard, and, in the view of the United Kingdom
Govemment, failure or refusal hy the Assemhly to provide money

to satisfy an award by the Tribunal would in principle (suhjcct to
certain qualifications) be a refusal or failure to discharge the legal
obligations on the United Xations that Row from such an award.
6. (1)It has ùeen said that the General Assembly is in the
position of a sovereign body-that, within the United Xations, it
has a status con~parahle to that of a national legislature. It is
argued from this proposition that the Assembly cannot, tlierefore,

be hound hy the decisions of an organ which it has established, STATE5IEXT OF THE USITED KISGDOZI 12j

organ will depend on the conditions subject to which it was set
up. This is so whether the Tribunal be regarded as a subsidiary
organ established under Article 22 of the United Nations Charter
or as having been established pursuant to the powers given to
the Assembly by the Charter for the regulation of appointments

to the Staff of the Secretariat.

III. THE SPECIFIC QUESTIOSS ADDRESSED TO THE COURT

9. As already indicated, in the vie\\- of the United Kingdom
Government, the two questions quoted in paragraph 2 above
should be examined together. The United Kingdom Government
consider that the Assembly is under a legal obligation to give effect

to any award of the Tribunal which has been made in a regiilar
manner in accordance with the Tribuilal's Statute, whether or not
the Assembly agrees with the conclusions on which the award is
based. They consider that, although the Asscmbly has the power to
refuse to give effect to an award made by the Tribunal, the only
cases in which it has the right to do so are those in which it is
evident that the Tribunal has acted in excess of the powers con-
ferred on it by the Statute, i.e. has acted ultra vires, or has been
guilty of misconduct, e.g. in allowing itself to be influenced by
considerations of a venal character, or of conduct which amounts

to a denial of justice.
10.The United Kingdom Government consider that the Assem-
bly does not stand in relation to the Administrative Tribunal
either as n court of appeal or as a reviewing authority ;nor can it
re-try cases decided by the Tribunal. Only a superior judicial
organ wonld be competent to do this. In setting up a tribunal,

snch as the Administrative Tribunal, and in providing that its
judgments should be final and without appeal, .the Assembly
accepted the risk that the decisions of the Tribunal would iiot
necessarily coincide with the views of the Assembly.

11'. CO~~PET~~N CFETHE AD~~ISISTRATIT T'EIBUSZ~L

rr. The competence of the Administrative Tribunal is regulatetl

by Article 2 of its Statute. Paragrnph (1) of this Article proviiie:
"The Tribunal shall be coinpetent to liear and passjudgment iipon
applications allegingnon-observance of contracts of employment of
staff membersof the Secretariat of the United Nations or ofthe terms
of appointment of such staff members. The words 'contracts' and
'terms of appointment' includeal1pertinent regulations and rules'
in force at the tirne of alleged non-observance, including the staff
pension regulations."

1These regulations and mles are hereinafter reasthe Staff Regulations
and Rules.126 STATE\IEST OF THE U'IITED KINGDOM

12. In the viem of the United Kingdom Governinelit, this
Article uiitloubtedly gives the Tribunal polver to hear and pass
jiidgmcnt upon any application based on the ground that the
termination of an appointment was iiot effected iiiaccordance
with the Staff Regulations ancl Rules '.

13. This may be illustrated by consideration of the grounds on
mhich temporary and permanent contracts may be terminated
without the assent of the staff member. In the case of the holders

of temporary contracts, Stati Regulation 9.1 (c) provides that
"the Secretary-General may at any time terminate the appoint-
ment, if, in his opinion, such action would be in the interest of
the United Nations". In such cases, the Tribunal is not entitled
to suhstitiite its opinion for the opinion of the Secretary-General
but, in the view of the United Kingdom Government, it is within
the competence of the Tribunal to determine, in any given case,

whether termination \vas in fact based on the opinion of the Secre-
tary-General that such termination was in the interest of the United
Xations.

14. III the case of those holding permanent contracts, the Staff
Regulations provide for termiiiation of appointment \vithout the
assent of the staff member oii the follo\vinggrounds :if the necessi-
ties of the Service require abolition of the post, or reduction of
the staff ;if the services of the individual concerned prove unsatis-
factory ;or if he is, for reasons of health, incapacitated for further
service (Staff Regulation 9.1 (a)2,and the only ground for summary

dismissal of any member of the staff is serious misconduct (Staff
Regulatioii 10.2).
15. In order to adjudicate oii the question whether an applicant's
appointment has been properly terminated on one or other of the

grounds specified in Regulation 9.1 (a),the Tribunal must, in the
vie\\, of the United Kingdom Government, have power to consider
mhether the alleged ground cir grounds for termination in fact
existed and if they did, whether such grounds came within the
Regulation. For this purpose, the Tribunal must consequently be
entitled to interpret the provisions of the Staff Regulations and
Rules.

16. A Regulation may provitle that in certain evcnts the contract
of service may be terminated at the discretion of the Secretary-
General. In such a case, the Tribunal woiild have to decide whether
those events had occurred and \vould be entitled to determine

whether the Secretary-General had exercised his discretion. The
Tribunal would not, ho\\,ever, be entitled to review the exercise

' See Staff Rcgulatio9sand ioanclthe corresponding Staff Rul109 and iro.
' By a Rcsolution adopted by th,: General A~sembly on Decernber 9, 1953,
new ~TOU~IS xv\.eadded. but they are not materforthe purposesof the present
Statement. ST.iTEZIEXT OF THE USITED KIXGDOZl 127

of discretioii by him and, for instance, substitute in place of termi-

nation some lesser penalty.
17. If thcre were any doubt about the competence of the Tribunal

to interpret the Staff Regulations and Rules, it would, in the view
of the Unitcd Kingdom Goveriimeiit, be within the powers of
the Tribunal to resolve that doubt. Article z (3)of the Tribunal's
Statute provides, "In the event of aiiy dispute as ta whether the

Tribunal has competence the matter shall be settled by the decision
of the Tribunal." It may be contended that this Article relatesonly
to a dispute betlreen the parties before it, i.e. the applicants aiid
the Secretary-General. An alternative interpretation, however,

is that the Assembly had delegated to the Tribunal pouer to
determine its own competence and that the Assembly is bound to
accept its judgments on questions of competence as well as on the

substance of any claim. Both thesc iiiterpretations are possible and,
in the opinion of the United Kingdom Government, the lattcr is
the better one, subject to the application of the ive11recognized '
principle that, although a tribunal must have the power to deter-

mine its competence on the basis of the instrument which is the
source of its jurisdiction, an award rendered in excess of the powers
conferred by that instrument can be regarded as nuil and void.

18. Article 9 of the Tribunal's Statiite, in force before Decein-
ber 9,1953. provides l :

' Hy a Hcsolution adopted by thc General ;\sçenibly on Decernber g, ,953,
Article g of the Statute of the Administrative 'i'iibunawas amended to read as
followç:
"1. Ifthe Tribunal finds that the applicationia well founded, it shalorder
the rascinding of the decision contcsted or the specific performance of the
obligation invoked. At the saine time the Tribunal shall fixthe amount of
compensatih to bepaid to the applicant for the injury sustained should the
Secrctary-Gencral. ivithin thirtydays of the notification of the judgment.
decide, in th0 interest of the United Sations. that the applicant shall be
compnsated without further action bcing taken in his case; provided that
such compensation shall not exceed the equivalent of two years' net base
salary of the applicant. The Tribunal mny, hoivever, in exceptional cases.
when it considers if justified,order the payment of a higher intlemnity. A
stateiiicntof the reasons for the Trihrinal's decision shall accornpvny cach
suc11 order.

2. Should the Tribunal find that the procedure prescribed in the Staff
Regulations or Staff Rules has not been observed. it may, at thc request of
the Sccretary-General, and prior to the determination of the merits. order
the case remanded for institutionor correction of the required procedure.
\\'herc a casc is remanded the Tribunal may order the payment of cornpn-
sation. not to exceed the equivalent of threc months' net base salary. to
the applicant for such lossas may have been caused by the procedural delay.
3. In al1 applicable cases, compensation çhall be fixed by the Tribunal
and paid by the United Sations or, as appropriate. by the çpecialiredagency
participating under Article 1z." STATEMENT OF THE UNITED KINGDOM
129
subject to such changes as may be made in the Regulations and

Rules from time to time, and that the General Assembly is, there-
fore, entitled to amend the Staff Regulations and Rules and the
Statute of the Tribunal ; but, so long as they remain in force,
they are part of the contract between the staff member and the
Organization and it is the legal duty of the Assembly to honour
that contract.

VI. THE PRACTICE OF THE FORMER LEAGUE OF NATIOKS

22. It has been suggested that a precedent exists which estab-

lishes that the General Assembly is not bound to give effect to the
awards of the Administrative Tribunal and that it can, in effect,
in al1cases review those awards. This precedent is the action taken
by the League of Nations in 1946,when the Assembly of the League '
of Nations refused to give effect to awards of the League of Nations
Administrative Tribunal l.The Adniinistrative Tribunalhad found

that the Secretariat of the League of Nations and the Inter-
national Labour Office were not entitled to apply to thirteen
ex-officiais of the League of Nations and the I.L.O., respectively,
amendments made to the League of Nations and I.L.O. Staff
Regulations by a League of Nations Assembly Resolution of
December 14,1939, and had awardedcompensation ta theex-officiais
concemed. A Sub-Committee of the Finance Committee of the

League of Nations were asked to look into these findings of the
Administrative Tribunal, and found that the awards made by the
Tribunal were invalid and of no effect because they sought to set
aside the Assembly's legislative act.

23.In the opinion of the United Kingdom Government, what
was decided in that case was not that the Assembly of the League
of Nations had a general right to review the judgments and awards
of the Administrative Tribunal, but only that the Assembly was
not obliged to satisfy an award in a case in which the Tribunal
had declined to give effect to a Resolution of the Assembly. \mat

was in issue in 1946\vas the Tribunal's right to question the validity
of a Resolution of the League of Nations Assembly which had the
effect ofaltering the League of Nations and I.L.O. Staff Regulations,
and the discussion in 1946 in the League Assembly centred round
the powers of the League Assembly in the exceptional circumstances
which existed at the outbreak of war to alter by its own resolutions

the contractual rights of the League of Nations employees and not
round the right of the Assembly to review, in al1 cases and in
al1 circumstances, the findings and awards of the Administrative
Tribunal.

' See pages 4-ofthe GeneralReportof theFinance Cornmitteto the Assernbly
ofthe League of Nations,and pages130-13j.245-249, 261.264, of thRecords
of the Twentiethand Tmenty-FirstSessionsof the Açsernbly.
IO130 STATE>IEXT OF THE USITED KISGDO>I

24.(1) In this connection, attention may be dralvn toan opinion
giren in 1932 by an ad hoc Committee of Jurists set up to enquire
into the power of the Leagiie Assembly to reduce the salaries of
officials of the League of Nations. The Committee found, inter
alia, that :

"If the ~ssembi; reducsd the salariesof officials.the latter would
have the right to have recourse to the Administrative Tribunal.
The considerations set out above lead tlie Committee to think that
the Tribunal would decide in favour of the officials.As a result of
such a decision,and in virtue ofArticleIO of the Tribunal's Statute,
the Assemblywould then require to make in the nest budget provi-
sion for paying compensation '."

(2) The 1932 Committee, uiilike that set up in 1946, reached
the conclusion that the Asjembly had no power to reduce the
salaries of officials of the 1-eagiie of Xations. \\'bat is relevant
in the present connection, homever, is the Committee's undoubted
opinion that Article IO of the Tribunal's Statute, \\.hich provided
that "any compensation awarded by the Tribunal should be charge-

able to the budget concerned", placedon the Assembly an obligation,
which could not be contested, to make budgetary provision for
paying the compensation awarded.

1 Records of the 13th Ordinary Session of the Asscrnbly of the Levgue of
Sations-Minutes of the Fourth Cornmittee. p206. 9. WRITTEN STATEMENT OF THE UNITED STATES
OF ANERICA
ON

THE QUESTIOSS SUBMITTED TO THE IXTERNATIOSAL COURT OF
JUSTICE BY THE UNITED NATIONS GENERAL ASSEIlBLY
BY RESOLUTION DATED DECESIBER 9, 1953,
RELATING TO THE POWER OF THE GENERAL ASSEMBLY
REGARDING AWARDS OF COIIPENSATION MADE BY THE UNITED
NATIONS ADMINISTRATIVE TRIBUNAL

CONTENTS
Page
1. Introduction ................. 112

II. Summary of argument ............... 115
III. The responsibility and power of principal organs under the
Charter are superior tothose of subsidiary organs;under,tbe
provisions of the Charter,this principle dominates the relation-
ship between the General Assembly and the Administrative
Tribunal ................ 116
(A) Provisions regarding the United Nations budget ... 117
(B) Provisions regarding administration ....... 119
(1) Articles101 and 97 ........... 119
(2) Articles 7, 8 an22 ........... 124

(C) Provisions regarding legal interpretation and judicial
organs ................ 133
(D) Consideration of doctrine of separation of powers . . 135
IV. Nothing in the Statute of the United Nations Administrative
Tribunal has diminished the responsibilities and power of the
General Assembly or has prejiidiced its right or power to refuse
togive effect to awards of the Tribunal........ 136
(A) Preparatory Commission and Drafting Committee . . 140
(B) The League of Xations mode1 ......... 145
(1) Position in history and comparative jurispmdence . 145
(2) Statute of the League of Nations Administrative
Tribunal :the 1946precedent and its background . 151
(C) Decisions of the United Nations General Assembly . . r61

V. Conclusions, Questions (1)and (2) .......... 165132 STATEbIENT OF THE UNITED STATES OF AZIERICA

1. INTRODUCTION

The General Assembly of the United Nations, at its Eighth
Session, by Resolution dated December 9, 1953 (UN Officia1
Records, General Assembly, 8th Sessioii, A/xgq, II December 1953).

decided to submit to the International Court of Justice for an
advisory opinion certain legal questions concerning awards of the
United Nations Administrative Tribunal.
First, the General Assemblj~ put the general question of its
right to refuse to give effect to an award of compensation made by
the Administrative Tribunal ; and second, it inquired as to the
principal. grounds upon which such a right could lawfully be
exercised. The Resolution of December 9, 1953, reads as follonrs :

"The GeneralAssembly,
Considering the request for a supplementary appropriatioii of
$179,420, made by the Secretary-General in his report (A/2534)for
the purpose of covering the awards made by the United Xations
Administrative Tribunal in eleven cases numbered 26, and 37 to
46 inclusive,

Consideringthe concurrencein that appropriation by the Advisory
Committee on Administrative and Budgetary Questions contained
in itstwenty-fourth report to the Eighth Session of the General
Assembly (A/z580),
Considering, nevertheless, that important legal questions have
been raised in the course of debate in the Fifth Committee with
respect to that appropriation,

Decides
To submit the followinglegal questions to the International Court
of Justice for an advisory opinion
(1) Having regard to the Statute of the UnitedNations Adminis-
trative Tribunal and to any othei relevant instruments and to
the relevant records, has the General Assemhly the right on any
grounds to refuse to giveeffect to an award of compensation made
by that Tribunal in favour of a staff member of the United
Nations whose contract of service has been terminated without
hisassent ?
(2) If the answer given by the Court to question (1)is in the
affirmative, what are th<: principal grounds upon which the
General Assembly could lawfully exercise such a right ?"

These two questions were put to the International Court of

Justice in order that the General Assembly in its further delibera-
tions concerning certain awards made by the United Nations
Administrative Tribunal in I9j3 might be advised by an opinion
from the principal judicial organ of the United Nations on the
legal questions formulated in the Assembly's Resolution. Before
proceeding to state views on the questions subniitted by the ,
STATEIIE'IT OF THE UNITED STATES OF -43IERIC.4 '33

General Assembly, it is essential to consider the exact import of
those questions. They speak of the Assembly's "nght" to follow
a given course of action.
It is ne'cessary to understand this term in the sense of legol
fiowec on the part of the Assembly. Otherwise, there is not a "legal
question" on which an advisory opinion can he sought and rendered
under Article 96 of the Charter. The Charter does not provide
here, and the Court is not constituted, for the rendering of advisory
opinions on other than legal questions : for example, on political

or moral questions. Accordingly, there must he excluded from the
meaning of the term "right" in the Assembly's questions any
elements other than legal considerations ; the question is not
whether there is a moral right, ail ethical right or any kind of right
other than a legal right or power.
The questions suhmitted by the General Assembly, therefore,
require that one consider what legal dispositions there are under
the Charter of the United Xations and other relevant law, as
drawn from the sources recited in Article 38 of the Statute of the
Court, which relate to the Assembly's giving or refusing to give
effect to awards of compensation made hy the United Nations
Administrative Tribunal. Article 38 of the Statute, in setting forth

the sources of la\\. to be applied by the Court, places first "inter-
national conventions, whether general or particular, establishing
rules expressly recognized hy the contesting states". Under Arti-
cle 68, the Court is authorized, if not indeed encouraged, to follow
such provisioiis as Article 38 in the exercise of its advisory func-
tions. In vie~vof the nature of the Charter as the treaty under
which the General Assembly aas established, there could scarcely
be aiiother point of departure than the Charter in dealing with the
questions which have been suhmitted hy the General Assemhly.
As the Court said in its advisory opinion conceming Conditions
of Admission of n Stnte to iMembershipin the United Nations :

"The political character of an organ cannot release it from the
observanceof the treaty provisions estabkhed by the Charter when
they constitute limitations on its powersorritena for its judgment.
Toascertain whether an organ has freedom ofchoice forits decisions,
reference must he made to the terms of its constitution." [1g48]
I.CJ. 57,64.

The Charter, as it applies to the General Assembly, does iiot
speak of "rights" of the Assembly. Its language is that usual in
most constitutionai documents ;"shall", "may", and similar terms
are used where scope and content are given to the Assembly's
"functions and powers" in Chapter IV of the Charter. "Right" is
used with reference to States, hlembers, peoples, and individuals.

Articles 1 (2) ;2 (z), (5) ;13 (1) (6) ; 18 (2); 40 ; 43 (1) ;51 ; 55;
62 (2) ;68 ;76 (c) ;80 (r) ;cf.Articles 31 (1)and 63 (2)of the Statute
of the International Court of Justice. In the language of the134 STATEZIENT OF THE UNITED STATES OF AMERICA
Charter, therefore, the questions now before the Court must be

understood as whether and how the General Assembly is empowered
in the execution of its fnnctions to give or to refuse to give effect
to awards of the Administrative Tribunal, and what, if any,
limitations are imposed ou the Assembly's exerciseof such a power.
To reject those meanings of "right" which relate to political and
moral propriety or to individual as' distinguished from govern-
mental "right", and to understand the nord in the sense of legal
power, is to conform to "a cardinal principle of interpretation that
words must be interpreted in the sense which they would normally
have in their context, nnless such interpretation would lead to
something unreasonable or absurd". See Polish Postal Service in
Daltzig, [1925] P.C.I.J. Ser.B. No. II. 39.

Before leaving the question of the scope and content of the
Assembly's questions, it may be worthwhile to consider the phrase
"refuse to give effect" as used in the questions. Its meaning seems
clear as importing any course of action other than simple appro-
priation of funds by the General Assembly to pay the Adminis-
trative Tribunal's monetary awards. Thus, the General Assembly,
like the League Assembly in 1946,where the same term ("refuse to
give effect") was used, might adopt a report by itsFifth Commit-
tee disapproving the awards for stated reasons and not appropriate
the money to pay them. The Assembly might, as it has done in
the present case, not appropriate the money at the session at
which the item was placed on the agenda for consideration, or
even indefinitely postpone voting on payment. It might vote on

a proposal to pay and not adopt it at one or at several sessions.
It might, as it has done in the present case, refer one or more
legal questions to the International Court of Justice. It might
create a special tribunal to review Tribunal cases ad hoc.It might
adopt a report approving payment of a different amount on
grounds differing from those of the Tribunal. It might simply
appropriate a part of the amount named by the Tribunal. It
might appropriate the whole aniount, but on the basis of a report
espressly rejecting the ratio decidendi of the Tribunal and the
authority of its judgment.
\Yould any or al1 of these actions, or other possible variants,
constitute refusal to give effec? It is submitted that they would.
The intention of the first question submitted by the General

Assembly would seem to be to ask the Court whether the Statute
of the Tribunal, the Charter, or other relevant instruments or
records constitute a legal bar to every course of action otherthan
full and prompt payment and acceptance by the General Assembly
of the Administrative Tribunal's judgments. The second question
appears legally answerablc, as will be developed later, only in
terms of Charter limitations on action by the Assembly. STATEIIENT OF THE UXITED STATES OF AMERICA 135

11. SUIIMARY OF ARGUMENT

The responsibility and power of principal organs are s~perior to
those of sz~bsidiaryorgans. This principle dominates the relationship

between GeneralAssembly and Administrative Tribunal
The General Assembly under the Charter bears exclusive responsi-
bility for considering and approving the budget by a two-thirds
majority vote. It cannot by delegation avoid the requirement of a

two-thirds vote following its own full and adequate consideration
of budgetary appropriations.
The Charter does not permit the General Assembly to create an
organ capable of usurping the Charter power of the Secretary-
General or its own function of final review and decision in matters
arising out of its concern with the administration of the Secretariat
pursnant to Article 101 (1) of the Charter. Establishment of an
Administrative Tribunal might be an implied power of the General
Assembly, but establishment of an organ whose decisions must be
regarded as legally binding upon the Assembly, or, in al1 cases,
upon the Secretary-General, is not necessary to the discharge of
the Assembly's functions and would indeed be contrary to the

provisions of the Charter.
Articles 7 and 22 provide the only categories of United Nations
organs, and these are "principal" and "subsidiary". The Tribunal
is not a principal organ. Article2 authorized the General Assembly
to establish it as a subsidiary organ. The Tribunal cannot assume
the role of a body legally capable of compelling the acquiescence
of the General Assembly.
The interpretation of the Charter in regard to the Assembly's
functions, and the interpretation of its own resolutions, is a matter
which must remain the primary and final responsibility of the
General Assembly. Not even the International Court of Justice

can bind the Assembly to a given interpretation ; a subsidiary
organ is plainly incapable of such legal power.
Under the Charter, it is not possible to construct a theory of
çeparation of powers as between the General Assembly and the
Administrative Tribunal. Even if it were, however, the logical
consequences would be, not that the General Assembly would
have no right or power to exercise its powers in a fashion disap-
proved by the Tribunal, but rather that the Tribunal would lack
leeal authoritv to control how the General Assemblv should Der-
f&m its taski.
Nothing in the Statzcte of the Administrative Tribz$nal can be
considered to have diminished the resbonsibilities and bower O/ the

GeneralAssembly or to have prejzcdicédits rights or poher to réfuse
to give efect to awards of the Tribzdnal.
In creating the Administrative Tribunal, the General Assembly
did not seek or purport to endow the Tribunal with power to bind136 STATEIIENT OF THE UNITED STATES OF :\YERlCA

the Assembly. The work of the Preparatory Commission of the
United Nations and the Drafting Committee for the Tribunal's
Statute evidence predominant concern in securing the highest

standards of efficiency, competence and integrity among the Staff,
as required by the Charter, and respect for the discretion vested
by the Charter in the Secretary-General to permit establishment
and maintenance of these standards. It waç in this context, and
with full appreciation of the fact that in 1946 the Assembly of.the
League of Nations exerciscd the right to refuse to give effect to
awards of the League's Tribunal, that the present Statutc was

modeled upon that of the League and used the League Statute's
language that judgments should be "final and without appeal".
Administrative Tribunals in the field of international law are
new institutions, are sni generis, and necessarily lack both the
established substantive la\\,, and the constitutional safeguards,
such as a mature appellate structure with interna1 checks and
balances, which may afford an immeasurably greater assurance

in any given municipal system that exhaustion of remedies within
a judicial framework will result in substantial justiceaüncases.
Even in mature municipal systems, there can be no ultimate
legal sanction depriving the supreme legislative body of its lawful
authority over the matter of budgetary appropriations.
In a fully debated decision in 1946, the League of Nations

Assembly authoritatively settled the question whether awards of
the League Tribunal must be given effect by the League Assembly.
The answer was that the Assembly bad the right and exercised
the power to refuse to give them effect.
The conclusionfollows that the GeneralAssembly has the right to
refuse togiue egect to awards of the .4dnzinistratiue Tribzinal.As to
groz6ndsufion which it might do so, the Charter reqiiires that the

GeneralAssembly shall make a fiolicy decision, taking accotvzt of
the relevant factors, based on ihe Charter firiiicifile of fia*a?nozc?tt
consideration for vnaintaining the ltighest standards of eficiency,
comfietenceand integrity in the Secretariat.Any one orcombination
of n series of factors might creale asituation in which theAssembly
would judge that its Charter resfionsibility called for refzisal to give
effectto a Tribunal awavd.

III. THE RESPONSIBILITIES AXD POWERS OF PRINCIPAL ORGANS
UNDER THE CHARTER ARE SUPERIOR TO THOSE OF SUBSIDIARY
ORGANS, AND UNDER THE PROVISIONS OF THE CHARTER THIS
PRINCIPLE DOMINATES THE RELATIONSHIP BETWEEN THE

GENERAL ASSE>IBLY AND THE ADIIINISTRATIV TRIBUXAL

The Charter vests rights and duties, powers and responsibilities,
in the principal organs of the United Nations, the exercise and
fulfilment of which must as a matter of law prevail over any
conflicting dispositions purporredly made by organs other than STATEMENT OF THE UNITED STATES OF AIIERICA '37

the principal organs. The fact that an orgaii othe~than a principal
organ deems such dispositions to be conçistcnt with authority
delegated by the principal orgaii and with the rights and duties,
powers and responsibilities vested in the principal organ, cannot
exclude consideration and decision of these questions by the
principal organ itself, in accordance with the terms of the Charter.
Foreseeing the possibility of conflict between Charter obligations
and those arising from other international agreements, the drafters
provided in Article 103 :

"In the event ofa conflict betweenthe obligationsofthe Members
of the United Nations under the present Charter and their obliga-
tions under any other international agreement, their obligations
under the present Charter shall prevail."
If supremacy of Charter obligations is the rule for sovereign States,

it cannot rrery iveIl be doubted that it applies to organs of the
United Nations whose very existence derives from the Charter.
Thus, in consideriiig whcther the United Nations enjoyed inter-
national personality such that the General Assembly would be
competent to authonze the Secretary-General to bring international
claims to compensate United Nations agents for personal injuries
suffered by them in line of duty, the Court said, "The Court is here
faced with a new situation. The questions to which it gives rise
can only be solved by realizing that the situation is dominated by
the +rouisionsof the Charterconsidered in the light of the principles
of international law." (Underscoring supplied.) Reparation for
Injuries suflered in the Service of the United Nations, [1g4g] I.C.J.
174, 182.

(A) Provisions regarding the United Nations budget

The most explicit and immediately relevant Charter provisions
dominating the giving effect to awards of compensation are Arti-
cles 17 and 18. They provide, in part :

"Article17

1. The General Assemblyshall consider and approve the budget
of the Organization.

Article18
........................

2. Decisions of the General Assembly on important questions
shall be made by a two-thirds majority of the members present
and voting. These questionsshall include ....budgetary questions."

The financial implications of decisions of the Administrative
Tribunal may be negligible or they may be very great. They are STATEJIEST OF THE USITED STATES OF AJIERICA '39

In summary, then, Articles 17 and IS make it very clear that,
consistently with Article 101, the budgetary power is intended to
be substantive, not just ministerial, and is specifically enumerated
among those powers which the Charter designates "important"
and for the exercise of which it requires a two-thirds majority.

(B) Provisions regarding administration

In discussing the budgetary provisions of the Charter it \\.as
assumed that the General Assembly had the porver to establish an
Administrative Tribunal. It is necessary, however, to esamine
more closely into the source and the extent of this power. As \vil1
be brought out later, the power is specifically conferred by the
Charter and is the power to establish subsidiary organs. Hon-

ever, since it is closely related to the powers conferred under
Articles IOI (1) and 97 of the Charter, it is convenient to examine
first the possibility that it is to be implied froin these Articles.
(1)Articles 97 and ror

Articles 97 and 101 are those most directly related to the interna1
administrative structure,of the United Nations. They rea.d. in part :

"Article97

The Secretariat shaUcomprisea Secretary-Generaland such staff
as the Organization may require. The Secretary-General shall be
appointed by the General Assembly upon the recommendation of
the Security Council. He shall be the chief administrative officerof
the Organization.
Articleror

I. The staff shall be appointed by the SecretaryGeneral under
regulations established by the General Assembly.

3. The paramount consideration in the employment of the staff
and in the detemination of the conditions of service shall be the
necessity ofsecuringthe highest standards of efficiency,competence
and integrity. Due regard shall be paid to the importance ofcruit-
ing the staff on as wide a geographical basis as possible."

In vesting the power to appoint the staff in the Secretary-
General "under regulations established by the General Assembly",
the Charter charges not only the Secretary-General but also the
Assembly with a responsibility to the Organization and its mem-
bers-the parties to the treaty-to assure that "the paranto?rnl
consideration in the employment of the staff and in the detenlti-

nationoftheconditionsof serviceshall be the necessity of securing the
highest standards of efficiency, competence and integrity". (Under-
scoring supplied.) Article ror (3). The importance of this injonc-140 ST.ATEIIEST OF THE USITED STATES OF AIIERICA

tioii \vas emphasized at San Francisco ~vhen the Soviet Union
moved for deletion of an addition \\,hich Canada had originally
proposed to Chapter X of the Dumbarton Oaks Proposals. The
addition read :
"The staff shall be appointed by the Secretary-General under regu-
lations established by the Gcncral Assembly. The paramount con-
sideration in the employment of the staff and in the detemination
of conditions of serviceshall be the necessity of securing the highest
standards of efficiency,competence and integrity. Due regard shall
be paid to the importance of recruiting staff on as wide a geo-
graphical basis as possible." 7 UKCIO Dot. 177.

The Soviet delegation argued that this language'should not be
iii the Charter because it related to miiior technical details. The
conference cornmittee rejected the Soviet motion and voted for
the Canadian proposal. The coniinittee debate on this point is
sumniarized as follows :

"A uumber of delegates agrecd that the Charter should not con-
tain excessivedetails, but contended that the paragraph in question
IIQS concerned with matters of principle and not of detail ;that in
fact the paragraph containedno more than gexeralprinciples 10guide
theAssembly whenit esfablishedthe detailedregulationsgoverningthe
staff of the Secretariat.Fotrrimportant princi les are containedin the
paragraph: the selection of the staf by the tecretary-General in bis
capacity as chief administrative oficer, the establishmentby theAssem-
standards of e@ciency,comfitielice and integrity, and provision forst
recruiting staff on us wide a geographicalbasis as possible." (Under-
scoring supplied.) 7 UNCIO Iloc. 176.

Iloes the power to establish regulations under Article 101 to
govern the staff of the Secretariat imply power

(a) to establisii machinery for hearing and decision on staff
grievances ?
(b) to set up the necessary bodies for hearing and decision,
prescribe their jurisdiction, designate the point at which a final
decision is made so that no further appeal can be taken as of
right under the machinery so set up ?
(c) to create in the staff vested or acquired rights to the
appropriation of whatever ;rwards the bodies so set up may
make ?

(d) to make decisions of the bodies so set up binding in law
on the General Assembly itself ?
(e) to endow the bodies so set up with the power of a judi-
ciary independent of and CO-ordinate with the International
Court of Justice, the Geiieral Assembly and the Secretariat ?

\Vhen the Charter empowers an organ to achieve an objective,
it is to be held to imply such capacities, privileges or powers as
are necessary or essential to the attainment of the objective and as STATEMEXT OF THE UXITED ST.4TES OF AMERICA 141
are consistent with and iiot excluded by other provisions of the

Charter. In its opinion on the International Labor Organization
and the Persona1 Work of the Employer, the Permanent Court of
International Justice found it inconceivable that the parties to
the Treaty of Versailles, in setting up the Organization, intended
"to prevent the Organization from draxving up and proposing
measures essential to the accomplishment" of the ends for ~vhich
it was created. [1926] P.C.I.J. SerieB, No. 13, 1, 18. 111its opinion
on Reparation for Injztries sufered in the Service of the United
Nations, the International Court of Justice stated, "Under inter-
national law, the Organization must be deemed to have those
poioers which, though not expressly provided in the Charter, are
conferred upon it by necessary implication as being essential to the
performance of its duties." [1949] I.C.J. 174. 182. In that opinion,
the capacity to exercise a measure of functional protection of its
agents \vas found to arise "by necessary intendment out of the
Charter". Id. at 184.
The Court took pains to examine other means of achieving legal
protection and found them inadequate because they would depend

upon the attitude that a single State (firember or non-member)
might assume, and because there might be no State legally compe-
tent to act. Moreover, it found that itwas "essentiai" that the
agent of the Organization be able to look to the Organization itself
for protection. Ibid.
Applying the principles just cited to the questions set out above,
the answers to (a) and (b) would seem to be "yes" ;the answers
to (cl,(d) and (e) would seem to be "no". The Secretary-General,
under the Charter, appoints the staff. Article IOI (1).He directs
their work and in general performs al1 functions appropriate to
"the chief administrative officer of the Organization". Article 99.
The general "conditions of service" are determined and laid domm
by the General Assembly in the Staff Regulations, and are given
effect hy the Secretary-General and his subordinates through the
Staff Rules, practices, and day-to-day decisions made within the
Secretariat. In any public administratiori, the need for a fair-
hearing procedure is soon felt. Initidy, it was met in the United
Nations by the establishment of bodies to which the staff member

could appeal and whose opinions were advisory to the Secretary-
General.
In 1949 the Assembly established the Administrative Tribunal
and provided that its judgmcnts should be "final and without
appeal". As will be brought out below, this meant that neither
the staff member nor the Secretary-Geueral was given any right
of appeal to another tribunal or agency and that the remedies
accorded each under the system established by the Statute had
been exhausted. But let us assume, for the moment, that it had
been intended to prevent the General Assembly, either at the
instance of Members of the United Nations or at the instance of 142 ST.STE5lENT OF THE UKITED STATES OF AIIERICA
the Secretary-General, from reviewing the propriety of the action
of the Tribunal. Let us assume that the effects outlined above as

(c), (d) or (e) had been intended. Could it be said that the General
Assembly possessed the implied power to make such legal dispo-
sitions I Are they "necessary" or "essential" to any of the "four
important principles" contained in the Canadian proposa1 at
San Francisco, as quoted previously, and as now embodied in
Articles 97 and IOI ?
To recapitulate, the principles are :

I. Selection of the staff by the Secretary-General as the chief
administrative officer.
z. Establishment by the General Assembly of regulations
concerning employment.
3. Provision for the hi-hest standards of efficiency, competence
and integrity.
4. Provision for recrniting staff on as wide a geographical
basis as possible.

Neither the first nor the fourth principle even hints, much less
requires, that staff members be vested with an acquired right to
the benefits of a decision by an independent Administrative
Tribunal in effect CO-ordinatewith the International Court of
Justice and beyond the reach of the General Assembly. As for the
other two principles, the only hypothesis on which it could plausibly
he asserted that snch an acquired right could be vested in staff
members is the hypothesis that there is a high degree of probability
that a snbsequent General Assembly will act withont sense of
responsibility and seek to do harm to its own regulations'or to
undermine the efficiency,competence and integrity of the Secre-
tariat, and that the existence of an acquired or vested right would

prevent such dire happenings. This hypothesis does not deserve
serions attention.
It is submitted that the General Assembly has ample power,
means and disposition to adopt and establish confidence in a
$ractice of general acceptance of the decisions and awards of the
Administrative Tribunal, without legally tying its hands in the
face of unforeseen and essentially unpredictable developments
which may demand its corrective action to strengthen the efficiency,
competence or integrity of the Secretariat, to ensure that the
regulations established by the General Assembly are truly applied,
or for other eqnally lawful purposes under the Charter. And should
the General Assembly feel the need of consistent, anthoritative
legal advice, it can always, of course, secure such advice from the

International Court of Justice in the only form provided by the
Charter in such situations, namely, an advisory opinion. It is worth
. noting in this connection that the Assembly has already established
a firm tradition of respect for the advisory opinions of the Inter-
national Court of Justice. STATEMENT OF THE UXITED STATES OF AMERICA *43

There is an additional reason why an implied power to give
binding effect to awards of the Tribunal in the sense discussed
cannot be attributed to the General Assembly, or indeed to any
organ of the United Nations. The reason is the very simple one
that no organ, be it the Assembly or the Secretary-General, is
free to honor or obey the piirported commands of some other
body where such commands are contrary to the provisions of
the Charter itself.
By virtue of Article 97 of the Charter, the Secretary-General
is the chief administrative officerof the Unitedations. Articles97

and 101 are very clear and precise in vesting the power to employ
and manage the Secretariat in the Secretary-General. Since this
authority is given to the Secretary-Geueral by the Charter itself,
it is impossible to transfer it elsewhere, to the Administrative
Tribunal, for instance, by resolution of the General Assembly.
To empower the Tribunal. to substitute its judgment for that
of the Secretary-General in matters directly involving the discharge
of his power to employ and manage the Secretariat and thus his
responsibility for the staff and its discipline, ivould be a serions
infringement of the Secretary-Generai's Charter powers. Yet to
imply a power under which the Tribunal may bind the General

.&ssembly and the Secretary-Geiieral by Tribunal decisions is
to permit the assertion of power by the Tribunal to substitute its
judgment for that of the Secretary-General without a parallel
corrective power in the General Assembly or the Secretary-General.
Such a result is contrary to the Charter. Because of the presump-
tion of legality in favor of Assembly action, the Assembly should
not be held to have intended that the Administrative Tribunal
should have unconstitutional powers. The question of the General
Assembly's intention will be adverted to later.
The General Assembly can, of course, empower a subordinate
body to render legal opinions as to the proper application of the

Staff Regulations and give decisions for the correction of legal
errors made by the Secretary-General-through arbitrary action
or action outside his authority. But no such body may revise
acts of the Secretary-General done within the scope of his author-
ity; for this would violate the Charter. A subordinate body may
not be allowed to decide irrevocably whether action of the Secre-
tary-General was authorized or not in the discharge of his Charter
responsibilities.
Examination of the record in the present cases would demon-
strate that the Tribunal has attempted to reverse the Secretary-
General in respect to matters within his Charter authority and
beyond the authority of the Tribunal. The very possibility of

such a development-whatever the cases in which it should be
found to arise-clearly indicates that the Charter does not merely
allow but reqzciresthe existence of power to set aside Tribunal
action as void where it runscounter to the Charter.144 STATEXEXT OF THE UNITED STATES OF AMERICA

From these considerations, the conclusion would appear to be
that an implied polver of the General Assembly to establish an
administrative tribunal may be both necessary and essential, but
that an implied power in addition to impose legal limitations
upon the General Assembly's (or the Secretary-General's) own
express Charter powers is not necessary or essential, and is not
legally admissible.

(2) Articles 7, 8 and 22
We have proceeded up to the present on the basis of the General
Assembly's possessing power to establish an administrative tribunal,

without inquiring too particularly as to the source of the power.
In the preceding section we considered the possibility that this
polver M'as implied througb the presence of Article 101 of the
Charter. It was seen that any such implication did not reach so
far as to enable the General Assembly to create a tribunal whose
decisions and awards must as a matter of law automatically be
accepted and given effect by the Assembly.
\Ve now come to those provisions of the Charter ahich specifi-
cally empower the Assembly to createother organs. These provisions

are geiieral in the sense that tliey cover al1 types of organs. They
are, however, specific and limiting in inaking it clear that any
organs set up by the Assembly are subsidiary in character. In
other words, the General Assembly is empowered to establish
organs which remain under the Assembly's authority. The Charter
dispositions are such as to exclude the possibility of the Assembly's
establishing any non-subordinate or CO-ordinateUnited Nations
orrans-either under s~ecific aants in the Charter or throurh
- u
a6 implied grants. A
The provisions referred to are Articles 7,6, 22 and 29. They read:
"Article7

I. There are established as the principal organs of the United
Nations :a General Assembly, a Security Council.an Economic and
Social Council, a Trusteeship Council, an International Court of
Justice, and a Secretanat.
2. Such subsidiary organs as may be found necessary may be
established in accordance with the present Charter.

Article8
The United Nations shall place no restrictions on the eligibility
of men and women to participate in any capacity and under con-
ditions of equality in its principal and subsidiary organs."

"Article22
The General Assembly mny establish such subsidiary organs as
it deems necessary for the performance of its functions 1."

' Article68 of the Charter provid:s
"The Economic and Social Council shall set up commissionin econornic and
social fields andr the promotionof human rights, and such other commissions
asrnay be required for the performance of its functionç." STATEMENT OF THE UNITED STATES OF AMERICA 145

"Article29

The Security Councilmay establish such subsidiary organs as it
deems necessaryfor the performance of its functions."

Articles7 and 8 show very clearly that the Charter contemplated
a system composed of "fivincifial" and "subsidiary" organs. These
are the only two categories named, and the provision for sub-
sidiary organs ü obviously designed to permit suficient Aexibility
for the discharge of al1 ?tecessary tasks, while at the same time
assuring that the organs enumerated as "principal" shall continue
to be so and that no provisions of the Charter shall be overridden
by the establishment of the "subsidiary" organs. Article 8 confirms
the objective of a single and CO-ordinated system by stating that

the United Nations' rule of equal rights for men and women
applies "in its principal and subsidiary organs", and not, as would
have been the case if organs of some other categories were con-
templated, "in principal, subsidiary and any other organs".
Article 7 names al1the "prjncipal organs" of the United Nations.
No more can be created, except by Charter amendment. Any
organs established by principal organs must be subsidiary organs.
The interrelationship of Articles 7, 8, 22 and 29 was clearly
recognized at the San Francisco Conference, and the task of con-
sidering whether al1 these provisions should remain or only some,
and ifso how, \vas finally entrusted to the Advisory Committee
of Jurists.Recommend:rtions were formulated at the fourth meeting
of the Committee by Messrs. Hack\vorth (Chairman), Hsu Afo,
Colunsky, Malkin, Basdevant and Robles. UNCIO,' WD 268,

CO/rro, June IO, 1945. These recommendations subsequently
received approval of the Co-ordination Committee and of the
Conference itself.
The Advisory Committee of Jurists had the following texts to
\vork from :
I. In the first place, it had Article7, as approved by the Co-
ordination Committee on hIay 30 and June 4,1945, and Article 8,
as approved by Comrnittee I/z on June 6, both preserving the
distinction between "principal" aiid "subsidiary" first established

by Chapter 11' of the Dumbarton Oaks Proposals (3 UNCIO
Doc. 4) :

"Article7
,I. There are established as th6 principal organs of the (name to
be inserted):a GeiieralAssembly, a Security Council, anEconomic
and Social Council,an International Court of Justice, and aecre-
tariat.
2. The (nameto be inserted) may in accordancewith the Charter
establislisuchsubsidiaryorgansasmay befoundiiecessary." (Under-
scoring supplied.) UXCIO WD nr, C0/35(2), June 5, 1945.

II146 STATEMENT OF THE GNITED STATES OF AMERICA

"Article g [now 81
........................

The (name ta be inserted) shall place no restrictions on the eligi-
bility of men and women to participate in any capacity and nnder
conditions of eqnality in the principal and subsidiary organs."
UNCIO WD 252, C0/37(2), June IO, 1945.

2. Next, it had Article 22, as revised and still nnder consider-
ation by the Co-ordination Committee :

"Artic!e22

The General Assembly may create such bodies and agencies as it
deems necessary for the performance of its functions." UNCIO WD
129. C0/75(1). June 3, 1945.

Finally, it had the text of present Article 29, as revised and
approved by Committee 11111on May 22, 1945 :

"2. The Security Council should,be empowered to set up such
bodies or agencies as it may deem necessary for the performance of
its functions." UNCI0 \nin131, CO/71, Jiine3, 194.5.
At its Fourth Meeting on June g, 1945, the Advisory Commit-
tee of Jurists settled on the recommendations it believed proper,
as appears from the following note by the Secretariat :
,
"The Advisory Committee of Jurists considered Articles 22 and
32 [now zg] in connection with paragraph z of the above article
[Article71and agreed that al1three should remain in the Charter.
The Jurists recommended certain changes in Articles 22 and 32
[now zg] in order to bring the language of the three Articles into
conformity ....U:NCIO \VD 253, C0/35(3), June IO,1945 ;see, also,
UNCIO \VD 268, CO/rro, Jiine IO, 1945.

In this discussion of Articles 7 and 22 the Advisory Committee
of Jurists evidenced complete awareness that inclusion of the
phrase "in accordance with the present Charter" was intended
to refer forward to Articles 22 and 29, and ta require that subsidi-

ary organs should not only be generally "subsidiary" ta the
"Organization", but specifically subsidiary organs established by
the General Assembly or the Seciirity Council to assist in perform-
ing their respective functions. UNCIO, Advisory Committee of
Jurists, (unpublished) verbatitn minutes, June 9, 1945, 64-71. A
suggestion was made that ':bodies and agencies" should be
maintained in Article 22, but the decision was to substitute "sub-
sidiary organs". Id. at 124-125.
The texts recommended by the Jurists were approved by the
Co-ordination Committee and by the Conference and are the

present texts of Articles 7, 22 and 29. Thus, it will be observed,
the Advisory Committee of Jiirists recognized and gave effect to STATEZlEST OF THE UNITED STATES OF AMERICA 147

the thought that the Charter shoiild provide for only two types
of organ, principal and subsidiary, and made explicit the appli-
cation to the latter of Articles 22 and 29.
The Advisory Committee's action respecting Article S tends in
addition to confirm the conclusion above deduced from the plain
text that a constitutional structure was established composed

exclusively of principal and subsidiary organs. At one point, in
suggesting a shortened form of Article S, the Advisory Committee
of Jurists used the phrase "any of its organs" in order to give
effect to the meaning expressed by Cornmittee 112 in the phrase
"its principal and subsidiary organs". UNCIO \VD 252,Co137 (2).
June IO, 1945. The Committee thereby indicated that it considered
"principal and subsidiary" as including al1 possible organs.
It follows from the inclusiveness of Article 7 and use of the word
"subsidiary" in juxtaposition with "principal" that it is impossible
to find authonty for the creation of a body whose voice could

legaily control future acts of the principal organ which created it.
The tautologies involved in "subsidiary iiidcpendent organ",
"subsidiary snperior organ", "organ subsidiary to and controlling
over its parent, the principal organ", are not lightly to be read
into a legal document like the Charter. If, as a matter of law, the
Generai Assembly were not free to refuse to give effect to awards
of the United NationsAdministrative Tribunal,the General Assem-
blv would be a "principal organ subordinated to its subsidiary".
The proper meaning of "subsidiary" is further clarified by the

organization of the Charter itself. Article 22 falls under the heading
of "procedure". Article 29 falls under the heading of "procedure".
Neither is intended to qualify the scope of the "powers and
functions" previously conferred. Both are concerned with the
means to imvlement Dowers. functions and resvonsibilities of the
principal organ.
The only other use of the term "subsidiary" in the Charter and
th~~Statute of the Court is in Article ZS (1) /dl of the latter. where
reference is made to judicial decisions and teachings of publicists

as "subsidiary means" for the determination of rules of law. Here,
subsidiary, of course, means that where there is conflict between
the principal sources and the subsidiary sources it is the principal
sources which must prevail under the Statute.
Finally, the phrase "for the performance of its functions" in
Article 22 excludes the possibility of creating an independent organ ,
with functions or powers not inherent in the General Assembly.
Again. it is the plain language of the Charter that must prevail
over any assertion that there is power in the General Assembly
to establish an organ endowed with judicial power and functions

from the exercise of which the General Asscmbly is lcgally excluded.
Before the Administrative Tribunal \\ras established in 1949, the
General Assembly had explored ancl confirmecl the rneaning of the
Charter words "subsidiary organ". This it hacl àone when estab-lishing the Intenm Committee of the General Assembly by

Resolntion of November 13, 1947. The vie~vs expressed at that
time and the precedent of the Interim Committee itself bear
forthright witness to the meaning of "subsidiary organ" as it has
been deduced above from its use in the Charter and the records
of the San Francisco Conference.
In explaining the purpose of the proposa1 for the Interim Com-
mittee, Secretary of State Marshall said for the United States :

"The attitude of the Unitcd States towards the whole range of
problems before the United Nations is fourided on a very genuine
desire to perfect the Organization so as to safeguard the security of
Statesand the well-being of their peoples.
These aims can be accomplished only if the untapped resources
the General Assembly and in other organs. The Assembly cannotthrougb
dodgeits responsibilities;it rrtustorganireitself effectively, not as an
agency of intermittent actiort.but on a cor~tinnoz~bsasis. It is for us,
the members of the Assembly, to constmct a record of achievement
in dealing with crucial problcms which wiUbuttress the authority
of the Organization and enable it to fulfilits promise to all peoples."
(Underscoringsupplied.) UN, Off. Rec., Gen. Ass., 2d Sess., 1PV 26.

Mr. Dulles, who represented the United States in the discussion
of the proposal in the First Committee, clarified the scope of author-
ity to be entrusted to the new subsidiary organ :

"To avoid raising constitutional doubts, the United States proposal
did not contemplate any delegation by the Assemhly ofa substantive
discretionary authority given by the Charter. The interim committee
would be only an interna1 organ of the Assembly, similar to others
already created to study questions, and to report and make recom-
mendations to the Assembly, and not to Member States or any
orgaits of the United Nations. The only iiovel authority proposed
\vas tbat of pnor study of possible future agenda items for a plenary
session.
The authority of a body to equip itself to discharge its responsi-
bilities was a clearlv acce~tecl iuridical ~rinci~le. To im~lement its
hroad power ro rccbmmL.;d, the :\sscmbiy c&id or~niii;e its work
:inalsettir>~irt>cr.ilit,.ietiablit to rect,iiiiiieii<liiitrllip:iitly. If the
proposed~c6mmittee \vas more than a 'committee' and \vas a new
'organ', such an organ was authorized h Article 22 of the Charter."
UN, Off. Rec., Gen. Ass., zd Sess., 1st &mm., SR 131-2.
As Mr. Dulles pointed out, the Interim Committee was called

upon to act in a field (political, security and CO-operation) where
the power of the General Assembly could be exercised only by
recommendation to Illembers. Id. at 130. When the General
Assembly exercises its power to establish regulations for the
Secretariat, it necessarily takes action directly affecting the rights
and duties of the staff-action which is controlling on the staff
and not merely recommeiidatory. With this difference in mind, STATEMENT OF THE UNITED STATES OF AMERICA 149

attention is called to the record of the secondsession of the General
Assembly.
The- USSR was opposed to establishment of the Interim Com-
mittee. With its general formulation of the legal situation regarding
subsidiary organs, no serious issue was taken :

"It was clear that it was the provisions of Article 7, paragraphz,
'concerning subsidiary organs that might be established in accordance
with the Charter, that were referred to in Articles 22 and 29 and
rules roo and ror. Those Articles, as he had already stated, did not
give the right to establish subsidiary organs encroaching upon the
functions of the principal organs of the United Nations."Id. at 136.

Mr. Dulles, speaking after the debates in the First Committee
had been concluded, indicated that disagreement lay in application
of the principle to the facts of the case.

"The test must be to define what is meant hy 'subsidiary' and
There could, of course, be differences of opinion as to how todefine
the word 'subsidiary'. However, we have available here a definition
by Mr. Vyshinsky which is gond enough for present purposes. In
the debate before the First Committee he stated with regard to the
subsidiary organs that : 'They are such as wili help the Assembly
to carry out its functions...Their functions-that is, the functians
of subsidia~ organs-can only be to render assistance tothe General
Assembly.' 1 submit that in accordancewith the afore-mentioned
definition this proposed interim 'committee is clearly a subsldiary
body.
....The resolution before vou. which establishes this interim com-

own. The committee is uot able to make any recommendations to
anybody else. The committee can only consider and report to the
next plenary session in order to enable the Assembly during that
session to discharge its duties better in this field." UN, Off. Rec.,
Geri.Ass., zd Sess., II PV.756-57.

The record shows that in establishing the Interim Committee
(with only six opposed and six abstaining), the General Assembly
did so because it believed that it had provided safeguards sufficient
to ensure that the Interim Committee would indeed be subsidiary
to the General Assembly and would not exceed General Assembly
competeiicc vis-à-vis another principal organ, in this case the
Security Council. It is signifiant that the forma1 factors taken

into account were principally that the power of decision of the
General Assembly itself, for example in budgetary matters, would
not be impaired, and that the role of the Interim Comrnittee was $
to be the role of a disciple-to prepare the way and to ease the
path, and at al1 times to observe the word of the master. On the
practical side, a guaranty of incontrovertible strcngth was the
fact that the same Member States were capable of the same150 STATEhlENT OF THE UKITED STATES OF AMERICA

respective voting strength in both the principal and the subsidiary
orgaii. Where, as in the case of the Administrative Tribunal, there
is no such organic correspondence to the principal, the guaranties
of legal control by the principal organ are doubly indispensable.
The words of those who spoke in the second session of the
General Assembly establish clearly the very general understanding,
however they inclined on the policy, that respect for the Charter
demanded a guaranty that the Interim Committee could not
become a voice controlling upon its creator, the General Assembly,
or upon another principal organ, such as the Security Council.
Among the first to speak iii Committee 1 was Sr. Manini y
Rios, representing Uruguay. He said, as the Summary Record
shows, that :

"Moreover, it was certain that under Article 22 of the Charter
the General Assembly could set up temporary or permanent bodies
for the purpose of exercisingits functions. Hence the problem of the
constitutionality of the interim committee did not arise, and the
only question to be settled was a political one regarding the expedi-
ency of setting up that organ.
...That committee'sfunctions would,in fact, consist only in study
and preparatory work, the conclusions of which would have to be
referred to the General Assernbly. It would not have the right to
make recommendations to the Security Council, would not be able
to approve the United Nations budget, and would not deal with
elections to the various organs of the United Xations. The only
point in the United States draft resolution that remained doubtful
rnatters itself." (Underscoringsupplied.) UN, Offd.cec., Gen. Ass.,
zd Sess., 1st Comm., SR 140.

Itis difficult indeed to see tliat a subsidiary organ can he sub-
sidiary if it controls the United Nations budget, in matters within
its orbit, by denying the right or power of the General Assembly
to refuse to give effect to its awards, no matter what grounds
the Assembly might have for rejecting them. If the difference
betaeen principal and subsidiary depends not upon who, in law,
sets the amount to be appropriated, but upon who, in form only,
gives the approval referred to in Article 17, then surely the
guaranties of the Charter are rendered academic. Other members,

in committee and in plenary, in arguing for the constitutionality
of the Interim Committee, showed a large degree of reliance on
the fact that the General Assembly retained the final power of
decision and control over the actions of the Interim Committee.
China :
"
in no way commit the Assernbly."inId. at 140.141.ndations would

Netherlands :
"...The powers and functions of the intenm committee would in
no way duplicateor interfere with those of the Security Councilnor STATEMENT OF THE UNITED STATES OF ARlERlCA Igl

would they infringe upon the powers of the Genera!~Assembly
itself." Id. at 152.
PhiliPPines :

".... the interim committee ....would not be able to take any decision
and would have to limit itself to making recommendations to the
General Assembly on the basis of its findings". Id. at 156.

United Kingdom :
"That committee would in a way represent tvorldconscience, and
its resolutions, thoughlackinglegalexecutive force,wouldundeniably
carry great moral weight." Id. at 157.

Argentins :
"The interim committee would, in point of fact, be equivalent to
a combination of the present six committees of the General Assembly
in a single body. ...the Committees were workiug bodies in which
solutions were discussed and prepared for subsequent submission to
the General Assembly." Id. at 159.

France :
"....the Assembly could not delegate its powers to a subordinate
authority ; for, if it had certain powers, it was in ,virtue of the
guarantees provided by its constitution ....The interim committee
was not to have powers of its own, not even the power to make
recommendations to Governments, but simply the duty of drawing
up proposals for the use of the Assembly itself." Id. at 162-163.
"....the Committee would be subordinate to the Assembly and
therefore a subsidiary organ within the provisions of Article 22".
Id. at 325.

What are the "guaranties provided by its constitution" ? Do they
not include a two-thirds majority for appropriation of funds,

complete control of the acts and.decisions of a subsidiary, injunc-
tions on competence entrusted to the vigilant and effective pro-
tection of al1 mernbers of the body, the power to consult the Inter-
national Court of Justice and be guided by its opinion on any
issue presented involving a legal question ?

Canada .'
"....the interim committee should be given clearly defined responsi-
bilities. It should be a committee of the whole of the Assembly and
should have the right to discuss fully any subject which came on
its agenda, to conduct investigations and report to regular or special
sessions of the General Assembly ;but it should not have any other
powers." Id. at 166.

Mexico :
"The interim committee as a subsidiary organ in accordance with
Article 22. should not be given powers of initiative." Id. at 167. I?zdia :
"Xr. Setalvad (India) said that his delegation had tried, in the
Sub-Committee, to ensnre that the proposa1 for an interim com-
mittee would not infringe the Charter ....the subsidiary character
of the committee was stressed by its main function, ~vhichwas to
report its conclusions to the General Assemùly." Id. at 317.

hrorway :
"....the committee would give the [a] matter preliminary considera-
tion and report on it". Id. at 325.

El Salvador :
"....the final decision would in ail cases rest with the General
Assembly". Id. at 332.

Views were again expressed in Plenary debate :

Australia :
"The resolution is clear. There is no ambiguity about any portion
of it. The body is subsidiary ;it is ancillary to the General Assembly.
It cannot decide; it mnst report." UN, Off.Rec., Gen. Ass., zd Sess.,
II PV 788.

France :
"A subsidiary organ is characterized by the nature of the powers
which are conferred on it. The powers conferred on the interim
committee in the text which is before 11sare extremely limited ....
The interim committee can only submit a report to the General
Assembly. Of course this report, like al1good reports, should be of
some use and may contain conclusions ;but I do not th'ink this in
at 810-811.ects the purely preparatory character of its worl<."Id.

United Kilz~dorn :
"This committee is certainly not intended to be a means by which
the General Assembly can avoid discussion and decision on matters
which may be inconvenient or complicated." Id. at 791.

A word remains to be said of the role of the General Assemhly
in connection with the establishment of international bodies
referred ta in the Charter as "spkcialized agencies" (Articles 57,
59, 63). Article 59 provides :

"The Organization shall, wliere appropriate, initiate negotiations
among the States concemed for the creation of any new specialized
agencies required forthe accomplishment of the purposes set forth
in Article 55."

Under Article 60, responsibility for the discharge of the functioii
set forth in Article 59 is vested in the 'General Assembly and,
under the authority of the General Assembly, in the Economic
and Social Council. STATEMEST OF THE UNITED ST.4TES OF AXERICA 153
Thus as relates to the creation of specialized agencies, which

are capable of independent decisions not subject to General
Assembly approval or revision, the General Assembly must proceed
by negotiation, and depends upon agreement, evidenced by a
treaty or convention, among al1 States concerned to confer powers
of decision on the new body. The international community was
not ready in 1945, and is no more so to-day, to give blanket
advance approval to uncontrolled proliferation of independent or
quasi-independent agencies of international control. It is only if
an organ is to be truly subsidiary that advance authorization
for its establishment is found in the Charter of the Ijnited Nations.

(C) Pyovisions r8gardinglegal interpretationand judicial organs
Decisions of the Secunty Council in its special field of responsi-
bility are expressly binding, and the Council's priority in this
field is given procedural effect by Article 12. Otherwise, while

the General Assembly's interpretation of the Charter would not
be conciiisive upon another principal organ, it is perfectly clear
that the interpretation adopted by another principal-let alone
subsidiary-organ cannot bind the General Assembly. This matter
received considerable attention at the San Francisco Conference.
Proposals to give final power of interpretation to this or that body
were rejected, after due consideration. Instead, Commission IV
adopted the following report on the matter drafted by Com-
mittee IV12 on Legal Problems :

"In the course of the operations from day to day of the various
organs of the Organization, it is inevitable that each organ will
interpret such parts of the Charter as are applicable to its particular
functions. This process is inherent in the functioning of any body
which operates under an instrument defining its functions and
powers. It will be manifested in the functioning of such a body as
the General Assembly, the Security Council, or the International
Charter a provision either authorizing or approving the normalin the
operation of this principle.
Difficulties may conceivably arise in the event that there should
he a difference of opinion among the organs of tlie Organization
conceming the correct interpretation of a provision ofthe Charter.
Thus, two organs may conceivably hold and Inay express or even
act upon different views. Under unitary forms of national govcrn-
ment the final determination of such a question may be vested in
the highest court or in some other national authority. However,
the nature of the Organization and of its operation would not seem
to be such as to invite the inclusion in the Charter of any provisjon
of this nature. If two member States are at variance concerning
the correct interpretation of the Charter, they are of course free to
siihmit the dispute to the International Court of Justice as in the
case of any other treaty. Similarly, it would always be open to the
General Assembly or to the Security Council, in appropriatecircum- STATEJIEST OF THE USITED STATES OF A3IERICh I5j

Even if there were no Articles 17 and 18; no established legal
principle that to imply a poiver it must be a necessary or essential
power ; no Articles 7, S. 22 and 29 ; no Articles 57, 59 and 63-
it is manifest that Articles92 and 96, in the light of the purposes
they are intended to serve, and the objects to be achieved. would
require that no body could be set up by General Assembly reso-
lution with legal power to compel the General Assemhly to a
decision involving a legal question without possibility of modifying
its decision-in the light, perhaps, of an advisory opinion of the
International Court of Justice.

(D) Consideration of doctrilte of separation of powers

The Charter, and the considerations above takeii into account,
appear clearly to establish that the Administrative Tribunal is
not to be regarded as a principal organ or as part of an independent
judicial branch of the international organization. It is appropriate,
however, to note that, even on the wholly unsupportable hypo-
thesis that the Admiriistrative Tribunal were to be so regarded,
the answer to question one would be "yes".
Nothing is more eleinentary in the law of constitutional systems
than that independence of the branches of government-where
independence exists-is a mutual independence by virtue of which

the functions of each branch remain for the exclusive performance,
discretion, aiid decision of each. The doctrine of separation of
pomers cannot logically be invoked to accomplish legal amalgam-
ation of po\irers. If it should operate to make a judicial decision
unreachable by the legislature, it \vould also operate ta make
legislative decisions, especiallya budgetary decision, unreachable
by the judiciary. The 1a~vinvoked to protect a judicial decisioii
from legislative revision is the law of the constitution, and it is
that same law which endows the legislative branch rvith right
and power to its parallel independence. If there is a right to reach
a final judicial decision, if there is an untouchahle res jtrdicata,

there is equally a right to refuse to give effect to that decision
where the action sought is one within the legislative or budgetary
power, such as the act of appropriation to pay an award.
.4lthough constitutional systems based on separation of powers
usually operate in such a fashion that the impasse capable of
arising from the separation seldom actually occurs iii practice,
there can be no doubt that the possibility of such an impasse
is a necessary element in the legal premises of such a system.IV. XOTHING IS THE STATUTE OF THE UXITEDNATIONSADMINIS-
TRATIVE TRIBU'I.&L C.&N BE COXSIDERED TO HAVE DIXIKISHED
THE RESPONSIBILITIES AND POWERS OF THE GENERAL ASSEMBLY
OR TO HAVE PREJUDICED ITS RIGHT OR POWER TO REFUSE TO

GIVE EFFECT TO AWARDS OF THE TRIBUNAL

In establishing the United Nations Administrative Tribunal by
Statute adopted in Resolution 351 (IV)of 24 Novemher 1949, the
General Assembly did not diminisb its responsihility and power to
consider and approve the budget, to cstablish and to fix the meaning
of the Staff Regulations, to consider and take action regarding
work of its subsidiary organs, or to seek advisory opinions on legal
questions from the International Court of Justice : the General
Assembly has consequently reserved its right and power to refuse
to give effect to awards of the Administrative Tribunal.

Indeed, under the Charter of the United Nations, as has been
shown by the preceding discussion, it woiild have been a futile
act for the General Assembly to have purported, by resolution
adopting the Statute of the United NationsAdministrativeTribunal,
to purport to legislate away the power and right of the General
Assembly to consider, discuss and determine what effect to give
to awards of the Tribunal. What the Geiieral Assembly could and
did do was to provide a method for the resolution of disputes
concerning contracts of employment and terms of appointment
between the "Administration" and the members of the staff.

It created an organ subsidiary to the General .4ssembly affording
a nelv and additional method of appeal from decisions of the
.Administration, an organ not merely advisory to the Secretary-
General, its awards not subject to revision by him, and surrounded
by certain safeguards intendetl to assure the availability inal1
cases of appeal to a body capable of impartialinquiryanjudgment.
Implicit in the Statute and explicit in the debates was the expec-
tation that the usual course of events would be acceptance by the
General Assembly of the work of its siibsidiary organ. To have

provided specifically in the Statute for the unusual occasion
requiring critical appraisal of the work of the Tribunal appeared
at once unnecessary and unluise, since the Rules of Procedure of
the General Assembly fully cover the consideration of such matters.
IVhat is more, further express reference \rrould have been inconsis-
tent with the hope and expectation of the General Assembly that
occasion for the exercise of its corrective power should not be
presented by the work of its siibsidiary.
The Statute of the Administrative Tribunal is to be read as a
whole, and this whole, in tum, as a part of a consistent body of

law including, i9zterdia,the Charter and the Staff Regulations.
The provisions of the Statute that are of primary concem are the
following: STATEMEKT OF THE USITED STATES OF AblERIC.4 157

"Statuteof theAdministrative Tribunal O/the United Nations

Adopted by the General Assembly on 24 November 1949
Resolution 351 (IV) with amendments effected by
General Assembly Resolution 78zB (VIII) of g December 1953

Articler. A tribunal is established by the present Statute to be
known as the United Nations Administrative Tribunal.
Article z. (1) The Tribunal shail be competent to hear and pass
judgment upon applications alleging non-observance of contracts of
employment of staff inembers of the Secretariat of the United
Nations or of the terms of appointment of such staff members. The
words 'contracts' and 'terms of appointment' include al1 pertinent
regulations and rules in force at the time of aileged non-observance,
including the staff pension regulations.

(3) In the event of a dispute as to whether the Tribunal has
competence, the matter shall be settled by the decision of the
Tribunal.
.......................

Article 3. (1) The Tribunal shall be composed of seven members,
no two of whom may be nationals of the same State. Only three
. shall sit in any particular case.
(2) The members shall be appointed by the General Assembly
for three years, and they may be re-appointed ;
.......................

(5) No member of the Tribunal can be dismissed by the General
Assembly unless the other members are of the unanimous opinion
that he is unsuited for furcher service.
.......................

Article 5. (2) The expenses of the Tribunal shall be borne by the
United Nations.
.......................

Article7. (1) An application shall not be receivable unless the
person concerned has previously submitted the dispute to the ]oint
appealsbody provided for inthe staffregulations and the latter has
communicated its opinion to the Secretary-General, except yhere
the Secretary-General and the applicant have agreed to submit the
application directly to the Administrative Tribunal.
Article 9 (35r(IV)) Article9 (782B(VIII))
If the Tribunal finds that the 1. If the Tribunal finds that
application is well founded; it the application is well founded, it
shall order the rescinding of the shall order the rescinding of the
decision contested or the specific decision contested or the specific
performance of the obligation performance of the obligation in-
irivoked ; but if, in exceptional voked. At the same time the1j8 STATElllENT OF THE UXITED STATES OF AllERICA
circumstances, such rescinding or Tribunal shall fix the amount of
specific performance is, in the compensation to be paid to the

opinion of the Secretary-General, applicant for the injury sustained
impossible or inadvisable, the should the Secretary-General;
Tribunal %hallwithin a period of within thirty days of the notifi-
not more than sixty days order cation of the judgment, decide,
the payment to the applicant of in the interest of the United
compensation for the injury sus- Nations, that the applicant shall
tained. The applicant shall be be compensated without further
entitled to claim compensation in action being taken in his case ;
lieu of rescinding of the contested provided that such compensation
decision or specific performance. shall not exceed the equivalent
In any case involving compensa- of two years' net base salary of
tion, the amount awarded shall the applicant. The Tribunal may,
be fixed by the Tribunal and however, in exceptional cases,
paià by the United Nations or, when it considers it justified,
as appropriate, by the specialized order the payment of a higher
agency participating under arti- indemnity. A statement of the

cle 12. reasons for the Tribunal's decision
shall accompany each such order.
z. Should the Tribunal find
that the procedure prescribed in
the Staff Regulations or Staff
Rules has iiot been observed, it
may, at the request of the Secre-.
tarv-Geueral and nrior to the
decerinination of .the merits,
order the case remanded for insti-
tution or correction of the re-

quired procedure. \Vhere a case
is remanded the Tribunal may
order the payment of compensa-
tion, not to exceed the equivalent
of three months' net base salary,
to the a~nlicant for such loss as.
may ha;; been caused by the
procedural delay.
3. In al1applicable cases, com-
pensation shall be fixed by the
Tribunal and paid by the United
Nations or, as appropriate, hy

the specialized agency participat-
ing under Article 12.
Article10. (2) The judgmeiits shall be final and without appeal.

...................... .

(5) A copy of the judgment shall be communicated to each of the
parties in the case. CopiesshaU also be made available on request to.
Interested persous. - .

Article II. The present Statute may be amended by decisions of^
the General Assembly. STATEJIENT OF THE UNITED STATES OF AhlERICA 159

Article12. The competence of the Tribunal may be extended to
any specialized agency brought into relationship with the United
Nations in accordance with the provisions of Articles7 and 63 of
the Charter upon theterms established by a specialagreement tobe
Xations. Each such specialagreement shall provide that the agency
concernedshall be bound by the judgments of the Tribunal and be
responsiblefor the payment of any compensation awarded by the
Tribunal in respect of a staff member of that agency and shall
include, intealia,provisions concerningthe agency'sparticipation
in the administrative arrangements for the functioning of the
Tribunal and concerningits sharing the expenses of the Tribunal."

The Administrative Tribunal is thus a subsidiary organ deriving
its authority from a General Assembly resolution capable of being
rescinded or amended by the General Assembly. Its Statute
regulates the composition,servicing, and operations of the Tribunal,
and leaves its financing for annual action of the General Assembly.
As with most subsidiary organs, the "members" are chosen by

the General Assembly itself, for limited terms. They are subject
to removal bv the Assemblv with the concurrence of their fellow
members.
The Tribunal's competence is defined by the Assembly, which
has left it to the Tribunal to decide auestions of comnetence in
disputes between the parties. These pariies are the Admhistration,
headed by the Secretary-General as the chief administrative
officer, and the members of the staff, or those entitled to claim
through them. No right of appeal is given to the parties from the
decisions of the Tribunal, which are final iri the sense that no
further remedies are accorded by the Statute or the Regulations,
except-and the point is an important one-that the pre-existing

final revieur by the Secretary-General remains, narrowed, however,
under Article 9, to the power to refuse, in his discretion, to give
effect to a judgment calling for rescission or specific performance.
The question of compensation is out of his hands and left with
the Tribunal.
While it is provided that the United Nations shall meet the
regular budget of the Tribunal, payment of compensation is the
responsibility of the United Nations or of the specialized agency
concerned, depending on the parties involved. This Statute would
not, even if it could, impair the right and power of the General
Assembly to abolish the Tribunal, to amend its Statnte, to regulate
the application of its judgments, or to refuse to give effect to its

awards of compensation. The supporting legal precedents, historical
material and other documentary matter will be reviewed under
three heads :
(A) Preparatory Commission and Drafting Committee
(B) The' League of Nations mode1

(1) Position in history160 STATEMENT OF THE UXITED STATES OF AIIERICA

(2) Statute of the League of Nations Administrative Tribu-
nal : 1946 precedent and its background
(C) Decisions of the United Nations General Assembly

(A) Preparatory Commission ami Drafting Committee

On 12 November 1945 the Executive Committee of the Prepara-
tory Commission of the United Nations submitted its Report to
the Commission. UN, Off. Re(:., PC/EX/x13/Rev. 1. It assigned
priority and importance to the matter of securing confidence of
the Alember States in the efficiency, competence and integrity
of a staff.who would discharge their functions and regulate their

conduct with the interests of the United Nations only in view :
"Consideringthat the degree in whicli the objects of the Charter
can be realized will be largely determined by the manner in which
the Secretariat perfonns its task. and that the Secretariat cannot
successfullyperform this task unless it enjoys the confidence 01al1
the Members of the United Nations ;
Recommends :

I. That appropriate methods of recruitment be established in
order that a staff may be assembled which is characterizedby the
highest standards of eficiency, competenceand integrity,due regard
beingalsopaid to its recruitment on as wide a geograpbical basis as
possible;
2. That al1officials,upori assuming their duties, make an oath or
declaration that they will discharge their functions and regulate
their conductwiththeinterestsofthe UnitedNationsonlyinviev; ...."
(Underscoringsupplied.) Id. at 71-7 ;210.11.

A very different order of priority was assigned, by the 76th para-
graph of the Executive Committee's Report, to the establishment
of an .4dministrative Tribunal. It read :

"76. Early consideration should be given to the advisability of
establishing an Administrative Tribunal to adjudicate on any com-
plaint lodged against the Organization by an officialin connection
with the fulfilment of the terms of his contract." Id. at 83.

The Preparatory Commission adopted as its own with minor
changes the recommended principles emphasizing integrity and
confidence. Report of the Preparntory Commissiorc of the United.
Nations, UN, Off. Rec., PC/zo, 81. In elaboration it also said :

"Al1officialsof the United Nations must recognize the ezclusiue
authority of the Secretary-General and submit themselves to mles
of discipline such as are riormally enforced in national civil serv-
ices...." (Underscoringsupplied.) Id. at 85.
The Commission's draft Provisional Staff Regulation made no
provision for a Tribunal; instead tbey provided for interna1
machinery for settling complaints : STATEMENT OF THE UXlTED STATES OF AJlERICA 161

" Regulation23. The Secretary-General shaU establish administra-
tive machines. for enquiry and appeal in disciplinary and termina-
tion cases. This machines. shaU provide for staff participation."
Id. at 97.

On December 15, 1945, the Sub-Cornmittee on Staff Regulations
of Committee 6 of the Preparatory Commission submitted a revised
text for paragraph 76 of the Executive Cornmittee's Report which
was approved by Committee 6 on December 21. UN, Off. Rec.,
PCiAB/45; UN, Off. Rec., PC/AB/56/Rev. z, para. 68; UN, Off.
Rec., PC/AB/67, 3. Tlie ncw text read :

"68. An Administrative Tribunal should be established at an
early date. It should be competent to adjudicate on any dispute
arising in connection with the fulhent of an official's contract.
The Secretary-General should be authorized to appoint a small
advisory committee, possibly including representatives of the staff,
to draft a statute for tlie Administrative Tribunal for submission to
the Assembly. The Tribunal might ,inchde an expert on relations
between employers and employed in addition to jurists."
According to the summary record of Committee 6,

Paragraph 68 :Administrutive Tribunal. The question was raised
asto whether the Administrative Tribunal or the Secrctary-General
should have the last word on disputes submitted to the Tribunal.
The general sense of tlie Committee was that the Administrative
Tribunal was a Supreme Court and that its decisions were final.
A proposal to Say in the second sentence that the Tribunal should
be competent to adjudicate on any legaldispute was rejected on the
ground that it might lead to endless discussionas to whether any
particular dispute was a legal one. It mas recognized that the title
'Administrative Tribunal' might give rise to misapprehension as to
the scope of its functions, but it was made quite clear that the
Tribunal would deal only with questions of the interpretation of an
official'sntract and with the claims of officiaisfornon-obscrvance
of the contract, and not with matters of internal administration
which the Secretary-General's decisionwould be final." PC/AE3/67,3.

On Decernber 28, 1945, in his report tothe Plenary oii the work
of Cornmittee 6, Mr. Aghnides, its Chairman, did not mention

the Administrative Tribunal. UK, Off. Rec., Preparatory Com-
mission, 27 Journal 11-16, The Commission approved the Report
of Committee 6 without fiirther discussion of the mattcr. Id. at 16.
In its fiiial Report, the Preparatory Commission included the
following recommendation concerning the organization of the
Secretariat :

"4. The Secretary-General should be authorized to appoint a
small advisory cornmittee, possibly including representatives of the
staff, to draft for submission to the General Assemblya statute for
an Administrative Tribunal." UN, Off. Rec., PC/zo, 81.
12162 STATEDIENT OF THE UNITED STATES OF AMERICA

This recommendation derived from the final report of Committee 6
(UN, Off. Rec., PC/AB/71. 2 ;PC/AB/65) and was supported by
paragraph 74 of Section 2 of Chapter VI11 of the Preparatory
Commission's Report, whi~h reproduced paragraph 68 of the

Report of Committee 6. Id. at 514.See text quoted at p. 141, supra.
When the General Assemblq- convened for the first time, the
situation was that the Preparatory Commission, in its recom-
mendations concerning the Secretariat. had assigned primary
emphasis to the importance of enabling the Secretary-General to
achieve the highest standards cifefficiency, competence and integ-

rity in the staff. 'The Commiççion had recommended provisional
staff regulations under which internal appeals machinery ~vould
be established, and the Commission had recommended an authori-
zation to the Secretary-General to arrange for the drafting of
a statute for an administration tribunal.
The Preparatory Commission itself had not discussed the project
for an administrative tribunal, nor had it approved the summary

record of the discussion in its Cornmittee 6 on paragraph 68. The
summary record expressed, as "The geueral sense of the Commit-
tee", "that the Administrative Tribunal was a Supreme Court
and that its decisions were final." However, it was made explicit
in the Committee discussion that "the Tribunal would deal only
with questions of the interpretation of an official's contract and

nith the claims of officials for non-observance of the contract,
and not with matters of interna1 administration which would
go before internal bodies withiii the Secretariat and in which the
Secretary-General's decision would be final". Moreover, the sum-
mary record shows that Committee 6 meant by its expression to
indicate that as between the Administrative Tribunal and the
Secretary-General the Tribunal shonld have the last word on

disputes submitted to it. There was no question of creating an
administrative tribunal as a new judicial organ CO-ordinatewith
the principal organs of the United Nations. The Gcneral Assembly's
powers clearly were not at issue.
General Assembly Resolutiou 13(1).11 of 13 February 1946
authorized "the Secretary-General to appoint a small advisory

cornmittee, possibly including representatives of the staff, to
draft, for submission to the second part of the first session of the
General Assembly, a statute for an administrative tribunal".
UN, Off. Rec., A/64, 15. I'ursitant to this Resolution, the Secre-
tary-General appointed a Comtnittee \\-hich met at Lake Success
September 16 to 26, 1946~. The Committee prepared a report
and draft statute. In the former it stated, inter alia :

' The members were Hon. Th. Aghnides, Chairman; Judge Manley O.Hudson ;
Joseph Nisot (formerly Registrarof the League's Administrative Tribunal) :
LadislavRadimsky ; Jean Herbert (Chairman. Permanent Staff Committee
alternateFrank Begley): M. Perez-Guerrero(Secretafiat-alternateJ. G. Stew-
art; Marc Schreiber (Permanent Staff Cornmittee-alternat: E. Ranshofen-
Wertheimer) ; Mrs. Isobel Wallace (Secretari; David hl.Levitan (Secretariat)..
Secretary and technical consultato Committee. "The nature of the Ad~i~i~ ~ ~ ~ ~Tribunal envisaeed in -~e
General Asseinbly'sResolution was indiczd in the sum&ry record
of meetings of Committee 6 of the Preparatory Commission. It was
intended to 'deal only witli questions of the interpretation of an
official'scontract and with the claims of officialsfor non-obser\raiice
of the contract, and iiot with matters of internal administration
which eo before internal bodies within tli~ -~cretariat and in which
the ~eGetary-~eneral's decision would be final'. The coimittee has
been euided bv this indication, and in its deliberations it has held
beforë itself the two objectives of a simple organization and an
expeditious procedure. The draft presented is therefore quite short,
and it is not burdened witli provisions of detnil.
For the most part, international organizations in tlie past have
Iiad but sinall staffs, and therefore tliey Iia\re iiot felt a need for a
special juris<-lictionfor handling disputes. This was not true, how-
ever. of the Secretari:lt of the Le:ieue of Nations and the Inter-
national Labour Office, and since Ï9z7 these organizations have
maintained the Leagne of Nations Administrative Tribunal which
has functioned withkery considerable Success.
The committce has sought to take full advantage of this
experience. The League Tribunal decided twenty-one cases in the
period from its organization in 1928down to 1939,and sixteen cases
in 1946 ...."UN, Off. Rec., Gen. Ass., 4th Sess., 5th Comm.,,SR,
1 Annex 150.

From this text, and from the background of the Committee
members, t\vo things are clear. First, the drafters envisaged their
authority as limited to the Assembly Resolution, which they
construed in the light of the ivork of the Preparatory Commission
to rnean that the tribunal was not to deal with matters in which
the Secretary-General's decision would be final. Second, the Com-
mittee hcwed closely to the League mode1 and exl>ressly acknow-

ledged its admiration for it :

"The success of the League of Xations Administrative Tribunal
leads the advisory committee to believe that a United Nations
Administrative Tribunal, estahlished along the lines proposed. would
be a useful body for safe uarding harmony between the United
Nations and its officials. bithout in any way embarrassing the
authorities responsible for the conduct of administration. it would
give assurance to officials as to the protection of their contractual
rights. The United Nations is not suable in any national court
without its consent ; nor can it be sued by an official in the Inter-
national Court of Justice. Ry crcating a tribunal to serve as a
jurisdiction open to its many officials of various nationalities, the
United Nations will be acting not only in the interest of efficient
administration, but also in the cause of jiistice." Id. at I~I-152.

\\Then Mr. Aghnides explaincd the report and draft statute
developed by the Secretary-General's Committee to the Fifth
Cornmittee on Xovember 15, 1946, he stressed that the Tribunal
\\.ouid offer a guaranty of independence /rom the SecretBr>)-Geileral STATEMENT OF THE USITED STATES OF AMERICA 165

or whether they would he subject to a revision by the General
Assemhly.
The Rapporteur replied that according to the draft statute as
the administrative tribunal.mThe Advisory Committee feared anrom
adverse effect on the morale ofthe staff ifappeal beyond the admin-
istrative tribunaldelayed the final decisionin a case which had
already been heard before organs within the Secretariat created for
that purpose." (Undencoring supplied.) Id. at 114.

There was no extended discussion of the draft statute. The
Committee decided unanimously to postpone consideration,
'pending further study by the Secretary-General. Id. at 117.

(B) The League of Nations model
To understand the establishment of the Administrative Tribunal
as a subsidiary organ of the United Nations General Assembly,
it is important to understand the function of an administrative
tribunal in the framework of the League of Nations and United
Nations, and particularly the history of the League Tribunal

whose Statute was the model for that of the present Tribunal.
(1) Position in history and comparative juris$rudence

Administrative tribunals in the field of international adminis-
tration are relatively new and clearly in their formative stage.
Administrative law, and more particularly the law governing the
terms of public employment, in the States Mernhers of the United
Nations reflects differencesin policy, background and institutions,
and is in various stages of development. The Administrative Tribu-
nals and Staff Regulations of the League of Nations and of the
United Nations represent an experiment in compromise among
national traditions and in the evolution of an international system
which is necessarily sui generis, and in which an important consider-
ation has been to allow room for the development of the new

system.
Writing of the League of Nations Administrative Tribunal,
Egon F. Ranshofen-Wertheimer succinctly stated the position
of both the League and United Nations organs :
"The whole evolution which found its conclusion with the estab-
lishment of the Tribunal may perhaps hest be characterized as a
fair and workable compromisehetween the concepts of Anglo-Saxon
law with respect to civil service tradition and Latin and Germanic
concepts of civil service rights and safeguards." The Internniional
Secretariat(Washington, 1945). 262.

The factors making the new institutions sui generis were clearly
apprehended in a scholarly study, written in 1931 by the present
President of the United Nations Administrative Tribunal. Suzanne
Basdevant, Les Fonctionnaires internationaux (Paris, 1931) The166 STATEhlENT OF THE USITED STATES OF AMEHICA

author discussed at some le~igth the novel responsibility of the
Administrative Tribunal established by the League of Nations to
apply a set of legislative mles without benefit of any single accepted
body of administrative law. Thus :

"Thc Statiite ofth? Atliiiinijtr:iti\~çl'ribiinnl iontaiiis ri0prii\.ijion

annlogniis to thnt of :\rtticlc 3' 1'3 sjni tlie St:ttiite of ttie l'criiinrieiit
Coiirt. dctermiiiiiig ivl.;.t ihniilcl Ilrthe princil)les of I:iiv:il)plicnblé
b!. thxt jurisdictioii Of coiir;? tliey jhould Le. :ibo\.e :III. ttic pcr-
soiincl rcgiil:itioiis ;ind rcciiiitinent coiitr:icts. siiisc ir is cliieily a
m:itter of settlinr: dificiiltics li'isiiigout of tlic cuiitrnctii;il situ:ition
of officinls: hiiti<li:it\\.il1Ii.ippcn !ch<-iiiicliregiil:itionj or coiitr;içts
pro\,<:t~ be inndcquate : iri\ \vortli!,uf riote tli;it bCfi,rc.tliis iiiter-
iiatioiill tritiiinal ttir:i,rincii;lrj of interstdtkLw\ciIl LC of no acsist-
nncc. sincc it ij;irn~itrr of'rct:~il.~tin,r:clltii)iiJ L>C~\I.L ii'~l.~idii.ils
onc of \r,liuriircprcieiitj th? iiitcrn;ition:il i)iiblic;cr\,ise1t isob\.ioiis

that one will be tempted to apply principles of public municipal
law, of administrative law, since that is where one will find a situ-
ation presenting the closest analogy with that of the officials in
Geneva. But which municipal administrative law should be applied ?
Will there be a sufficiently established ordinary law on the point
under consideration ? Al1this may be extrcmely difficult to resolve.
In the decisions it has handed down. the Tribunal has alreadv
becri Ied to considcr tliij prohl<:ni.On ~ai~uar~ 16, 1929. it I;iiddo\\,;
aj a principle tlitit it niiii :ipply the iniinicil)al 1:iwof tlic Leagiie of
Sations. foniiiilntcd cittier hv n xcnernl statute or bv decisiuni and
texts envisaging certain spicifi< cases, as well asthe conditions
agreed on between the adnlinistration and its officials, and that it

is only in the absence of positive law in the case in point that it
would be proper for the Tribunal to have recourse to the general
principles of law and equity." Id. at 283 '.

' Translation. The French text reads :

"Le Statut du Tribunal administratif ne contient aiieune disposition analogue
à celle de l'article32 du Statut de la Coizr perinanente et déterminant quelles
doivent &tro Ics rdtlglde droit applicables par cette juridiction. Bien entendu, ce
doit etre avant tout les statuts du per:ionncl ct les contrats d'engagements, puis-
qu'il s'agit essentiellement do trancher des difficultés rbsultant de la situation
contractuelle des fonctionnaires ;maisqu'adviendra-t-il lorsque ceux-ci se montre-
ront insuffisants: il est remarquable que devant cette juridiction international*.
les regles du droit interetatique ne seront d'aucun secoursp.uisqu'il s'agit de
régler des rapports entre individus dont l'un représente la chose publique inter-
nationale. Il crt évident qiie l'onseratente d'appliquer des regles de droit public
interne. de droit administratif, puisque c'est là que l'on trouvera une situation
présentant le plus d'analogie avec celle des fonctionnaires de Geneve. Mais quel
droit administratif interne appliquer ? Existera-t-ilsur le point considér6 un droit
commun suffisammen éttabl?iTout ceci peut êtreextrémement difficile Arésoudre.
Le Tribunal a déjà éte amen6 dans les décisions qu'il a rendues à envisager ce
probleme. Le 16 janvier 199.9.il posait en principe qu'il est tenu d'appliquer le
des décisions et textes envisageant telsforcas determinés, ainsi que les stipulations
intervenues entre l'administration et ses fonctionnaires et que ce n'est qu'à défaut
de i'existence dans telle espece d'undroit positif qu'il y aurait lieu pour le Tribunal
de s'en référeraux principes gddvou* du droit etd I'$uilP." STATEDIENT OF THE UNITED STATES OF AMERICA 167

As the author observed, "this question of, so to speak, accessory
law might give rise to serious difficulties". Id. at 284 '.
Only 23 years have intervened since the above study was written,
and these have been interrupted by the events of IVorld War II.
Professor Hudson remarked of the League Tribunal : "As affirmative
relief was given in only eight cases, the jurisprudence did not

establish an extensive body of case law." Hudson, International
Tribunals (Washington. 1944). 221. Almost twice that many
individual cases were decided by the Tribunal in 1946 and were
reversed by the Assembly of the Lcague. Since the establishment
of the United Nations Administrative Tribunal about four years
ago, there have been only 46 cases, of which 21, almost half, are
the cases out of which stems the present request for an advisory
' opinion. The jurisprudence of international administration is, to

Say the least, lacking in the traditions and long legal background
of such an institution as the Conseil d'gtat.
Indeed, any assumption that the legal relationship of the Admin-
istrative Tribunals of the United Nations or the League to their
respective Assemblies is to be explained in terms of the legal
system of any Member State ratlier than of the Charter of the
United Nations would be unfounded. This is so because of a number
of relevant factors.
In the first place the several municipal systems are the product

of their own particular history and circumstances. In France,
for example, administrative law was born out of fortuitous political
circumstances rather than logical necessity. The revolutionary
leaders of 1789, fearful that the judiciary would fmstrate the pur-
poses of the new legal order, denied ta the courts any power of
supervision over the administration. The necessity of stopping
arbitrary actions by the executive later led to the doctrine that
the administration should not be its own jiidge, but should be

bound by the decisions of specialized and independent adminis-
trative courts. See Waline, Traité de Droit administratif (5th ed.,
1g50), 40-45. Not only have different results been produced in
the same and among different couutries by different political
problems, but there is no automatic correspondence of United
Nations problems-international organization problems-and those
of particular municipal systems. Thus, France sought to solve
the constitutional impasse resulting from a practice of division of
powers based on distrust of the judiciary by developing in the

Conseil d'État powers at least equal to those of the courts of law.
However, in the United Nations the original of the Adminis-
trative Tribunal was very different. It was not established as a
court ta uphold the rights of al1 the citizens, including the civil

Translation. The Frenc:

lieàtde serieuses difficultes".e. pouainsi dirà.appliquer, puisse donner168 STATEYEKT OF THE UNITED STATES OF AMERICA

servant, against iliegal acts of the Administration. It was a body
specialiy established to add to existing protections afforded the
staff by regulations of the General Assembly that of a forum not
directly responsible to the Administration. The Administrative

Tribunal is as little comparable to the Conseil d'État as it is to
the United States Federal Courts, a judicial system headed by
a Supreme Court, founded in the Constitution itself as an inde-
uendent iudiciarv. and dedicated to the protection of al1 the
people of-the co;ntry.
Xot only must national and international historical factors

and constitutional frameworks show widest divereencies. but the
basic çharacter and guaranties of judicial bodies kust "ary with
their own particular historical place and their organizational '
pattern. Tbus, the Conseil d'État, the Administrative Court at
Vienna, the Administrative Courts of the German or Belgian
systems, the Federal Courts in the United States, are al1 insti-
tutions with a multitude of safcguards against error or arbitrary

action which are, in turn, the pioduct of many years of tradition,
legal development and, significantly, of intemal judicial checks
and balances. It is upon the uisdom and good will of the con-
stituent botlies of the international organization and its Member
States that the fledgling institution must depend for timely correc-
tion, and sound political guidance in its important but necessarily
uncertain grourth. Even in a municipal system, like the French,

an authority like Professor Jèze, while noting the fundamental
principle that "The jurisdictional act, properly made, has the
force of legal truth erga onznes, for al1 individuals, as well as for
al1public agents of any type, [and] for any type of court" (Gaston
Jèze, Les $rinci$es générauxdu Droit administratif (Paris, 1925).
2 59 '), goes on to observe :

"\flhere the chances for error are very small, it is fit to adhere
to the fundamental principle. Where the chances of error are great,
it is proper to reject the fundamental principle and to hold that,
by exception, the binding effect of a judgment shall be only rela-
tive." (Italics in text.)Id. at 261 '.

Absent a mature body of law, a long judicial tradition, a developed
appellate structure, a wide jurisdictional hase and corresponding
responsibility for balance of al1 interests of the community, a
new quasi-judicial orgaii is subject, it is çubmitted, to very con-
siderable chance of error.

' Translation.The French :
"L'acte juridictionnerégulier a forcde vérité légaergo oninas,pour tousles
particulierscomme pour tousles agents publics de tout ordre. pour les tribunaux
de tout ordre."

2 Translation.The lirencli :
"Là où les chances d'crresonttr&ç (aibleily a lieu de s'en tcnau principe
fondamental. Là où les cliancrs d'erreur sont grandes, il conviend'écarter le
principefondamental et de decider que, parexceptiola choscjugCen'aura qu'une
force relative." Finally, it is observable that even in highly developed municipal
systems, finality of judgments is a strong tradition, but is not,
as a matter of law, capable of diminishing the legal rights and

powers of parliamentary bodies. The same principle which upholds
the power of the judicial organ to pronounce a "final" judgment
upholds that of the legislative organ to make a "final" budgetary
decision. This matter has been referred to before, but it may
be worth noting the observations of Jèze on the subject :

"In France no' tribunal-whether it may be an administrative
tribunal or a court of law-can enioin the budcetarv authoritv-
whatever it may be (Parliament, i8cai assemb etc:)-to writ"ea
credit in the budget." Id. at 286 '.

Similarly, the principle of separation of powers runs also to non-
budgetary decisions. For example,

"Does the Parliament have a juridical duty to bow to court
decisions ? Does it commit an abuse of power in formulating a
general rule which is declared applicable notwithstanding judicial
decisions already res adjudicata ? Inorgnnizifzga process O/ reva'ew
and in declaring it a$plicable even as against decisionsalrendy res
adjudicatn ?
The fundamental principle of the absolute binding effect of
decisions should lead, according to some, to an affirmative answer.
Certainwriteusteachthatsuchis indeedthernlein FrenchPublicLaw.
But the practice is not that way." (Uuderscoring supplied.)
Id. at 274-27 a.

There are, of course, very numerous and respected authorities
who assert the legally binding effect of judgments upon parliaments
in municipal systems. In their view the departure of deliberative
bodies from their usual policy of forbearance is an "incredible"
disregard of fundamental legal principle. This was the attitude
of Professor Scelle, for exainple, toward the 1946 League Assembly
decision which is discussed below. See Langrod, Le Tribunal
administratif des Nations Unies, LXVII, Revue du Droit public

et de la Science politique (~gsr), No. 1, 71, 80 (note 38 quoting

1 Translation.The French :
"En France. aucuntribunal - quel qu'il soit. administraoii judiciair- ne
peut enjoindre àl'autorité budgétair- quelle qu'elle soit (Parlemenassembl6e
locale, etc.- d'inscrirun cr6dit au budget....''
Translation.The French :
"Le Parlement a-t-il l'obligation juridde s'incliner devant les décisions de
justice ? Commet-ilun abus de pouvoir en formulantune règle générale. d6clarée
applicablenonobstant toute décision de justice, même passée en force de chose
jugée ? en organisantun recours en reviçion et en le déclarant recevable même
contre les décisiopassees en force de chose jugée ?
Le principe fondamental de l'autorité absolue de la chose jugée conduirait,
d'aprhs certainsà la solution affirmative.
Certains auteurs enseignentue telle est bien la règle du droit public fran~ais.
Mais la pratique n'est pen ce sens."170 STATEJIENT OF THE UNITED STATES OP AalERICA
with approval from Professor Sceile, Cof~rsde Droit international
fiublic, manuel polygraphié (1948), 568). The point is that even
as to municipal systems "l'aiitonté de la chose jugée" rests on

policy and as far as law goes, is an ideal, a slogan, and a starting
point for profound philosophical differences of opinion. These
differences need not intrude themselves into the legal problem
of the United Nations Administrative Tribunal, however. Enough
has been said to show that this relatively important but secondary
international organ serves ends and is established in a legal and
political framework in which "l'autorité de la chose jugée",particu-
larly where the judging is by a subsidiary organ. cannot operate
in lam to inhibit the power, right and responsibility of the
United Nations General hssernbly.
Another important area of difference between the United Xations
Administrative Tribunal and the tnbunals of general or specialized

competence dealing with the grievances of civil servants in
municip:ll systems is the relative importance attached under the
relevant laws ta "acquired rights" as a condition of service.
hlthough, as has been showvnabove, it is at leasbdebatable whether
there is anywhere an "acquired.right" to a particular judgment
legally compelling upon the law-making body itself, it is certain
that there is none in the United Nations, and even the presumption
of a legislative intent ta respect other rights as "acquired" has
much less standing in the United Nations than in a municipal
legal system. For example, there is no provision in the Charter
comparable ta Article 33, paragraph 5, of the Constitution of the
Gerrnan Federal Republic under ~vhichthe "principle" of acquired
rights is written even inferentially into the United Nations Char-

ter, let alone express inclusion, as in Article 129 of the Weimar
Constitution.
The United Nations system emphasizesreasonable rather than
absolute security of tenure, accompanied by stronger inducements
of an intellectual and monetary nature then would ordinarily
be found in municipal systems. The conditions of employment of
the international service were :itthe outset established on a liberal
basis. Beuefits represented the best features of the many national
systems. Thus, the Preparatory Commission recommended that
the salary and allowance scales "should compare favorably with
those of the most highly-paid home and foreign services, due
account being taken of the special factors affecting service in the
Secretariat". U-I, Off. Rec., PC/zo, Report of the Preparatory
Commission of the United Nations, 93-94. This was done not only

to attract the best talent but also to compensate for the fact
that other considerations would prevent- the United Nations from
providing the same tenureguaranties and promotion opportunities as
national services. These considerations were the need for flexibility
in a pioneer organization ; and the recognition that the interests
of the organization required a conscious policy of continuous STATEhIEST OF THE UNITED STATES OF A3IERIC.A 171

~ecmitment of new talent at al1 levels-talent which was ais0
widely representative on a. geographical basis.
At the very least, then, it must he stated that in the period
of the early development of an international public service it
was to be expected that when new and thorny problems anse
as to which there are sharply conflicting views, so that they
transcend the power of a meagTe jurisprudence to resolve, and
when they rise to the level of questions of major and general
importance, solution must, as a matter of law, be by a body with
legal and actual power to reconcile the conficting views of Member
States and to pool the combined efforts of their consideration
and experience-the General Assembly.

(2)Statute of the League of Nations Adnzinistrative Tribz~nal :
1946 precedentand its background

The Statute. of the United Nations Administrative Tribunal
was essentially modeled on the Statute of the League Tribunal ;
authoritative construction of the old League Statute has particular
relevance where .the General Assembly chose to maintain its
provisions in the new United Nations Statute.
The Covenant of the League vested appointive power for the
Secretariat in the Secretary-General acting with the approval of
the Council. Art. 6 (3). In practice, the League Council's role was
a passive one ;it never actually vetoed an appointment. Ranshofen-
Wertheimer, op. cit. su$ra43. The provision of the United Nations
Charter that "regulations" are "established by the General
Assembly" reflects forma1 adoption of the system which evolved

under the Covenant, which was itself silent on the matter of
staff regulations. The League Assembly, in reliance on its broad
powers under Article 3 (3) of the Covenant (and in discharge of
its special responsibility for the budget under Article 6 (5) of
the Covenant, after adoption of this amendment in 1924), assumed
an active role in relation to the Staff Regulations of the League.
Although it was the Secretary-General who "adopted" al1 regu-
lations, they were actually subject to approval by the Assembly,
whose decisions were the work of the Assembly's Fourth Com-
mittee. Id. at 21-31, 256 ff. ;André Cagné, Le Secrétariatgénéral
de la Sociétédes Nations (Paris, 1936),44. Furthermore, the Super-
visory Commission of the League, responsible to, and appointed
by, the Assembly in. its Iater years, had a major part in this
,evolution. Ibid.
The Statute of the Administrative Tribunal of the League of

Nations was adopted by the Assembly in 1927 after favorable
action by its Fourth Committee. L. of N., O.J.,Sp. Supp. No. 54,
201 ;L. of N., O.J., Sp. Supp. No. 58, 35-36. The Statute of the
League Tribunal provided in Article VI :172 STATEMENT OF THE UNITED STATES OF AMERICA
"The Tribunal shall take decisions by a majority vote; judg-
ments shall be final and without appeal."

Article II (4) provided :

decided by it."as to the competence of the Tribunal shall be

It will be recognized that these provisions were maintained in
Articles IO and 2 of the Statute of the United Nations Adminis-
trative Tribunal.
Did these provisions evidence an intention by the League
Assembly to foreclose review by it of the work and decisions of
the Tribunal ? Did they deprive the Assembly of right and power
to refuse to give effect to awards of the League Tribunal ? The

legislative history strongly urges, and the precedent of the thirteen
decisions rejected by the Assembly in 1946 compels, negative
answers. The Report of the Supervisory Commission of the League
of Nations, which draftedthe Statute of the Tribunal, stated these
reasons for the proposed measure :
"The establishment of a Tribunal such as is now proposed is
expected not merely to remove a grievance which may be felt by
the staff of the Secretanatand of the International Labour Office
but also to be in the interest of the successful administration of
these two offices.The international status of the League prevents
officials fromhringing actions in the ordinary courts to enforce
the terms of their appointments. It is not, however, satisfactory
that a class of employees amounting to several hundreds of persons
and engaged on terms which are necessarily complicated and may
give rise to disputes as to their exact legal effect should have no
Possibility of bringingqnestio+ss to their nghts to the decision of a
judicial body. It is equally unsatisfactorfor the administration to.
be both judge and party in any dispute as to the legal rights of
their officials, or for such disputes to be referred to the Council
or the Governing Body of the International Labour Office. The
special position of the League makes it difficult to refer claims by
its officials to thejurisdiction of national courts. The remaining
possibility,namely, the reference of such disputes to a body consti-
tuted ad hoc, although it has been adopted in one case, is open te
objections on many grounds and does not furnish a solution for
the general problem." (Underscoring supplied.) L. of N., C.J.,
sp. Supp. NO.56, 251.
It is particularly to be noted that it was "the administration",
not the Council or Assembly, which was regarded as a "party".

Therefore, the administration is not the nght body to sit in judg-
ment on disputes between itself and staff members.
The reasons counselling agairist a procedure regulanzing appeals
to the Council or governing body of the International Labor Office
were not made explicit. They are familiar, however :such appeals
would be vexatious and would in any event involve the possible
establishment of special bodies to advise on the law. There were STATEMEKT OF THE UKITED STATES OF AMERICA 173

fears and objections, then as in 1949. But the opposition did
not-as itsurelv would have done had it detected such an intention
in the Statute-object on the ground that the Assembly would
be abdicatine its Dowers and res~onsibilities. The obiect,ons ~ ~e
of a differen? ordér as will be sien frpm the summary appearing
in the Report of the Sub-Committee of the Fourth Committee
of the League of Nations Assembly which considered and approved
the draft of the Supervisory Commission :

"Against the proposal it was argued that the Tribunal does
not seem to be realiy needed. The present system provides two
successive courts of appeal-a pantative committee on which the
staff is represented on a basis of equality, and the Council of the
League, which has only had two cases before it since the League
was founded.
It was also pointed out that the Tribunal, as competent to
judge of the facts of each case, would necessarily find itself called
upon to estimate the expediency of the action taken by the Secre-
tary-General, whose duty it is to consult the general interests
bound up with the realization of the aims of the League. To restnct
the Secretary-General's powers in this direction would iuvolve a
serions encroachment on his indispensable freedom of action.
Attention was also drawn to the difficulties in the ascertain-
ment of the exact law applicable to each case and to the absence
of any real sanctions.
As a method more suitable to the general poiicy of the League,
attention was likewise drawn to the possibility of submitting
disputes of the kind contemplated to a court of arbitration con-
sisting of two arbitrators selected from a list drawn up by the
Council, one to bechosen by the administration concerned and the
other by the other party to the case. The Court would be presided
over by a chairman whom the two arbitrators would be left to
designate." Id.at 250.
Thus, when the Supervisory Commission remarked that "The
Tribunal will be the final authority for the interpretation of the
terms of an official's appointment and the regulations applicable

to the official", its remark must be read in context-final under
the procedure established and as between the parties. Id.. at 251.
The Statute itself gave internal evidence that the term "final"
was used with a particular meaning. and that "appeal" was
intended to mean "appeal" in the ordinary sense of a righ o
be heard by superior authority. Thus, it was provided that the
Tribunal could take jurisdiction only where there had been a
"final decision" by the administration. In addition, the persou
involved must have exhausted his remedies under the Staff Regu-
lations. Article VI1 read, in part :

"Acomplaint shall not be receivable unless the decision impugned
is a final decision and the person concerned has exhausted such
other means of resisting it as are open to him under the applicable
Staff Regulations."Id. at 256.174 STATEMENT OF THE UNITED STATES OF AAIERICA

In the context of the Statute, theii, "final" \vas iiot meant to
deprive any organ of an inherent power of review. Indeed, in the
case of the i\dministrative Tribunal, the prior existence of a final
decision \vas a condition precedent to review of that decision by
the parent body. Notbingin the legislative history shows a contrary
intention. In fact, the opening statement of the Chairman and
the remarks of the Uelegate of India, who presented the Sub-
Committee's report, both stressed the nature of the Tribunal's
role as one of arbitration ;the Indian Delegate emphasized that
the parties were the administration and tlic staff member. According
to the summary record, the Chairman said :

"The courts of arbitration sat but rarely and exercised, neverthe-
less, a preventive influence whicli was considerable. The Adminis-
trative Tribunal would probably be called upon to play this preven-
tive role, judging from theexcellent explanatory statement which
accompanied the draft." Id. at 36.

The Indian Delegate said :
"...that it was obvious that it was a compromise. One of the
principal elements in the decision of the Sub-Committee had been
what might he caiied the psychological aspect of the problem.
The League of Nations was an organization which endeavoured ta
encourage arbitration in the international field, and it had been
pointed out that its own employees had at present no tribunal
where appropriate relief could be claimed regarding matters in .
controversy belween &hemand the Secrelary-Geseral," (Under-
scoring supplied.) Id. at36.

Tlius, the new tribunal, being an institution of international law,
would necessarily be subject 1:othe established rule and practice
that an award of a tribunal which is zdtra vires is nul1 and void, and
would. in addition, be subject to the plenary power of the organ
creating it, the Assembly. The parties as to whom it provided no
nppeal and who should not bi: judges in their own case were the
Secretary-General (the Administration) and the staff member.
The powers of the Assembly rt:mained uiidiminished.
It is in thiscontext that the report of tlie Supervisory Commission
inust be read, which statcd simply that :

"No provision for the revision of judginents of the Tribunal is
inserted in the Statute. It is considered that, in the interests of
finality and ofthe avoidance ofvexatious proceedings,the Tribunal's
judgments should be final and withoiit appeal, as is provided in
ArticleVI, paragraph 1." Id. at zj4.

"No provision ...is inserted in the Statute." This did not Say or
niean that revision possible under the powers of the General
Assembly was foreclosed ahere considerations of justice and good
administration might outweigh considerations counselling for
respect of the Tribunal and against vexatious proceedings. STATEMENT OF THE UNITED STATES OF AMERICA 17j

In view of the nature of the Administrative Tribunal of the
League of Nations, its relationship to the League Assembly, and
the available evidence conceming the proper significance of the
phrase "final and without appeal", the decision of the Assembly
of the League in 1946 to review and not to give effect to certain
judgments of the Tribunal is seeu to have been well founded.
The Assembly's decision was unanimous, as required by the Cove-
nant. Seven delcgations recorded an expression of forma1 reser-
vations. The decision of the Assembly, however, was determinative,
not only of the disposition of the cases, but of the meaning of
"final and without appeal" and of the power and responsibility
of the Assembly. Since this decision was taken a scant three years

before establishment ofthe United Nations AdministrativeTribunal,
and at a time when the preparatory work on the Statute of that
Tribunal had already begun, it deserves most careful attention
as cvidence of the intent of the General Assembly in preserving in
the new Statute the precise formula contained in the Statute of
the League Tribunal.
At its Session of February 26, 1946, the League's Trihunal
rendered fourteen judgments in cases involving the competence
of the Tribunal and the interpretation of a Resolutiou of the
League Assembly adopted in 1939 amending the Staff Regulations
of the League and of the International Lahor Organization to
reduce from six months to one month the period of notice required
for discharge. L. ofN., O.J., Sp. Supp. No. 194, 245 ; Judgments
Nos. 24-37 of the Administrative Tribunal of the League of

Nations. In al1fourteen complaints, the Tribunal found it possessed
competence, and that the Secretary-General of the League and
Director of the Intemational Labor Office had wrongly construed
the Resolution of the Assembly. In thirteen complaints, itawarded
damages. In.one (No. 37) it ordered further proceedings on the
question of damages. In argument of the cases, the Administration
premised its contention that the Tribunal lacked conipetence upon
a construction of the disputed resolution of the Assembly which
the Tribunal in its opinion subsequently rejected. The Tribunal
chose to construe the resolution so as to protect rights it deemed
vested in the staff. Although the Secretary-Generai's arguments
were of no avail before the Tribunal, they were respected by the
Supervisory Commission of the League and finally prevailed
through the action of the League Assembly.
The action of the Assembly of the League in these cases followed

upon almost twenty years in which no judgment of the Tribunal
had heen disapproved by the Assembly of the League. Moreover,
the Tribunal's awards were denied effect in spite of the existence
of a much-quoted and respected opinion rendered in 1932 by a
Committee of Jurists appointed by thc Chairman of the First
Committee of the League Assembly. This Committee had advised
the Assembly that the Assembly "does not have the right to reduce176 STATEJIEKT OF THE UNITED STATES OF AXERICA
the salaries of the officials ....unless such a right has been expressly
recognized in the contracts of appointment", and that "If the
Assembly reduced the salaries of officials, the latter would have

the right to have recourse to the Administrative Tribunal." L. of
N., O.J., Special Supplement 194, 248 ; quoting L. of N., O.J.,
Special Supplement 107, 208.
The issues presented by the judgments of the League's Tribunal
were reviewed with care by a Sub-Committee of the Finance
(Second) Committee of the League Assembly, which adopted the
report of its Sub-Committee and decided that effect should not
he given to the judgments of the Administrative Tribunal. Id. at
130.133, 261-264. The vote in Committee was as follows :

"4 delegations were abseut (Afghanistan, Dominican Republic,
Ecuador, Panama) ;
16 delegations voted in favour of the adoption of the report
Canada, China, Cuba, Egypt, Finlaud, France,United KIndia, Ireland,
Mexico, New Zealand, Czechoslovakia, Turkey) ;
8 delegations voted against the adoption of the report (Belgium,
Denmark, Luxemboiirg, Netlierlands, Poland, Sweden, Switzerland,
Uruguay) ;
5 delegations abstained from voting (Australia, Greece, Norway,
Portugal, Yugoslavia)." Id. at 133.

The Report of the Sub-Committee, which was adopted, is carefully
reasoned. and because of its importance it is quoted at length
below :
"1. The Sub-Committee iioes not question the competence of
the Administrative Tribunal to consider the application and
interpretation of the decisions of the Assembly or other Staff
Regiilations in the circumstances of any particular case. Indeed,
the primary object of the Tribunal's establishment was no doubt
to ensure that such decisions and regulations were appiied properly
and impartially to au members of the staff according to the circum-
stances of each particular case. It is, however, one thing to Saythat
the Tribunal could apply the decisions of the Assembly to particular
cases; it is quite a diferent thing to say that it could question the
validity of those decisions themselvesand that it was subject to no
overriding powers by the ver)'body which had createdit. We do not
think that this was the case.
2. Little useful analogy can be drawn betweenan organization of
States szcchas the League of Nations and the municipal or private
corporations familiar in private Law.... No superior power exists
to release the League froni its contractual obligations, if such
obligations exist, however grave the emergency, unless it be the
League itself. But the League is not to he compared with a private
Company ;its status and powers are sui generis, although they fail
to be considered in the light of those general principles of public
law and administration whii:h to a greater or lesser degree are to
be found in the legislation of al1 States. Thus ail State contracts
are govemed by the exigencies of the public interest, to which STATEMENT OF THE UNITED STATES OF AMERICA 177
private and persona1 rights must give way, and although the
manner in which it may be exercised, whether by legislative or
execution action, varies greatly between difierent countries, al1
States retain the power in the last resort to alter the terms on whi~h
their o@cials are employed. Indeed, the supreme authority in the
State must retain discretionary powers of the kind, since without
them it could not ensure the supremacy of the public interest.
The safeguard against their arbitrary abuse is a political rather
than a legal one.
3. M'e find nothing startling in the view that, whilst the rela-
tions of the League with its Member States depend upon the treaty
obligations expressed in the Covenant, the League does possess,
in reeard to the officialswith whom it contracts. what are in effect
sovereign powers ...we think it necessary forthe proper dischar e
of the functions of a world or~anization .of States that it shou d
possess a power if necessary to set aside the vested rights ofprivate
individuals employed in its administration ...Relations connected
with public employment in the service of the League necessarily
presuppose the acceptance of these principles. They are their natzl-
ralia negotii. These considerations were indeed cogently expressed
in the report of a Committee of Jurists presented to the Council
in 1925 on the case of an officia1who claimed to have been wrong-
fully dismissed (Officia1 Journal, Sixth Year, No. IO, p. 1441 ;
see 11.1~3).
4. But, whilst we consider that the matter ought essentially
to be approached from the point of view of what is politic and
necessary as a matter of public administration, we do not think
that our conclusions lack a firm bais in the first principles of law.
In saying this, we have by no means ignored the opinion expressed
by certain eminent jurists in 1932 and referred to on page 3 of
document A.16.1946. Contrary to what happened in 1939, the
Assembly at that time was not seeking to set aside contractualrights
which its officials possessed. Its sufficient to say of the opinion
then given that it proceeded largely upon an examination of the
question whether the League could derogate from existing con-
tracts in the exercise of a budgetary authority rather than in that
of a legislative power. In our view, the opinion was not intended
to express a final conclusion upon the question whether the League
tual rights. If it was, we are unable to agree with it.ate contrac-

5. The Statute of the Administrative Tribunal expressly reserves
the Assembly's power to abolish the Tribunal. but in the absence
of this express provision, those who contend that the League has
no power to alter contracts by iinilateral action would, we think,
be led to argue that the League, having once established the Tn-
bunal, could not abolish it with effect on existing contracts. \Ire
apparently without question, the right of appeal to the Council of
theeLeague which employees previously possessed, so in 1939 the
Assembly could have abolished the Tribunal. Had this course been
taken, the dismissed officials woiild have had no court or tribunal
before which they could have questioned the lcgality of their dis-

13missal. Nor does the fact that the Tribunal remains significantly
alter the position. Xo outside body exists which can enforte the
decision of the Tribunal against the Assembly, and this is a not
irrelevant consideration in deciding whether the Assembly is sover-
eigii in this matter and whether the dismissed officials have any
right against it. By statzrtc%yprovision and diplomatic usage, no
remedy is auailableagainst the League ; where, then, is the oficials'
right againstit ? Ubi jus ibi remedium, and the absenceof any remedy
in the circzrmstancesof this casekereleads to theconclusionthnt there
is no legal right. If only an ethical right is claimed, the protection
against its abuse is not a legal but a poiitical one lying in the hands
of the States Members of the League. Sovereignty is a question of
fact from which a conclusion of law is drawn : it arises from the
preseiice or absence of overriding and controlling powers. In the
absence of such powers, the legal conclusioii is that sovereignty
exists ;and, although the use of the term sovereignty in connection
with the present matter is not entirely apt, we think it would be an
act of juristic purism to doubt that the supreinacy of the League is
ail inherent incident impiicit in its contractual relationships with
its staff. We therefore conclude that it was not open to the Adminis-
trative Tribunal to question the validity of the Assembly's Reçolu-
tion of December 14th. 1939. Its only duty was to give effect to it.
6. \\'e are entirely unable to accept the Tribunal's interpretation
that the Assemblv's Resolution was intended to a~~lv to a limited
class of officialsonly. This view seems to be manif&tiy contrary to
the facts. Although there is no ordinary appeal from the Tribzrnal's
decision, wethink that it is within the power of theAssembly, which
can best interpret ils own decisions, by a legislative resolzrtion,to
declarethat the awards made hy the Tribunal are invalid and are of
no effectbothbecausethey soughtto set aside tlieAssembly's legislative
act and because of thezr mzstaken conclzrsionas to the intention of
that act.
7. We think it right to add that, if effect was given to the awards
of the Tribunal, the other officials who accepted their dismissal in
loyalty to the League and, no doiibt, in the belief that al1officials
would be treated alike, are entitled to consideration. It is true that
the time within which they could prosecute a legal claim (assuming
such a claim exists) has long since passed. Moreover, the assessment
of compensation in individual cases might bc difficult, for in a
iiumber of them the earlier terminatioii of tlieir employmcnt suited
the convenience of the officialsconcerned. But, from an ethical point
of view, it is difficult to think that their right to consideration is
diminished by the fact that they showed themselves wnlling to
acquiesce, if not to CO-operate,in the decision wliich the Assembly
took.
8. In Our view, however, ail the claims should be rejected, and
tlie Assembly may be fortified in taking this course not only by the
fact that-to their credit-the great body of its officials concurred
in the propriety of what was done at the time, but also in the know-
ledge that, in the grave emergency with which the world was faced
in 1939, vast multitudes of people voluntarily made or willingly
submitted to drastic infringements of their rights and interests. The STATEMENT OF THE UNITED STATES OF AXERICA 179

received from the vast majority of its officials, the same devotion
and self-sacrificeinhe,interests of the world community.

9. We should add that we have not allowed ourselves to be
influenced in the conclusion at which we have arrived by the serious
effect on the League's budgetary position which the application of
the Tribunal's decision and its extension to other officials would
inevitahly involve....
10.In view, however, of the fact that we do not douht that the
claimsweremade in goodfaith and involved a difficultand important
matter, we think it would be proper to make an ex gratia payment
in respect of the claimants' legal costs." (Underscoring supplied.)
Id. at 262-263.

It is not possible to limit 'the significance of the Assembly's
action to an argument that it decided that where the Adminis-
trative Tribunal based its judgment on a finding that the Assembly
had attempted in 1939 to exceed its powers, that judgment could
not bind the Assembly. Such a narrow theory of the case is con-
tradicted by the Report itself. The Report envisaged-indced,
the very judgments reviewed compelled it to meet-the argument
that the Tribunal did not necessarily find the Assembly's 1939
action ultrl aiire but merely construed the Assembly's Resolution
to conform with the Tribunal's theories of proper administration,
imputing these theories to the Assembly itself. On the question
of who interprets with greater authority the words of the Assembly,
the Report was emphatic and unambiguous : "we think it is

within the power of the Assembly, which can best interpret its
own decisions, by a legislative resolution, to declare that the
awards made by the Tribunal are invalid and are of no effect ....".
It will be noted, of course, that in affirming this legislative
power of the Assembly, the Report made it perfectly clear that,
in distinguishing the 1932 Opinion of ,the Jurists on the ground
that "it proceeded largely upon an examination of the question
whether the League could derogate from existing contracts in
the exercise of a budgetary authority rather than in that of a
legislative power", there was no thought that the Assembly lacked
power, after considering ari award on its merits, to declare the
award of no effect.
Indeed, it would be a mistake to search for the ultimate legal

basis of the power to make the Report, and for the power to
refuse to give effect tothe amards of the Tribunal, in the words
of the Report itself. The Report was the opinion of the Assembly
of the League. It was a political, not a judicial, opinion. Itwas
premised on the legal right and power of the Assembly to consider
and refuse to give effect to awards of the Tribunal. The reasons
upon which it relied in deciding whether and how to exercise its
right and power were $olitic raeason relating to the legal respons-
ibilities vested in the Asseinbly by the Covenant. The Assembly180 STATEMENT OF THE UNITED STATES OF AMERICA

had been responsible for adjustments in the administration of
the League to meet the exigeiicies of a second world war. Kt
remained responsible for the wise-carrying through of the adjust-
ments. It regarded the decision and awards of the Administrative
Tribunal as seriously at odds with what it believed the proper
conduct of civil servants and the best policy for the international
organization in the face of the problems growing out of the \var,
and as capable of creating grave iniquities as \vell as involving
a view of the intention of earlier Assembly action in which the
Assembly itself could not concur.
Thus, the legal significance of the Assembly's action, when
objectively viewed, has the folli~wingchief aspects :
I. It settled once and for al1 the meaning of "final and without

appeal". In using the League Tribunal as a model, the United
Nations General Assembly uneiluivocally assumed its own legal
right and power to refuse effect to awards of the United Xations
Administrative Tribunal.
2. It settled finally the question of "acquired rights". Not
only was the power of the Assembly to amend the terms of employ-
ment an implied tcrm of al1contracts ; it was also true that there
was no implied "acquired ri-ht" to the benefits of an adminis-
trative tribunal awacd.
". It conformed to the leeal -eauirement that the Assemblv
exercise its power to refuse effect Coawards of the Tribunal for
reasons it must itself find politically sound in the light of its
responsibilities under its constituent instrument.

The fact is that representativi:~ of both prevailing and minority
vieu, in the Assembly were in agreement as to the basic significance
of the action of the League t\ssembly. Nr. Kaeckenbeeck (Bel-
gium) said :
"In his opiniontliey (hiscolleagueson the zd Committee)should
ask themselveswhether the Assembly, taking the view that certain
of the Tribunal's interpretationswere inaccurate, had the right to
opposethe executionofa judgrnent ofthe Administrative Tribunal."
Id. at131.

As Sir Hartley Shawcross (United Kingdom) had said :
"....The conclusion\vas that the Assembly wasentitled, by way
of legislative act, to takeuc11decisions in relations to its staff as
itthoiight right." Id. at 130.

The representative of France, M.Watteau, was even more succinct :
"Legally, the Tribunal's judgment should not be recognized as
valid." Id. at132.

When the report of the Second Committee \vas unanimously
adopted by the Seventh Plcnary Meeting of the League Assembly
on April 18, 1946, the Ilelegate of Belgium, while expressing
forma1 reservations on behalf of his own country and of Den- STATEMENT OF THE UNITED STATES OF AAIERICA 181

mark, Iran, Luxembourg, the Xetherlands, Sweden, and Switzer-
land, did not assert that the Assembly lacked legal power to
adopt the Sub-Committee's Report and to decide not to give
effect to the Tribunal's judgments. He stated his regret for the
Assembly's decision, and he noted that it established a precedent.
Id. at 61.

(C) Decisions of the United Nations GeneralAssembly

By his Report of 21 September 1949, the Secretary-General
submitted to the Fourth Session of the General Assembly a draft
statute for a United Nations Administrative Tribunal, which,
with some revisions, was adopted by Resolution 351 (IV) of
24 November 1949, to come into force I January 1950. UN, Off.
Rec., Gen. Ass., 4th Sess., 5th Comm., SR, I Annex 146, 148.

Amendment of the text to avoid or limit the construction placed
upon its model, the League Statute, regarding the relationship
between the Tribunal and the Assembly and the responsibility
of the latter for review of the actions of the former was never
a real issue. The real debate, the important decisions of the Assem-
bly, related primarily to preserving the discretion of the Secretary-
General in areas where his decisions should be respected by the
Tribunal and where his judgment, not the Tribunal's, should
be controlling. It is, of course, true that the debat. on this issue
relate indirectly to the power and responsibility of the General
Assembly, since they give strong evidence of such need for effective
checks upon the Tribunal that they could hardly be reconciled

with abdication of General Assembly responsibility for the Tri-
bunal's work.
The Secretary-General suggested no modifications in the Advi-
sory Conimittee's redraft of the League Statute which could
insulate the Tribunal's decisions from the critical scrutiny and
power of review of the General Assembly. Indeed, his addition
of Article 12 was a reminder of the latter's ultimate power and
responsibility. As the Report states :

"In drafting the attached statute, the Secretary-Generalhas relied:
heavily upon the views expressed and the draft statute suhmitted
in 1946 hy the Advisory Committee appointed by the Secretary-
........................ of resolution13 (1....

ArticleIZ has been added to make it clear that the statute may
he amended by the General Assembly or such other organ of the
United Nations as the GeneralAssemblymay designate."Id. at 146.

As the Secretary-General was at pains to point out, his principal
changes were to exclude from the Tribunal's competence causes
of complaint arising prior to its establishment, to ensure that
the Secretary-General, not the Tribunal, should be the one to
decide upon the advisability of rescission or specific performance182 STATEXEST OF THE UKITED STATES OF AMERIC.4

rather than payment of damages, and to make explicit the General
Assembly's power of amendment. Id. at 146.
During the General Assembly's consideration of the draft Statute,
there was no proposal made which \vould have rendered decisions
of tlie Tribunal beyond the reach of General Assembly review.
Indeed, the only change from the League Statute considered
which would bave had the effect of increasing practically the
independence of the Tribunal {rom the Assembly, even though
it did not go so far as to prevent review, was reiected. This was
the proposal of the Drafting Conimittee in 1~~6, supported by
the Ketherlands, France aiid otliers, that the International Court
of Justice participate in the selection of members of the Tribunal.

In explanation of this support of this provision, the representative
of the Netherlands
"...urged the Conimittee to keep the original text of paragaphz.
TheAdministrntiue Tribulia1would be a jzr<licidorpanalid shouldbe
independent of60th the Secretnriat atid the AssemblyIt would be
reprettableif the merizberszuereelectedby the GeneralAssembly, for
sucha procedurewozhldplace them iti a dependextposition lhat would
greatlydetract/rom their prestige.''(Underscoringsupplied.) UN, Off.
Rec., Gen.Ass., 4th Sess.,jth Comm.,SR, 185.186.

The Advisory Committee on Administrative and Budgetary
Questions proposed instead that the General Assembly appoint
the members. As hfr. Aghnides pointed out :
".... If the Advisory Committee's amendment was adopted, the
method forappointing the members of the 'Tribunal would,as the
representative of Poland had suggested,be that whichgovemed the
appointment of members of tlie Advisory Committee and of the
Committeeon Contributions." Id. at.187.

The Advisory Committee's ameiidment carried by a vote of 33 to
4, with 2 abstentions. Ibid. The term of a member was set at three
years, tbus assuring frequent check by the General Assembly.
An effortby the Ijnited States to give express sanction to removal
by the Assembly at any time gave rise to strong objections and,
by decision of the Plenary, removal was perrnitted only if the other
members of theTribunal coiicnrr(:d in the propriety of such removal.
UN, Off. Rec., Gen. Ass., 4th Sess., PV 360.362.
It has been brought out previously that "final", as that word was

used in the League Tribunal's Statute, meant no more than that
the Secretary-General or the Tribunal had fully considered and
decided a matter so that it was ripe for whatever next step might
be appropriate, including, in the case of the former, proceedings
before the Tribunal, and, in thc case of the latter, action (which
might be unfavorable) by the Assembly. The same phrase about
finality of Tribunal decisionswas preserved in the United Nations
Tribunal Statute. However, the word "final" as to the Secretary-
Gencral was dropped out when, in the course of revising Article 7, STr\TEZlEST OF THE USITED STXTES OF AZIERICA 183

the Fifth Committee spelled out with greater precision the remedies
that must have been exhausted or mutiially waived prior to action
by the Tribunal.\UN, Off. Rec., Gen. Ass., 4th Sess., 5th Comm.,
SR 14, 16, zo, 180; UN, Off. Rec., Gcn. Ass., 4th Sess., 5th Comm.,
1 Annex 162 :see especially remarks of the Belgian and Netherlands
representatives, and of Mr. Feller ;also paras. IO and IZ of Staff
Committee Proposals, Annex, ofi. cil.szifira, 154-155.
Not only did the word "final" in Article IO (z)retain its original
limited meaning ,its limitation was further speiled out in Articl9.

Article 9, quotcd above, provided explicitly that the Secretary-
General need not give effect to a jiidgment of rescission or specific
performance where in his opinion it is inadvisable so to do. Under
the League Statute, this was a decision for the Tribunal to make.
Present Article 9 makes it the Sccretary-General's decision. At the
end, it simply provides a furtherstep in which the Tribunal, whose
"final judgmcnt" remains unexecutcd, then fixes proper compen-
sation.
The last sentence of Articleg nccds further analysis. It provides :
"In any case involving compensation, the amount shall be fixed
by the Tribunal and paid by the United Nations or, as appropriate,
by the specialized agency participating under Article 12." ArticleIX

of the League Statute provided merely that "...The Tribunal
shall award thc complainant compensation for the injury caused
to him." Article X, however, added that "Any compensation
awarded by the Tribunal shall be chargeable to the budget of the
administration concemed." Thus, it appears that the purpose of
the final scntcnce of Article g is to assure that the United Nations
will iiot be expected to pay awards to employees of the specialized
agencies. Since the actual appropriation must in any event be
subject to agreement as to which is the "appropriate" adminis-
tration or agency, and in the case of a jointly operated undertaking
the matter might be in some doubt, it is apparent that this question,
like many others, must be left to the normal processes of consider-

ation and decision in the competent plenary organs involved.
ArticleIZ of the Statute of the Tribunal,quoted above, authorizes
the Secretary-General to enter into agreements with specialized
agencies under which they would use the Tribunal, contribute to
its expenses, be "bound" by its decisions, and be responsible for
payment of its awards. The agreements must conform to Articles 57
and 63 of the Charter, and they remain subject to the future
approval of the General Assembly and the agency concerned. No
such agreement has becn made. Analysis of the article leads to
two observations : (a) the language used to assure that the agencies
will be bound by the decisions and bound to give effect to the

awards is in contrast to that found in Articles IO (z) and 9. If
binding effect had been intended in Articles IO (2)and 9. a mere
statement in Article 12 that the arrangement should not derogate
from Articles IO (z) and 9 would have been both better drafting184 STATEMEST OF THE USITED STATES OF ALIERICA
and sufficient. Instead, we have a new and a very specific formula.
(b) Article 12 is in legal effect merely authority to make an offer.
It could not compel acceptance of the offer without full consider-
ation by the principal organs of the specialized agencies. It is,

to Saythe least,a highly debatable matter whether their constituent
instruments, particularly tliose provisions vesting hudgetary and
administrative responsibilities in their respective organs, could
be found to permit acceptance oi the offer. Certaiuly none has been
so constriied and applied.
Nothing was introduced into the Statute to reverse the effect of
the old Statute in making the Administration and the applicant
the parties to a case. Indeed, iii its own Rules of Procedure, the
United Nations Administrative Tribunal has expressly named the
"parties" to a case. They are "the applicant" and "the Adminis-
tration concerned". Articles 7, 8,9, 16 and 17 of the Rules. There
is no reason whatsoever to suppose that "the Administration" is
equivalent to "the United Nations", including its principal organs
other than the Secretariat. Indeed, the very existence of the Tribu-
nal, set up as a subsidiary organ of the General Assembly to help
settle the personnel disputes of "the Administration", is eloquent
testimony to the contrary.

Several delegations, of course, echoed the concern expressed in
1947 by the United Kingdom that the powers and responsibilities
of the General Assembly must not be impaired. UN, Off.Rec.,
Gen. Ass., 4th Sess., 5th Comm., SR 21 (UK). 20 (USSK), 190
(USSR), 15-16 (US). Nothing happened to upset the 1946 League
precedent. The idea of formalizinga procedure for appealing com-
petence questions was opposed by Belgium, which revived its
1946 line of argument. The idea was successfdy discouraged by
the Secretary-General's representative, by Mr. Aghnides, and by
Afr. Andren (Sweden) on the policy ground that it would lead to
vexatious appeals, and had not been needed. Id. at 183. What was
needed was there : the power of the General Assembly to act to
correct error by its subsidiary organ where the facts might warrant
exercise of that power.
That the "independence" sought and achieved in the Fifth
Committee was independence from the Secretary-Geiicral rather
than from the General Assembly was further evidenced by the

statements of various representatives. Thus, Mr. Andren (Sweden),
in opposing provision for advisory opinions, "wished the principle
of division of powers to be applied so that the administration
would remain entirely independent of the Administrative Tribunal".
Id. at 183 In his discussion of Article 9, Mr. Lebeau properly
limited his construction of the finality of the Tribunal's decision
to concurrence with llr. Feller that the Secretary-Genera2had no
power to reverse or modify. Id. :it193.Messrs. Aghnides, Hambro,
Lebeau, and Andren agreed in connection with Article 3. paragraph
4, that "The Tribunal was to. be completely independent of the STATEMENT OF THE UNITED STATES OF AMERICA 185

Secretavy-General." Id. at 187. Both the representatives of Norway
and of Australia made it quite clear that the decisions of the
Secretary-General and of the Tribunal, while taken indefiendently
of each other, were to continue to be subject to corrective action
by the General Assembly. Mr. Hambro

"....urged that the significance of possible hudgetary repercussions
should not be exaggerated, and in that connection referred to the
experience of the International Labour Organization and the League
of Nations, which indicated that cases involving substantial com-
pensation in lieu of reinstatement werelikely to be exceedingly rare.
There had, however, been several cases concerning the right of the
General Assembly to abolish posts without paying compensation.
The United Nations was making its first attempt to introduce the
system of an Administrative Tribunal andif experienceshowed that
the budget required more careful safeguards in connection with
compensation, action could be taken by the General Assembly. He
pointed out, howeuer,that Article 9 shouldnot bedrafted in the exfiecta-
tion ofa delugeof dismissals, but with the objectof ensuring effective
administration." (Underscoring supplied.) Id. at 195.

As has been pointed out earlier, the power of the General Assem-
bly effectively to cope with a decision seriouslyimpairing the power
of termination in a substantial category of cases could fairly and
properly be exercised only if the action of the Assembly were taken
to affect al1 cases of this category. Mr. Shann said that

"....The Administrative Tribunal itsclf provided a safeguard;
moreover, if any unjust action were to be taken, criticism would
doubtless be heard and the Fifth Committee would have the matter
brought to its attention by virtue of the fact that it would be
requested to provide the necessary amounts for any monetary com-
' pensation decided upon. Furthermore, he was sure the Committee
could place its confidence in the sound judgment of the Secretary-
Gerieral." Id. at 194.

No one could seriously,have believed that merely talking about
unjust action in the Fifth Committee would meet the prohlem
unless the powers of the Fifth Committee, especiaily regarding
the budget, were preserved.

V. Conclusions

(1) Question (I)
For the reasons above discussed, it is submitted that Question (1)
should be answered in the affirmative.

(2) Question (2)
Question (2) reads :

"If the answer given by the Court to question (1)is in the affirma-
tive,what are the principal grounds upon which the General Assern-
bly could lawfully exercise such a right ?" Itwill be recalled that in its advisory opinion concerning Condi-
tions of Admission oj a Sfate to Membershi? in the United Nations,

the Court said :
"To ascertain whether an organ has freedom of choice forits
decisions, referencemust be made to the terms of its constitution."
[1948j 1.C.J. 57, 64.

In that case, the Court .faund such terms expressly stated in the
immediately relevant Charter Article 4. Id. at 6. In Part III of
the present statement the articles immediately relevant to the
present case-Articles 17, 18, 101, 7 and 22-have been examined,
and they contain, it is submitted, as comparable express criteria
only the provisions of Article ror (3) that
"The paramount consideration in the employment of the staff and
in the determination of the conditions of serviceshall be the neces-
sity of securingthe highest standards of efficiency,cornpetence,and
integrity. Due regard shallhe paid to the importance of recruiting
the staff on as wide a geographical basis as possible."

In the Admissions case, the criteria of Article 4 were exclusive.
In the present case, the criteria of Article 101 (3) are "paramount"
but not exclusive. The area for the operation of factors of sound
political discretion is necessarily wide and is the domain, not
of a court of law, but of the competent political organs. The Court
could, if asked, render advice on the legal "meaning" of the factors
stipulated. It could scarcely advise on which ones or which com-
binations of express and non-express factors should be applied
in a particular case to achieve a particular result.
Such considerations appear so fundamental, and already have
been so clearly elaborated by the Court itself, as to preclude the

need for more extensive treatment. It would not seem helpful
to attempt a generalized treatment of such Charter provisions
as Articles 103, 95, 55. 56. 46, or 2 (7). for although they might
conceivably, in some fashion, limit the area of General Assembly
discretion in some particular case, they do not themselves expressly
or inferentially establish grounds for decision of the type of prob-
lem here considered.
The following are illustrative of some of the types of situations
which migbt give rise to careful review by the General Assembly
and, in its discretion, to refusal to give effect to awards of the
Administrative Tribunal :

Mistaken reliance bv the Tribunal uDon false reoresentations
of a party in a case ;
Interpretation and application of Regulations established by
the General Assemblv with effect contrarv to the exuress or
reiterated intent and'object of the ~eneral" Assembly, &ch as:
aurards made'in flagrant disregard of the Statute or Rules, to
the prejudice of either party ;ultra ziiresawards ; decisions premised\ STATEMENT OF THE UKITED STATES OF AXIERICA
187
on serious misconstruction of the Charter, particularly in regard
to the powers and responsibilities of the principal organs, such
as : decision invading Charter powers or discretion of the Secretary-

General, or decision violative of Article 101 (3) of the Charter ;
Decision contrary to an advisory opinion of the International
Court of Justice ;
Awards arbitrary or unreasonable on their face ;
Important and inconsistent decisions giving rise to serious
uncertainties in the administration of the Secretariat ;
Aivards entailing impossible financial conseqnences for the
Organization. Needless to Say, duress exercised upon the Tribunal,

corruption of the Tribunal, or action evidencing prejudice and
improper motives of any of its members would cal1 for similar
action by the General Assembly.
The weight to be accorded to any one or combination of these
factors would have to be determined by the General Assembly
in discharging its responsibilities asa principal organ of the United
Nations under the Charter. This is an essentially political respon-
sibility of the Assembly.
It is submitted that the answer to Ouestion fzl is that. as a

matter of law, the General Assembly mus? rely up~n'policy grounds
in refusing to give effect to awards of the Tribunal, acting with
due regard for relevant Charter provisions, such as the express
stipulation of a "paramount consideration" in Article 101. 10. WRITTEN STATEXENT BY THE SECRETARY-

GENERAL OF THE UNITED NATIONS

TABLE OF CONTENTS
1arngraphs Page
INTRODUCTIO ............. 1-5 170

Part One: Rthe Eighth Session of the Generaly
Assembly ..........

1. HISTORICA LURVEY .........
A. Judgments of the Administrative Tribunal

B. Relevant instmments. .......
C. priation? funds for payrnent of awards, and
concurrence of the Advisory Committee on
Administrative and Budgetary Questions .
D. Consideration by the'Fifth Committee and
by the General Assembly ......

II. SUMMAR YF VIEWS RELEVANT TO
QUESTIONS SUBMITTED TO THE COURT ...
A. Question (1)...........

I.Assembly to refuse to give effect torai
awards of compensation ......
(a) lleaning of term "final and without
appeal" ........
(b) Relationship of the GeneralAssembly
to the Administrative Tribunal-
Nature of the Tribunal ....
(c) Budgetary powers of the General
Assembly .........
(d) Precedent of the 1-eagueof Nations

2.eral Assembly ta refuse ta give effect ta
awards of compensation ......
(a) Judgments "final and without ap-
peal" ...........
(b) Nature of the Tribunal ....

(c) Budgetary powers-Contractuai obli-
gations. ..........
(d) Leagueof Nations "precedent". .. STATEMENT BY THE U.K. SECRETARY-GENERA (L2 III54) 189
Paragraphs Page

B. Question (2) .......... 82-112. 191
1.Grounds for refusing to give effect to
awards, suggested by representatives
opposing payment ....... 83-94 191
2. Possible grounds for refusing to give effect
to awardç, suggested by representatives
favouring payment .... 95-101 194
3. "Grounds" considered as not justifying
refusal to give effect to awards by repre-
sentatives favouring payment ... 102.105 196
4. Additionai comments of representatives
concemiug competence . : .. 106-112 196

Part Two : Historical survey of the Administrative
Tribunal of the League of Nations. . 198
1. ESTABLISHMEN OF THE LEAGUE OF NATIONS
ADM~NISTR.~TIT VEIBUNAL ..... 113-124 196
II. THE STATUTE OF THE LEAGUE OF NATIONS
ADMINISTRATIV TERIBUNAL .... 125-128 201

III. REFUSAL BY THE ASSEMBLS OF THE LEAGUE
MADE BY THETO LEAGUEARDOFONATIONSNADMINIS-
TRATIVE TRIBUNAL. ........ 129-142 201

Part Thvee :Legislative history of the establish-
ment of the United Nations Adminis-
trative Tribunal. ....... 206
1. HISTORICAL SURVEY. ......... 143.160 206
A. Preparatory Commission of the United
Nations. ............. 143-145 206
B. Fust Part of the First Session of the Generai
Assembly ............
146 207
C. Advisory Cornmittee on a Statute for a
United Nations Administrative Tribunal. . 147 207
D. Second Part of the First Session of the
General Assembly ......... 148 207
E. First Part of the Third Session of the
Generai Assembly ......... 149 208
F. Fourth Sessionof the General Assembly . . 150-157 208
G. Amendment ofArtide gof the Statute at the
Eighth Sessionof the General Assembly. . 158-160 210

II. SUMMARY OF VIEWS WHICN MAY THROW LIGHT
ON QUESTIONS SUBMITTED TO THE COURT .. 16r-214 211
A. Article IO,paragraph 2-"Finaland without
appeai". ........ 162-167 211
B. Article2. paragraph 3-Tribunal decides
competence . . . . 168-173 213IgU STATEMENT BY THE U.N. SECRETARY-GENER.4L (12 III j4)

Paragraphs Page
C. Nature of Tribunal . ...... 174-191 214
1. References to the nature of theTribunal.
(a) Court and judicial body . . . .
(b) Administrative oigan . . . . .
(c) Impartial body. . . . . . . .

(d) Independence . . . . . . . .
(e) Other references to nature ofTribunal
2. Decisions concerning titles . . . . .
D. Separation of powers . . . . . . . .
E. Administrative and budgetary powers of
the General Assembly . . . . . , .
F. 1946Decision of the Assembly of the Leagiie
of Nations. . . . . . . . . . . .
G. Cornpetence of the Tribunal . . . . .

1. On 9 December 1953 the General Assembly of the United
Xations, by a vote of 41 to 6 ~vith 13 abstentions, adopted Reso-
lution 765 A (VIII) requesting an advisory opinion from the
International Court of Justice on certain legal questions concerning
awards of compensation madc: by the United Nations Administra-
tive Tribunal. Thus, for the seventh time, the General Assembly
determined to seek the assistance of the Court on legal aspects

of an important question with which it had been seized.
2. The text of this Resolution, adopted at the 471st meeting
of the General Assembly, is as follows :
"The GeneralAssembly, '

$17g,420, made by the Seci-etary-General in his report for the pur-
pose of covering the awards made by the United Nations Adminis-
trative Tribunal in eleven casesnumbered 26, and 37 to 46 inclusive,
Coi~sideringthe concurrence in that appropriation by the Advisory
Coinmittee on Administrative and Budgetary Questions contained
in its twenty-fourth report to the eighth session of the General
Assembly,
Considering, nevertheless, that important legal questions have
been raised in the course of debate in the Fifth Committee with
respect to that appropriation,
Decides

of Justice for an advisory opinion:tions to the International Court STATEMEXT BY THE U.S. SECRETARY-GEXER 12LIIIj4) 191
(1)Having regard to the Statute of the United Nations Adminis-
trative Tribunaland to any other relevant instruments and to the
relevant records,has the GeneralAssemblythe right on any grounds
to refuse to give effectto an award of compensation made by that
Tribunal in favour of a staff member of the United Nations whose
contract of service has been terminated without bis asse?t
(2)If the answer given by the Court to question (1) is in the
affirmative, what are the Principal grounds uponhich the General
Assemblycould lawfully exercisesuch a right?"

3. The Secretary-General is submitting the present statement,
in his capacity as Cliief Administrative Officer of the United
Nations, in the hope that it may be useful in throwing light on

the above questions, and in facilitating their consideration by the
Court. The statement contains an historical survey and factual
summary of matters covered in the documentation submitted
to the Court under Article 65 of its Statiite, aiid as such it is
intended to scrve as a guide to these documents. It also contains
an historical survey and factual summary of materials relating
to the Administrative Tribunal of the Leagiie of Nations.
4. The statement is not intended to be in any way an expression
of the views of the Secretary-General. Certain vie\vs of the Secre-

tary-General relating to the subject were presented to the General
Assembly and \\.il1 be foiind in the documents before the Court.
The Secretary-General. with the permission of the Court, may
present an oral statement at a subsequent stage in the proceedings.
5. The present statement is divided into three main parts:
Part One concerns the request for an advisory opinion made by
the eighth session of the General Assembly :Part Two contains
an historical survey of the Administrative Tribunal of the League

of Nations ;and l'art Three deals with the cstablishmetit of the
United Nations Administrative Tribunal. Relevant documents
of the League of Natioiis are contained in Annexes I to 12..

Part One : Reqziestfor theAdvisory Opinion by the Eighth Sessioïz.
of the GeneralAssembly

1. HISTORICAL SURVEY
A. Jz6dgnteitlsof theAdministrative Tribunal

6. The Court has not been asked to review the judgments of
the Administrative Tribunal, and in fact, as will be noted sub-
sequently, the Fifth Committee of the General Assembly inten-
tionally refrained from asking the Court, after it had formulated
general principles, to apply these principles to the cases under
consideration by the General Assembly. Consequently, this state-
ment will contain only a brief account of the essential facts

antecedent to the consideration of the subject by the General
.4ssembly at its eighth session. It wiU not attempt to summarize192 STATEXEKT BY THE U.N. SECRETARY-GENERAI. (12 II54)

the arguments presented by Counsel before the Administrative
Tribunal or the opinions of the Tribunal. Al1 judgments of the
Tribunal, as weil as the records of the written and oral proceedings
in those cases of immediate interest,have been sent to the Registry
for the background information of the Members of the Court.
(See Background Documents-Group 1-Judgments and Records
of the Administrative Tribunal of the United Nations.)

7. On 21 August 1953 the Admi~iistrative Tribunal rendered
judgments (Nos. 18-38) in the cases of twenty-one former United
Nations staff members who had been discharged by the Secretav-
General, and who had contested their discharge as illegal. Ten
of these cases related to the termination of temporary appoint-
ments, ten to the termination of permanent appointments, and
one to the summary dismissal for serious misconduct of a staff
member who held a permanent appointment.

8. The Tribunal sustained the termination action ofthe Secretary-
General in nine cases involving temporary appointments. (Judg-
ments Nos. 19-27.) It decided in favour of the terminated staff
members in one case concerni~iga ternporary appointment (Judg-
ment No. 18) and in ten cases concerning permanent appointments
(Jiidgments Nos. 29-38). In four of the cases decided in favour
of the applicant the Tribunal ordered reinstatement (Judgments
Nos. 18,30, 32, 38), and in the remaining seven cases ordered the
payment of compensation in lieu of reinstatement (Judgments

Nos. 29, 31, 33. 34. 35, 36, 37). It decided, with respect to the sum-
mary dismissal, that the proceedings of the Joint Appeals Board
in the case had not been valid and that it should be re-submitted
to the Joint Appeals Board (Judgment No. 28).
g. Ili the exercise of his powers under Article 9 of the Statute
of the Administrative Tribunal, the Secretary-General decided not

to reinstate the applicants in the four cases where reinstatement
had been ordered. Consequently, on 13 October 1953 the Tribunal
handed down four judgments (Nos. 39-42)determining the amounts
of compensation to be paid in these cases in lieu of reinstatement.
IO. In al1cases where the applicants were successful, the Tribunal
awarded full salary up to the date of judgment less the amount

paid at tennination in lieu of notice and less also the amount of
termination indemnity ;it also awarded $300 for legal costs in
each of these cases. In addition it awarded the following amounts
of compensation. STATEMENT BY THE U.K.SECRETARY-GENERAL (12 III54) 193

Judgment No. 29 $ 6.000
Judgment No. 31 40,000
Judgment No. 33 20,000
Jndgment No. 34 27,500
Judgment No. 35 12,000

Jndgment No. 36 7,000
Judgment No. 37 xo,ooo plus pension rights
Judgment No. 39 16,000
Judgment No. 40 20,000
Judgment No. 41 7.500
Judgment No. 42 4,730

Total : $170,730 plus pension rights
in one case

II. It may also be of interest to note, with respect to one'of
these judgments (No. 37-Miss Jane Reed), that a request was
made by Counsel for the Secretary-General on 5 October 1953
for a revision of the award based on the correction of an error of
fact. This error related to the age of Miss Reed, a factor which
had been taken into account in dctcrmining the amount of compen-

sation. The question of error was not in dispute but was in fact
recogriized by both parties. The Tribunal on II December'I953
handed down Judgment No. 51 correcting the award. The Statute
of the Administrative Tribunal contains no reference to the recon-
sideration of a case or the revision of a judgment by the Tribunal.
In the present instance the correction of material error rested on
a finding by the Tribunal that it was entitled to rectify figures
computed on the basis of a date submitted by both parties and
recognized by both after the judgment as erroneous. There have

been no other judgments which relate to the reconsideration of a
case or the revision of a judgment by the Administrative Tribunal.

B. Relevant instruments

12. While materials on the foregoing judgments have not been
included in the Dossier transmitted to the Court under Article 65
of its Statnte, there have been included in this Dossier the Statute
of the Administrative Tribunal and other relevant instruments
(Documents 18-31) l. In addition to the Statute and Rules of
the Tribunal, the Staff Regulations and the Staff Rules, as well

as examples of appointmeut forms, are contained in the Dossier.
13. The Court will note that the letters of appointment make
reference to the Staff Reguiations and to the Staff Rules. For
example, the Permanent Appointment form (Document 27)

1 Referencin thiand sirnilar citations followis to the numbers starnped
on the documentsin the Dossiers subinitto the Court iindei Articof its
Statute.
14194 STATE.\IEST BY THE U.S. SECRETARY-GEXERAL (12 III54)

contains the follo\ving : "i'ou are herehy offered a permanent
appointment in the Secretariat of the United Xations, in accordance
with the terms and conditions as specified, as amended by or as
othenvise provided in the Staff Regulations and Staff Rules,
together with such amendments as may from time to time be made

to such Staff Regulations and such Staff Rules. A copy of the Staff
Regulations and Staff Rules is transmitted herewith." The same
letter of appointmcnt also provides that a permanent appointment
may be terminated by the Secretary-General in accordûnce with
the relevant provisions of the Staff Regulations and Staff Rules.
Similar provisions are also contained in the other letters of appoint-
ment.

14. With respect to the Staff Regulations (Documents 21 and
22), the most pertinent provisions are the following :Article I
(Regulations 1.1 to I.IO),\\,hich deals with the duties, obligations
and privileges of staff members ; Article 9 (particularly Regulation.
g.~), mhich deals with separation from service ; and Article IO
(Regulations 10.1 and 10.2).which deals with disciplinary measures,
including summary dismissal for serious misconduct.

15. In addition to the above, Regulation 11.2 provides that the
United Nations Administrative Tribunal shall, under conditions
provided in its Statute, hcar and pass judgmeiits upon applications
from staff members alleging non-observance of thc terms of their
appointment including al1 pertinent regulations and rules.

C. Reguest by the Secretavy-Generalfor appropriation of funds for

paymeizt of awards, and concurrenceof the Advisovy Contmitted
oi~Administrative and Bzrdgetary Questions
16. The Secretary-General, iiihis Report tothe General Assembly
on Supplementary Estimates for the Financial Year 1953 (Docu-

ment IO, A/zj34) ', proposed that the General Assembly should.
appropriate the funds necessary to cover al1indemnities determined
by the Administrative Tribunal. In making his proposa1 the Secre-
tary-General stated that as Chief Administrative Oficer of the.
Organization he was obviously bound hy the decisions of the Tribu-
nal and it was not for him to discuss the findings of the Tribunal
either as concerned the. facts or as concerned the interpretation.
given to the relevant rules.

17. He also pointed out that the Administrative Tribunal,
while it was not set up by the Charter but by special decision of the
General Assembly. introduced ;animportant element in the contrac-
tual relations between the Organization and its employees. For
that reason the decisions of the Tribunal had as their basis not

' Inthis and in similar citations which follow,reference"Document IO"
is to the numberr stampccon the documents in the Dossiers submitted to the
Court under Article Gg of its Statuti:. The second reference "A/2534"is to the
officia1 'inited Xations symbol of the document in question. STATEMENT BY THE U.N. SECRETARY-GENERAL (12 III54) 195

only the unilateral decision of the General Assembly by which
the Tribunal was set up, but the present contractual relationship
between the Organization and its employees as established by that
decision. He further stated that although from the point of view
of pure form it was the Secretary-General who was a party before

the .4dministrative Tribunal, from the point of view of substantive
interest the General Assembly, which alone conld appropriate
funds, must be considered a party to the decisions of the Adminis-
trative Tribunal. (Onthis last point seestatements of the Chairman
of the Advisory Committee on Administrative and Budgetary
Questions and of the Secretary-General, Document 1, Fifth Com-
mittee, 420th meeting, paras. 20-21.)

18. The views of the Secretary-General were also presented to
the Fifth Committee at its 425th meeting on 7 December 1953
(Document 5, paras. 7-14).
19. The -4dvisory Committee on Administrative and Budgetary
Questions in its Twenty-fourth Report to the Eighth Session of
the .General Assembly (Document II, A/2580) noted that the
Secretary-General had included in his Supplementary Estimates

the sum of $179,420to cover the awards of compensation made by
the Tribunal and expressed its concurrence in this appropriation
on the grounds that the Secretary-General's action had been taken
in accordance with the Statute of the Administrative Tribunal.

D. Considerationbythe Fifth Committee andbythe GeneralAssembly
20. The Fifth Committee considered the question of Supplemen-
tary Estimates for 1953 at its 420th to 423rd, 425th to 427th and
429th meetings from 3 to g December 1953 (Documents 1-8). By
far the greater part of the discussion on Supplementary Estimates

was directed to the Secretary-Generai's proposa1for the appropria-
tion of funds necessary for the payment of the awards of compen-
sation.
21. Consideration was opened by the representative of the United
States, who presented a detailed argument in opposition to the
appropriation of the funds in question (Document I, Fifth Com-
mittee, 420th meeting, paras. 23-70). In the discussion which

followed, a variety op opinions emerged.
22. A number of representatives who spoke in the Fifth Com-
mittee were of the opinion that the General Assembly was obligated
to pay the awards. Those favouring the appropriation were :
Netherlands (Document 2, 421st meeting, paras. 12-20) ;

Colombia (Document 2,42Ist meeting, paras. 39-49) ;
Uruguay (Document 3, 422nd meeting, paras. 38-48) ;
Canada (Document 4, 423rd meeting, paras. 1-8) ;
United Kingdom (Document 4, 423rd meeting, paras. 18-24) ;
New Zealand (Document 4, 423rd meeting, paras. 25-40) ;
Yugoslavia (Document 4, 4z3rd meeting, paras. 41-45) ;196 STATEllENT BY THE U.N. SECRETARY-GENERAL (12 III 54)

Syria (Document 5, 425th meeting, paras. 15-26) ;
I'oland (Document 5, 425th meeting, paras. 30.36) ;
India (Document 5, 425th meeting, paras. 40-50) ;
Union of Soviet Socialist Reriuhlics (Document 5, 425-. m,-et in^, -
paras. 53-58) ;
Belgium (Document 5, 425th meeting, paras. 59-62) ;
Sweden (Document 5, 42-.h , " me et in^. Daras. 67, ,),.:
enm ma (Dkocument 5, 425th meetkg, paras. 72-73) ;
Brazil (Document 5, 425th meeting, paras. 74-75) ;

Czechoslovakia (Document 6, 426th meeting, paras. 30-33) ;
France (Document 6, 426th meeting, paras. 37-49) ;
Nonvay (Document 6, 426th meeting, paras. 51-56) ;
Lebanon (Document 6, 426th meeting, paras. 57-65) ;
Mexico (Document 6,426th meeting, paras. 66-70) ;
Egypt (Document 6, 426th meeting, para. 92).
23. Many of these representatives believed that awards of
compensation by the Tribunal could in no circumstances be subject
to review and refusal of payment by the General Assembly. Some

representatives (the Netherlands, United Kingdom, New Zealand,
India) who favoured the payment of the awards, however, indicated
that in exceptional circumstances, which they did not believe
existcd in the cases under consideration, the General Assembly
might have a right to review decisions and withhold payment,
and the remarks of some other representatives were open to a
similar inference.
24. On the other hand, certain representatives believed not only

that the General Assembly had the right to review awards of the
Administrative Tribunal, but that it should refuse payment of the
awards in question. Representatives maintaining this position in
the Fifth Committee were as follows :
United States (Document 1, 420th meeting, paras. 23-70) ;
China (Document 2, 421st meeting, paras. 1-11) ;
Argentina (Document 2, prst meeting, paras. jo-53) ;
Cuba (Document 4, 423rd meeting, paras. 9-17) ;
Dominican Republic (Document 4,423rd meeting, paras. 51-57) ;

Turkey (Document j, 425th meeting, paras. 37-39).
25. The representatives of Australia (Document 2, Fifth Com-
mittee, 421st meeting, paras. 21-38) and Liberia (Document 4,
Fifth Committee, 423rd meeting, paras. 46-50)believed the amount
of the awards should be reviscd by the General Assembly before
payment.
26. Finally, some representatives, although believing that the
.
awards should he paid, nevertheless considered that the General
Assembly should not take a hasty decision but should first seek
assistance on legal questions from the International Court of
Justice. It \vas this làst view which formed the basis for the
proposals submitted by delegations to the Fifth Committee. STATEXENT BY THE U.N. SECRETARY-GENERAL (12III 54) 197

27. There were two lines of thought conceming the formulation
of the questions to be submitted to the Court which found expres-
sion in these proposals. The first view was that incorporated in
the joint draft resolution (Document 12, A/C.j/L.z63) submitted
by Canada, Colombia and the United Kingdom, which was intro-
duced by the representative of the United Kingdom at the
425th meeting of the Fifth Committee on 7 December 1953
(Document 5,paras. 63-66). The text of this joint draft resolution
which was adopted without change is the same as that of Reso-
lution 785 A (VIII) reproduced in paragraph 2 above.
28. The United Kingdom representative in introduciug this
draft resolution pointed out that "the questions were of a general
character, strictlylegal in nature and limited in scope and were

designed to elicit the maximum guidance from the Court without
calling upon it actually to retry the cases which had been adjudi-
cated by the Administrative Tribunal" (Docunient 5, Fifth Com-
mittee, 425th meethg, para. 63 ;see also Document 4, Fifth
Committee, 423rd meeting, para. 24).
29. He also explained that the draft resolution made no
provision for the supplementa~ appropriation requested, and it
was to be assumed that if it were adopted adecision on the appro-
priation would be deferred until the ninth session of the General
Assembly (Document 5,Fifth Committee, 425th meeting, para. 64).

30. There were very few statements in the course of the
discussion which were directly related to the interpretation of
the questions. The representative of the United States referred
to the "legal question of the General Assembly's power" and
said that "if the draft resolution were adopted and when the
Court had given its Advisory Opinion, the General Assembly
would have an authoritative answer regarding the relationship
between the General Assembly and the Administrative Tribunal,
an answer defining the General Assembly's power in relation
to awards given by the Tribunal" (Document 6, Fifth Committee,
426th meeting, paras. 78 and 79).
31. The representative of Brazil (Document 5,Fifth Committee,
425th meeting, para. 75). in discussing the reference of the question

to the Court, spoke of the problem of "the constitutional powers
of the General Assembly", and the representative of Pakistan
(Document 6, Fifth Committee, 426th meeting, para. 76) referred
to "the nature of the relationship between the General Asseinbly
and the Administrative Tribunal".
32. The representative of Argentina, while he did not believe
that the proposed questions covered the particular cases with
which,the Assembly was concerned, was "prepared to accept
the draft resolution submitted by the three delegations provided
that it was interpreted to mean that the Court, in considering
the first question, would also take the two following questions198 STATEMEKT BY THE U.K. SECRETARY-GETER 12L III54)

into account : (a) could a subsidiary organ impose final decisions
upon the General Assemhly : and (b) was the General Assembly

empowered to deal with the form and substance of any appro-
priation ta he included in the United Nations budget". (Docu-
ment 6, Fifth Committee, 426th meeting, para. gr ;Document 7,
Fifth Coinmittee, 427th meeting, para. II.)
33. The representative of India (Document 5, Fifth Committee,

425th meeting, para. 50) believed that the reference to the Court
should not be made in such a way as to imply that the Committee
\vas submitting the Tribunal's decisions to review by the Inter-
national Court of Justice. (See also on this point statement by
the Secretary-General, Document 5, Fifth Committee, 425th meet-
ing, para. IO.)

34. The second view, embodied in amendments proposed by
France (Document 13, A/C.j/L.267), accepted the questions of
a general character in the joint draft resolution, but proposed
that the Court should apply the priiiciples which it might formulate

to the cases in question. The first proposed amendment was the
deletion of the words "on any grounds" from question (1) in the
joint draft resolution. The representative of France considered
that these words "were far too wide" (Document 6, Fifth Com-
mittee, 426th meeting, para. 74). Subsequently he explained that
this proposed amendment affected only the wording. (Document 9,

471st Plenary lleeting, para. 70.)
3j. The second French amendment proposed the addition of
the following to question (2) of the joint draft resolution :

"Do these grounds apply to decisionswhich have led to a request
for appropriations ? '"
36. At the suggestion of th,: representative of Colombia, this

question was rephrased to read as follo~vs :
"Do these grounds, whatever they may be, apply to any of the
decisions which have led to the request for the appropriation ?"
(SeeDocument 6, Fifth Committee, 426th meeting, paras. 72, 113
and 114.)

37. The representative of France explained in Plenary Rleeting
that his Delegation had proposed this addition because it "con-
sidered it desirable that the application to those cases of the
general grounds which the Court migbt give should not provoke

another debate in the Assembly, and that the Court itself should
be asked to make the practi~rl deductions relevant to the cases

This text, originally proposed by Francewas contained inthe Provisionai
of, the Fifth CommitteeIt is this provisionadocument A/C.5/L.267hto which
referenceis made during thatmeeting : see particularDocument 6, paras.72,
73, 74."3 and "4. The tcxt ofh/C.5/L.z67 which will be found in Docinrnent 13
is the finalieed text incorporchanges acceptedbythe representativofFrance
inthe course of the mectiiig. STATEMENT BY THE U.N. SECRETARY-GENERAL (12 III54) 199

in question from whatever principles it might have formulated".
(Document 9, 471st Plenary Meeting, para. 70.)
38. The representative of Israel, in explaining his vote in favour
of the French amendments, said that they would give greater
precision to the question that was to be put to the Court, and
would provide some guidance for the General Assembly when
it discussed the matter (Document 7, Fifth Committee, 427th
meeting, para. 17).

39. In a separate proposal (Document 14, A/C.5/L.268/Rev.1)
for amendment of a draft resolution previously approved by the
Fifth Committee conceming unforeseen and extraordinary expenses
for the financial year 1954 (Document 15, A/C.5/L.264), France
also proposed that the General Assembly should authorize the
Secretary-General to pay the awards from funds provided for
unforeseen and extraordinary expenses, in the event that the
Court should find that the General Assembly was not entitled
to refuse to give effect to the awards. In introducing this proposal
the representative of France stated that in his opinion the Secre-
tary-General should be in a position to pay out the compensation
immediately after the Court had given its Advisory Opinion,

if that was the action recommended (Document 6, Fifth Com-
mittee, 426th meeting, para. 49).
40. A few representatives who favoured paymeut of the awards
opposed any reference of the matter to the Court. The represen-
tative of Czechoslovakia did not feel that the General Assembly
should submit to the Court questions which had been settled
once and for al1 by the Tribunal (Document 6, Fifth Committee,
426th meeting, para. 33) The representative of the Union of
Soviet Socialist Republics believed there were no grounds for
reference to the Court, because the Statute was abundantly clear
on the issues. The General Assembly could not challenge the

judgments of the Tribunal. (Document 5, Fifth Committee, 425th
meeting, para. 57 ;Document 7, Fifth Committee, 427th meeting,
para. 21.)
41. Likewise a few representatives opposing the appropriations,
-although abstaining in the vote on the joint draft resolutions,
spoke against a request to the Court. The representative of Turkey
thought it unnecessary to ask the Court whether the General
Assembly had a right to review the Tribunal's awards (Docu-
ment 5, Fifth Committee, 425th meeting, para. 39). The repre-
sentative of China considered that there was no doubt of the
Gencral Assembly's rights and that the questions contemplated

in the joint draft resolution were not really legal questions (Docu-
ment 6, Fifth Committee, 426th mecting, para. 93).
42. The representative of Australia did not believe that reference
to the Court would serve a useful purpose. The Court had no
cornpetence to review the cases, determine issues of fact, or give 200 STATEMENT BY THE U.N. SECRETARY-GENER (AL III54)

instructions to the General Assembly. He thought it \vas uncertain
whether the Court, even if requested, would undertake the task,
as it was not obliged to do so. A further doubtful point, he believed,
was whether the claimants would be entitled to be heard by the
Court. The procedure would also involve delay and justice should
not be tardy. He did not believe the General Assembly would
surrender its sovereign judgment to an outside authority by
accepting in advance the Advisory Opinion, and if it were not
prepared to act upon the opinion there would be no purpose in
consulting the Court. (Document 2, Fifth Committee, 4zrst meet-

ing, paras. 36-37.)
43. Many delegations which had expressed a preference for an
immcdiate decision by the General Assembly, either for or against
the appropriation, agreed, in view of the diversity of opinion
and the complexity of the problem, either to support.the request
to the Court or, at least, to abstain from opposing it. (See for
example the following statements in the Fifth Committee by the

representatives of : New Zealand, Document 4, 423rd meeting,
para. 38 ;India, Document 5, 425th meeting, para. 50 ; Belgium,
Document 5, 425th meeting, para. 62; Document 7, 427th meeting,
para. 27 ;Brazil, Document 5, 425th meeting, para. 75 ; United
States, Document 6, 426th meeting, para. 78 ; Egypt, Document 6,
426th meeting, para. 92 ;Netlierlands, Document 6, 426th meet-
ing, para. 94 ;Dominican Republic, Document 7, 427th meeting.
para. 12 ; Uruguay, Document 7, 427th meeting, para. 26.)

44. Finally, there may be noted the positions taken with regard
to the French amendments to the joint draft resolution, and
the French proposa1 for authorizing payment should the Court's
opinion uphold the validity of the Tribunal's decisions. Some
representatives who did not wish to see the question reopened
/at the ninth session of the General Assembly, stated that if the
French amendments were not adopted they could not support
the reference to the Court. (See for example the statements of
the representatives of Mexico, Document 6, Fifth Committee.
426th meeting, para. 70 ; Document 9, 471st Plenary Meeting,

paras. 76-80; Belgium, Document 6, Fifth Committee, 426th meet-
ing, para. 95 ; New Zealand, Document 7, Fifth Committee,
427th meeting, para. 18.)
45. On the other hand, some representatives considered that
the adoption of the French amendments would completely alter
the nature of the draft resolution, since the Court itself would
be asked to decide the question of payment. They did not believe
it should be asked to review individual cases. (See for example
the statement by the representative of the United States, Docu-

ment 6, Fifth Committee, 426th meeting, para. 82.)
46. Those opposing the French proposa1 (Document 14, A/C.
5/L.z68/Rev.r) considered that the General Assembly could not STATEhIENT BY THE U.X.SECRETARY-GENERAL (12 III54) 201

bind itself in advance to accept an Advisory Opinion. The final
decision would have to rest with the General Assembly which
would take its decision in the light of the Court's opinion. It
11-ouldbe improper and unconstitutional to anticipate that decision.
(See statements in the Fifth Committee by representatives of
the United States, Document 6, 426th meeting, para. 82 ; Aus-
tralia, Document 6, 426th meeting, para. 108 ; Argentina, Docu-
ment 7, 427th meeting, para. IO ; Dominican Republic, Docu-

ment 7, 427th meeting, para. 12.)
47. In support of the French proposa1 it was argued that
justice and hnmaneness dictated such a decision, for the appeal
to the Court would be wholly justified only if its opinion was
unanimously accepted, precluding the possibility of reconsidering

the findings made and of prolonging the waiting period of the
staff members involved for another year or more. While as a
general rule Advisory Opinions should not be binding, it was
sometimes useful to make an exception to that rule. (See state-
ments of the representative of France, Document 6, Fifth Com-
mittee, 426th meeting, para. 104, and Document 9, 471st Plenary
Meeting, para. 72.)

48. The final position assumed by each delcgation on the variouç
proposals is best shown in the record of the vote which in each
instance was taken by roll call. (SeeDocument 7, Fifth Committee,
427th meeting, paras. 4-9, and Document 9, 471st Plenary Meet-
ing, para. 91.)

49. At the 427th Meeting on 8 December 1953, the Fifth Com-
mittee proceeded to vote on the proposals before it. A proposa1
by the representative of the Union of Soviet Socialist Republics
that the Committee should first vote on the proposa1 of the Secre-
tary-General and the Advisory Committee for the appropriation
of the funds in question was rejected. (Document 7, Fifth Com-
mittee, 427th meeting, para. 3.)

50. The Committee rejected the two French amendments
(Document 13, A/C.5/L.z67) and the French proposa1 (Docu-
ment 14, A/C.5/L.z68/Rev.1). It approved the joint draft reso-
lntion of Canada, Colombia and the United Kingdom, and accord-
ingly recommended its adoption in its Report to the General
Assembly (Document 16, A/z624), approved at its 429th meeting
on 9 December 1953 (Document 8, para. 5).

51. The General Assembly at its 471st Plenary Meeting on
9 December 1953 adopted, by roll call vote, the resolution recom-
mended by the Fifth Committee by 41 votes to 6, with 13 absten-
tions. The text of this resolution (785 A (VIII)) may be fonnd in
Document 17, and is also reproduced in paragraph 2 above.II. sU;il~l.4~Y OF VIEWS RELEVAST TO QUESTIOSS SUBUITTED TO

THE COURT

52. In the course of the general discussion in the Fifth Committee,
and prior to the decision to consult the Court, many delegations
expressed views on issues which are relevant to a consideration
of the two questions submitted to the Court. A summary of these
views will be found in the following sections.

A. Question (1). Having regard tothe Stattcte O/ the United Nations
Administrative Tribunal and to apzy other relevant instrziments

and to the relevant records,lzas the GelzeralAssembly the right on
any groz~ndsto refz~seto give effectto an award of compensation
made by that Tribunal in fauoz&o rf a staff memberof the United
h'ations whosecotttractof service hasbeenterminated withozcthis
assent ?

I. Argzrmentsfor the right O/the GeneralAssembly to refiise to give
effect to awards O/ compensatioii

(a) Mea~iingof terlit "final und withozlt appeal"
53. Representatives of Rlember States that opposed the payment
of the awards of compensation were of the view that the General
Assembly did have the right to refuse to give them effect. They
believed that the General.4ssembly had the right to revielvdecisioiis

of the Administrative Tribunal. The provision of Article IO, para-
graph 2, of the Statute of the Tribunal that "Judgments shall be
final and without appeal" meaiit that judgments were final between
the parties and that the partics could not appeal. The parties to
a case before the Administrative Tribunal, they considered, were
the Secretary-General on the one hand, and the staff member
concerned on the other. The Cieneral Assembly was not a party,
and review of the Tribunal's decisions by it in its capacity as

supreme legislative and budgetary authority of the Organization
mas not excluded by this provision. Such a review arasnot an appeal
by either party. (United States, 1)ocument I, Fifth Committee,
420th meeting, paras. 36-37 ; China, Document 2, Fifth Committee,
421st meeting, para. 9 ; Australia. Document 2, Fifth Committee,
421st meeting, para. 27 ; Argentina, Document 2, Fifth Committee,
42ISt meeting, paras. jr-jz ;Cuba, Document 4, Fifth Committee,
423rd meeting, para. 12 ;Liberia, Document 4, Fifth Committee,
423rd meeting, para. 46 ; Dominican Republic, Document 3,

Fifth Committee, 423rd rueetiiig, para. 54.)
54. The representative of Australia (Document 2, Fifth Com-
mittee, 421st meeting, para. 27) added that the General Assembly
by Article IO, paragraph z, had indicated thatit ri-ouldnot normally
interfere with the Tribunal's exercise of its powers. However, the
paragraph in question shoiild bc interpreted as if it were follo\veà STATEMENT Bi'THE U.K. SECRETARY-GENER (A2LIII54) 203

by the words "provided that the Tribunal properly exercises its
powers". If the provision had meant that the General Assembly
could not interfere with a finding of the Tribunal, then the Statute
of the Tribunal would have heen ultra vires.

(b) Relationship of the GeneralAssembly to the Administrative
TribzcnaCNature of the Tribunal

55. The right of the General Assembly to review decisions of the
AdministrativeTribunal was based, in the first place, on an analysis
of the relations of the General Assembly to the Administrative
Tribunal and on the concept which these Delegations had of the
nature of the Tribunal. The Administrative Tribunal was a subsi-
diary organ establisbed by the General Assembly under Article 22
of the Charter. (United States, Document 1, Fifth Cornmittee,
420th meeting, paras. 32-33 ; Document 6, Fifth Committee,
426th meeting, para. 64; China, Document z, Fifth Committee,

qzrst meeting, para. 4 ;Argentina, Document z,Fifth Committee,
421st meeting, para. 50 ; Liberia, Document 4, Fifth Committee,
423rd meeting, para. 46 :Dominican Republic, Document 4, Fifth
Cornmittee, 423rd meeting, para. 53.) AS such they considered it
subject to the control of the General Assembly which at any time
conld abolish it or amend its Statute, and could therefore take
the lesser step ofreviewing its decisions. (United States, Document
I, Fifth Committee, 420th meeting, para. 35 ;China, Document z,
Fifth Comrnittee, 4zrst meeting, para. 9.)

56. The General Assembly, by creating a subsidiary organ,
could not strip itself or the Secretary-General of their powers under
the Charter (Australia, Document z, Fifth Committee, 4z1st
meeting, paras. 22 and 26), and the subsidiary organ could not
create obligations binding on the General Assernbly (Cuba, Docu-
ment 4, Fifth Committee, 423rd meeting, para. II).
The purpose of the Administrative Tribunal was to assist the
General Assembly in performing its functions with regard to
personnel policy (China, Document z, Fifth Committee, 421s
meeting, para. 4). It was in fact an administrative body with
responsibility to watch on behalf of the General Assembly the

application and interpretation of the terms of appointment of staff
members. (.4ustralia, Document 2,Fifth Comrnittee, 421st meeting,
paras. 22-24.)The General Assembly could not relinquish the power
of review even if it urished. (Dominican Republic, Document 4,
Fiftli Committee, 423rd meeting, para. 54.)
j7. The Administrative Tribunal was not to be considered a
court of CO-ordinateauthority. The General Assembly had inten-
tionally decided to call the persons who served on the Tribunal
"members"and it rejected a proposal to call thern "judges". (United

States, Document 1,Fifth Committee, 420th meeting, para. 32.)
It \vas doubtful if the General Assembly had a right to create a204 ST.ATE>lEXTBY THE U.N. SECRETARS-GENERAL (12 III54)
Court with power to enter judgments against it, and it waç clear

that the Açsembly had no intention of doing so (Australia, Docu-
ment z, Fifth Committee, 421st meeting, para. 24). The relation-
ship between the General Assembly and the AdministrativeTribunal
was not analogous to the relationship between the legislature and
judiciary of a State. For international organizations in general, the
International Court of Justice was the judiciary. Thc principle of
separation of powers did not apply tothe AdministrativeTribunal.
(China, Document z,Fifth Corumittee, qrst meeting, paras. 8-9 ;
United States, Document I, Fifth Committee, 420th meeting,
para. 34.)

(c) Bz~dgetaryeowers of the General Asse~nbly

58. The second basis for a right of review, it \vas argued, \vas
to be found in the budgetary powers of the General Assembly.
Under Article 17 of the Charter the United Nations budget had
to be approved by the General Assembly and the funds for the
payment of the awards had to be approved as a part of that budget.
The General Assembly could not relinquish its power to make
appropriations to a small group of individuals no matter how
carefully chosen they might be. Under the Charter not even the
Councils had authority to appropriate funds. This right was
reserved to the General Assembly meeting in Plenary Session and

roting by two-thirds majority. (United States, Document 1, Fifth
Committee, 420th meeting, para. 38 ; Australia, Document 2,
Fifth Committee, 4z1st meeting, para. 28 ; Cuba, Document 4,
Fifth Committee, 423rd meeting, para. 14 ; Dominican Republic,
Document 4, Fifth Committee, 423rd meeting, para. 55.)
59. The representative of Turkey (Document 5,Fifth Committee,
425th meèting, para. 38) believed that it was implicit in Article 9
of the Statute of the Administrative Tribunal that it \vas for
the Tribunal to decide wbether or not any award was juçtified,
but the fixing of the precise monetary compensation and terms of

payment was a matter for the General Assembly to decide, on the
recommendation of the Tribunal. Any negation of the power to
revise decisions in their budgetary aspects would be contrary to
the provisions of the Charter and would derogate from the sovereign
rights of the States Rlembers of the United Nations. The represent-
ative of Argentina (Document z, Fifth Committee, 421st meeting,
para. 52) stated that as with al1other budget estimates, the function
of the Fifth Committee \vas to consider not only the form but
also the substance and the supporting evidence.

60. The representative of Chile (Document 7, Fifth Committee,
427th meeting, para. 29) believed that the General Assembly was
not entitled to review or revise the judgments of the Administrative
Tribunal, but had the right to decide on the necessary budgetary
appropriations to cover the awards. STATEXENT BY THE U.N. SECRETARY-GENER A1L III54) 205

(d) Precedent O/ the League of Nations
61. The action of the Assembly of the League of Nations in

1946 in refusing to pay compensation awarded to certain staff
members hy the Administrative Tribunal of the League (see Part II
of the present statement) was cited by some representatives
in support of the right of the General .Assembly of the United
Nations to review decisions of the United Nations Administrative
Tribunal. (United States, Document I, Fifth Cornmittee, 420th
meeting, paras. 39-40 ; China, Document 2, Fifth Committee,
421st meeting, para. 9.)

62. The representative of the United States pointed out that
although the Statute of the League's Tribunal had also provided
that its decisions were final and not subject to appeal, the Assembly
of the League at its1946session had decided "that it was empowered
to review the Tribunal's decisions, that the Tribiinal had been
mistaken not only in its interpretation of its role, but also of the
law to be applied and of the staff regulations and that no compen-
sation whatsoever should be paid to the dismissed employees".
(Document I, Fifth Committee, 420th meeting, para. 40.) The

representative of China also referred to this decision of the League
of Nations as the best precedent on the right to refuse to pay
compensation awarded by the Tribunal. (Docu~nent 2, Fifth
Committee, 421st meeting, para. 9.)

2. Arguments ngainsf the right of the GeneralAssembly to refuse
to give efect to awards of compensation.
(a) Jzcdgments "final and withozzt appeal"

63. Representatives of Member States that were in favour of
the payment of the awards argued that the Gcneral Assembly
either had no right to review judgments of the Administrative
Tribunal under any circumktances, or would have that right only
in the most exceptional cases. These representatives, speaking in
the Fifth Committee, pointed to the provisions of the Statute of
the Tribunal, and particularly to Article 10, paragraph 2, nhich
provided that judgments of the Administrative Tribunal should

be final and without appeal. (Netherlands, Document 2, @rst
meeting, para. 12 ;Colombia, Document 2, qrst meeting, para. 44 ;
Yugoslavia, Ilocurnent 4, 423rd meeting, para. 42 ; Syria, Docu-
ment 5, 425th meeting, para. 19; Poland, Document 5425th meet-
ing, paras. 32-33; India, Document 5, 425th meeting, paras. 44,
46-47 ; Union of Soviet Socialist Repuhlics, Document 5, 425th
meeting, para. 53 ; Brazil, Document 5, 425th meeting, para. 74 ;
Czechoslovakia, Document 6, 426th meeting, paras. 30-31 ;
Lebanon, Document 6, 426th meeting, para. 63.) By virtue of
this Article the General Assembly had given the Tribunal the

authority of a final court. (Uruguay, Document 7, Fifth Cornmittee,
427th meeting, para. 25.) The word "final" must mean that thedecision could not be re-esarnined by anv organ of the United

Xations. (Yugoslavia, Dociiment 4, Fifth Committee, 423rd meet-
ing, para. 42.) It could not be taken to mean "open to re\.iew2'.
(Brazil, Document j, Fifth Committee, 425th meeting, para. 74.)
Once a judgment had been delivered the case was closed. (Nether-
lands, Document z, Fifth Committee, 421st meeting, paras. 12
and 14.)
64. Article z, paragraph 3, of the Statute provided that in the
event of a dispute as to whether the Tribunal had competence,

the matter should be settled 1)ythe decision of the Tribunal. The
General Assembly, it was asserted, could not arrogate to itself
the right to settle a dispute regarding the competence of the
Tribunal. (Xetherlands, Document 2, 421st meeting, para. 12 ;
Canada, Document 4, 423rd meeting, para. 3 ;Yugoslavia, Docu-
ment 4, 423rd meeting, para. 43; Uni011of Soviet Socialist Repub-
lics, Document j, 425th meeting, para. j4 ;Brazil, Document j,
42jth meeting, para. 74; Czechoslo\~akia. Document 6, 426th
meeting, para. 30.)

6j. Furthermore, the Genei-al Assembly must abide by Article g
which provided that compensation, if awarded, was to be fixed
by the Tribunal and paid by the United Nations. (Yugoslavia,
Document. 4, Fifth Committee, 423rd meeting, para. 44.) The
General Assembly had drafted the Statute and until thc text was
amended it must uphold decisions taken in accordance with its
provisions. (Union of Soviet Socialist Republics, Document 5,
Fifth Committee, 425th meeting, para. 55.)
66. The United Nations, after accepting the jurisdiction of the
Tribunal, could iiot refuse to pay the indemnities awarded by

it. It could not choose which judgments it should execute and
which it would not, without failing in its obligations as a contract-
ing party. (Belgium, Document j, Fifth Committee, 425th meet-
ing, para. 61.)
67. The representatioe of Xorway (Document 6, Fifth Com-
mittee, 426th meeting, para. 54) considered that the very fact
that the General Assembly had adopted the Statute of the Admin-
istrative Tribunal, had made it a party for al1 matters dealt
with by the Tribunal. The idea that the Secretary-General, not
the General Assembly, was a party was not justified by any

provision of the Statiitc. Articlg stipulated that it was the Organ-
ization, not the Secretary-Gimeral, which was to carry out the
Tribiinal's decisions giving nse to the payment of indemnities.
The representative of Lebanon (Document 6, Fifth Committee,
426th meeting, para. 62) also considered that the budgetary
powers of the General tissembly made it a party to the dispute
and argued that it could not be both a judge and a party in the
sanie case. Other representatives implied that they considered.
the United Xations itself to be one of the parties. (See statement STATEMEST BY THE U.S. SECRETARY-GESERAL (12 111 54) 207

of the representative of Belgium, Document j, Fifth Committee,
425th meeting, para. 61.)

(b) Xatzire of the Tribzinal
68. Those delegations which believed that the General Assembly

had no right to review decisions of the Tribunal considered it
an independent judicial body. The representative of Syria (Docu'
ment j, Fifth Committee, 425th meeting, paras. 18 and 23) referred
to it as a body independent of both the General .Assembly and
the Secretary-General, with "full power of delegated judicial
authority". The representative of the Union of Soviet Socialist
Republics (Document 5, Fifth Committee, 425th meeting, para. 53)
said that the purpose of the Statute had been to establish an
independent, ,impaitial legal organ to hear complaints of staff
members. To the representative of Canada (Document 4, Fifth

Committee, 423'13meeting, para. 7) it was "an independent organ
for staff protection". The representatives of Belgium, Sweden and
Mexico (1)ocument 5, Fifth Committee, 425th meeting, paras. 60
and 68 ; Document 6, Fifth Committee, 426th meeting, para. 67)
referred to the Tribunal as a "judicial organ" or "judicial body",
and the representative of Denmark (Document j, Fifth Com-
mittee, 425th meeting, para. 72) stressed the "independence"
of the Tribunal. The representative of Brazil said the Tribunal.
had been set up by the General Assembly as an independent

body \rith full judicial powers. (Document 5, Fifth Committee,
425th meeting, para. 74.)
69. Although established by the General Assembly, these.
delegations did not consider the Tribunal to be either an advisory
body or a mere committee of the Assembly. (Netherlands, Docii-.

ment 2, Fifth Committee, 421st meeting, para. 16; Uruguay,
Document 3, Fifth Committee, 42znd meeting, para. 43 ; Iiidia,
Document j, Fifth Committee, 425th meeting, para. 48 ; Belgium,
Document 5, Fifth Committee, 42jth meeting, para. 60; Brazil,
Document 5, Fifth Committee, 425th meeting, para. 74 ;France,
Document 6, Fifth Committee, 426th meeting, paras. 37-38.)

70. some reprcsentatives believed the Tribunal was not a
subsidiary organ. The representative of Colombia (Document 2,
Fifth Committee, 421st meeting, para. 45) 'argued that it had
not been set up under Article 22 of the Charter, but in accordance
with the General Assembly's powersand responsibilities in personnel
matters. He argued that the fact that one body was established
by another did not necessarily imply that the former was sub-
ordinate. The representative of Lebanon (Document 6, Eifth Com-
mittee, 425th meeting, paras. 60-61) thought that the Adminis-
trative Tribunal was not a subsidiary organ of the General Assembly

but of the United Nations. He considered that its powers rverenot
delegated from the General Assembly, which had no judicial po\\rers,but were received in order tliat it might exercise functions of a
judicial orgaii in the service of the United Xations.

71. Other delegations, \\,hile considering that the Tribunal \vas
a subsidiary organ of the Geiieral Assembly, said that that did
not mean that the General Assembly had overriding powers in
al1 respects. (Rlexico, Document 6, Fifth Committee, 426th meet-
ing, par;^.67.) They believed that it \vas not established to assist
the General Assembly in perfoiming functions which the Assembly
could in priiiciple perform itself, but had been established because
the General Assembly could not perform judicial functions. (Nether-

lands, Document 2, Fifth Committee, 421St meeting, para. 16.)
While the General Assembly could abolish the Tribunal or amend
its Statute, it could not review its judgments. (Netherlands, Docu-
ment 2, Fifth Committee, q~st meeting, para. 16 ; Uruguay,
1)ocument 3, Fifth Committee, 422nd meeting, para. 36; New
Zealand, Document 4, Fifth Committee, 423rd meeting, para. 28 ;
Syria, Document 5, Fifth Coinmittee, 425th meeting, para. 24 ;
Union of Soviet Socialist Republics, Document 5, Fifth Committee,
425th meeting, para. 5j ;Lebanon, Document 6,Fifth Committee,
426th meeting, para. 63 ; Mexico, Document 6, Fifth Committee,
426th meeting, para. 67,)

72. \Vith respect to the judicial nature of the Tribunal, it !vas
pointed out by the representative of Uruguay (Document 3, Fifth
Committee, 422nd meeting, paras. 36-43) that while the General
Assembly had decided to speak of "members" rather than
"judges", it had also decided to cal1 the body "Tribunal" and
not "Staff Claims Board". The Charter did not debar the General
Assembly from setting up a judicial body. He considered it a
universally recognized constitutional principle that legislative
bodies were empowered to set up judicial tribunals for which no
provision had been made in the constitution. Such a tribunal
would be just as independent in its particular field as a tribunal

established by the constitution. Its decisioris could be reviewed
only by other judicial bodies.
73. The representative of Uruguay further believed that the
nature of the Tribunal mas reflected in its functions and. by its
hierarchical position. The functions defined uiider its Statute were
judicial and its hierarchical position was that of an independent
body. It was not connected with or subject to the Secretary-
General. The Generai Assembly could not dismiss a member unless
the other members wre of the unanimous opinion that he was
unsuited for further service. (Uruguay, Document 3, Fifth Com-
mittee, 4zznd meeting, para. 40 ; France, 1)ocument 6, Fifth

Committee, 426th meeting, para. 38.)
74. The representative of France (Document6, Fifth Committee,
426th meeting, paras. 37-38) considered that although the Admin-
istrative Tribunal in many respects had the characteristics of a STATEI\lEKT BY THE U.K. SECRETARY-GEKER (1L III54) 209

subsidiary organ, the General Assembly had endowed it with
special characteristics. It did not have to submit an annual report
to the General Assembly ;its competence extended to the Special-
ized Agencies who were bound by its judgments, and so it was not
linked solely to the General Assembly.
75. The General Assembly, if it were to review judgments of the
Administrative Tribunal, it was argued by other representatives
in the Fifth Committee, would be violating the principle of sepa-
ration of judicial from administrative and legislative powers. Issues

determined by the Tribunal ivere not appropriate to submit to the
process of voting in the General Assembly. (Canada, Docnment 4,
423rd meeting, para. 5 ;Syria, Document 5425th meeting, para. 18 ;
India, Document 5, 425th meeting, para. 49 ;Sweden, Document 5,
425th meeting, para. 67; Norway, Docnment 6, 426th meeting,
para. 55 ; Lebanon, Document 6, 426th meeting, paras. 59-62 ;
Rlexico, Document 6, 426th meeting, para. 67 ;Chile, Document 7,
427th meeting, para. 29.)

(c) Bz~dgdary fiowers-contractual obligations

76. Many representatives stated that they could not accept the
view that the General Assembly could refuse payment on the basis
of its budgetary powers. Some considered that this argument
involved a confusion between a "power" and a "right". (Syria,
Document 5, Fifth Committee, 425th meeting, para. 21 ;Norway,
Document 6, Fifth Committee, 426th meeting, para. 52.) Although
the General Assembly had the power to refuse to appropriate the
money, it would be a denial of justice if it were to do so. (New
Zealand, Document 4, Fifth Committee, 423rd meeting, paras. 27-

28, see also para. 39; Lebanon, Document 6, Fifth Committee,
426th meeting, para. 62.) As a juristic person the Organization was
legally obligated to the applicants. (Xetherlands, Document 2,Fifth
Cornmittee, 421st meeting, para. 17 ; India, Document 5, Fifth
Committee, 425th meeting, paras. 46-47 ; Lebanon, Document 6,
Fifth Commitfee, 426th meeting, paras. 59 and 64.)
77. The budgetary powers must be exercised in the best interests
of the United Nations. By Article 9 of the Statute of the Admin-
istrative Tribunal, the General Assembly had committed itself

beforehand to provide the credits needed to pay the compensation
awarded (Lebanon, Document 6, Fifth Committee, 426th meeting,
para. 62 ;Norway, Document 6, Fifth Committee, 426th meeting,
para. 54). In establishing the Administrative Tribunal and deciding
that its decisions were final, the General Assembly had divested
itself of part of its rights in favour of an independent body created
by itself (Syria, Document 5, Fifth Committee, 425th meeting,
para. 23). Refusal to pay the awards would impair thestatus of the
Tribunal, imperil staff morale (Canada, Document 4, Fifth Com-
mittee, 423rd meeting, para. 7; India, Document 5, Fifth Com-

15 210 STATEIIEST BY THE U.S. SECRETARY-GENERAL (12 11154)

mittee, 42jth meeting, para. 48; Sweden, Document j, Fifth
Committee, 425th meeting, para. 68 ; Brazil, Document j, Fifth
Committee, 42jth meeting, para. 74) and undermine the prestige
of the United Xations. (Colombia, Document 2. Fifth Committee,
421st meeting, para. 48 ; Union of Soviet Socialist Republics,
Document j, Fifth Committee, 42jth meeting, para. jS ; Belgium,

Document j, Fifth Committee, 42jth meeting, para. 61 ;Uruguay,
Document 7, Fifth Committee, 427th meeting, para. 25.)
78. A further result of the acceptance of the \rie\\,that the Gener-
al .4ssembly could use its budgetary powers to opt out of a contrac-
tua1 obligation \vould be that no confidence could be placed in any
contracts signed on behalf of the organization by the Secretary-

General or other organ. (Sweden, Document j, Fifth Committee,
425th meeting, para. 69 ;Xonvay, Document 6, Fifth Committee,
426th meeting, para. 54.)
79. The representative of France (Document 6, Fifth Committee,
426th meeting, para. 41) pointed out that up to the present time,

if the Tribunal disagreed with a decision to terminate a staff member
and asked that it should be reversed, the Secretary-General could
refuse to reinstate the staff member concerned and he might be
awarded compensation instead. If the committee refused to vote
funds requested by the Secretary-General it yould deprive him
of the means of paying suc11compensation. Consequently the
Secretary-General, as a man of honour, would consider himself
morally bound to reinstate the staff member concerned if he were

not certain of being able to award him compensation.

(d) League of Nations "pre~:ede?zt"
80. With reference to the action of the League of Nations in

1946 cited by certain representatives as a prccedent for the right
of the General Assembly to refuse to give effect to the awards of the
Administrative Tribunal, the representative of the Netherlands
considered that the League action had been incorrect and should
'not be a basis for action by the General Assembly. (Document 2,
Fifth Committee, 421st meeting, para. 18.) Other representatives
believed that while the action of the League in special circumstances
may have been proper, the cases were distinguishable from those
hefore the General Assembly. The League cases involved a refusal

of the Administrative Tribunal of the League to recognize as valid
a change in the Staff Regulations made by the Assembly of the
League of Xations. These representatives considered the League
action involved special circumstances and could not serve as a
precedent. (France, Document 1, Fifth Committee, 420th meeting,
para. 71 ;Colombia, Document 2, Fifth Committee, 421st meeting,
para. 46 ; United Kingdom, Document 4. Fifth Committee, 423rd
meeting, para. 22 ;Xew Zealand, Document 4, Fifth Committee,

423rd meeting, para. zg ;klesico, Document 6, Fifth Committee,. ST.4TEbIENT BY THE U.N. SECRETARY-GENER( 12 III54) 211
426th meeting, para. 68.) The representative of Sweden (Document
5. Fifth Committee, 425th meeting, para. 71) agreed both with the

representative of the Netherlands that the action of the League
had been mistaken, and with the representative of France that the
case was not similar tothose before the General Assembly.
81. As will be noted, some representatives who had favoured
payment and had joined in many of the foregoing arguments
against the right ofreview of decisions by the General Assembly,
stated or implied that in exceptional circumstances, which they
did not believe existed in the cases under consideration by the

General Assembly, the Assembly might have a right to refuse
payment of the awards. (See paragraphs 95-101 following.)

B. Question (2). If the answer given by the Court to question (I)
is in the afirmative, what are the principal grounds upon which
the GeneralAssembly could lawfully exercise such right?

82. During the discussion in the Fifth Cornrnittee, a nnmber of
representatives suggestedvariousgrounds which they believed might
justify the General Assembly in refusing to give effect to awards
made by the Administrative Tribunal. Some of these grounds
were put forward in support of their poçition(by representatives of
Member States who opposed payment. In other instances certain
representatives who favoured the appropriation, nevertheless
suggested that in special .circumstances the General Assembly
might be justified in withholding payment.

1. Grounds for reinsing to give efect to awards, suggested by iepre-
sentatives'opposing payment

83. The representative of the United States (Document I, Fifth
Committee, 420th meeting, paras. 30, 42 and 70) suggested that
the General Assembly should refuse to pay the compensation
awarded for the following reasons :
(1)The Tribunal had misconstrued its role and exceeded its
proper powers.

(2)TheTribunal had made serious errors of law in its application
of the Staff Regulations.
(3) The Tribunal had made errors of judgment and fact in .
calculating the amounts of the awards.
84. With respect to the first point, the representative of the
United States stated that the Tribunal had misconstrued its role
and exceeded its proper powers by substituting its judgment in
certain areas of administration for that of the Secretary-General.

(Document I, Fifth Committee, 420th meeting, para. 31.) Specifi-
cally, he believed that, contrary to the intention of the General
Assembly, the Tribunal had, in the field cf disciplinary action,
usurped the functions of the Secretary-General under the Charter.212 STATEMENT BY THE U.N. SECRETARY-GENER A2L II154)
He considered that it had acted as though its function \\'as to try

cases de ~iovo,had ignored the function of the Secretary-General
to prescribe standards of conduct and service, and had substituted
its evaluation of the facts and its assessment of the gravity of the
offence for those of the Secretary-General. His Government "could
not view lightly an infringement by a subordinate administrative
body of the General Assembly of the powers granted to the Secre-
taryGeneral under the Chartcr". (Document I,Fifth Committee,
420th meeting, paras: 27, 43-59, see particularly paras. 50, 58

and 59.)
85. With respect to the second point, the representative of the
United States believed that among serious errors of law made by
the Tribunal in the application of the Staff Regulations were,
first, the reversal of the Secretary-General's decision on the effect
of the refusal of certain staff mcmbers, on the basis of the provision

against self-incrimination in the Fifth Amendment to the Consti-
tution of the United States, to answer questions concerning sub-
versive activities nhich had been put to them by the authorities
of their Govemment (Document 1,Fifth Committee, 420th meeting,
paras. 60-66) ; and second, the decision in one case which ignored
the intention of the General Assembly to give the Secretary-General
complete discretion in terrninating temporary-indefinite contracts
under Staff Regulation 9.1 (c). (Document I, Fifth Committee,
420th meeting, paras. 67-68.)

86. With respect to the third poinr, the reprcsentative of the
United States believed that the Tribunal had made errors of
judgment and fact in calculating the amounts of the awards, as
he considered its reasons given for the variations in the amounts
of these awards to he coiiflicting, inconsistent, and often merely

capricious. Certain of the reasons given, he believed, did not
correspond aith know facts. (Document 1, Fifth Committee,
420th meeting, para. 69.)
87. The representative of Australia (Document 2, Fifth Commit-
tee, 421st meeting, para. 29) argued that certain of the awards

should be reduced for the follciwingreasons :
(1) Some of the awards were manifestly excessive.
(2) If the awards were giveii effect, serious inequality of treat-
ment among the applicants would be produccd.

(3) The Tribunal had in many cases aliowed its awards to be
influenced by u~ongful considerations of what was called
"expectancy of cmployment" and by erroneous interpretation
with respect thereto.
(4) The Tribunal had allo\ved its assessment of compensation
to be influenced by quite irrelevant considerations.
(5) The Tribunal had in certain cases beeii under a misappre-

hension regarding certain facts. STATEMENT BY THE U.N. SECRETARY-GENER(A 1L III54) 213

(For discussion by the representative of Australia of specific
cases illustrating the foregoing points, see Document 2, Fifth
Committee, 421st meeting, paras. 30-34.)

88. The representative of Australia (Document 2, Fifth Commit-
tee, 421st meeting, para. 26) also suggested that the General
Assembly would not be bound to accept decisions of the Adminis-
trative Tribunal in the following hypothetical cases :
(1) If the Tribunal were to flout the anthority of the General
Assembly.

(2) If it were to act perversely or unreasonably.
(3) If it were to act capriciously or were to.condone capricious-
ness on the part of the Secretary-General.
(4)If it were to exceed its jurisdiction.
(5) If it were to act with venality.
(6) If its decisions or its awards were to produce or accentuate
an injustice rather than to correct it.

89. In addition, the representative of Australia said the United
Nations should pay compensation only if it was not unreasonable
or discriminatory and if the Tribunal had not exercised its power
improperly. (Document 2, Fifth Committee, 421st meeting,
para. 28.)
90. The representative of the Dominican Republic (Document 4,
Fifth Cornmittee, 423rd meeting, para. 56) opposed payment of

awards on the following grounds :
(1)They were cootrary to fundamental principles of law.
(2) They trespassed on the disciplinary powers of the Secretary-
General.
(3) They exposed the host country to serious risks and obliged
it to contribute to payment of compensation to persons
lacking the impartiality and integrity required of inter-
national civil servants.

91. The representative of China believed that the General
Assembly could refuse to pay compensation awarded by the
Administrative Tribunal if it considered that the Tribunal had
exceeded its cornpetence. (Docnment 2, Fifth Committee, 4z1st
meeting, para. 9.) He considered that the Tribunal had entered the
field of disciplinary action which lay within the exclusive com-
petence of the Secretary-General. (Docnment 2, Fifth Committee,

4z1st meeting, paras. 3-8, particularly para. 6.)
92. The representative of Cuba opposed the payment of awards
as he believed the Tribunal's judgments infringed the powers of
the General Assembly and of the Secretary-General. (Document 4,
Fifth Committee, 423rd meeting, para. IO.) The Tribunal had
fixed the amount of the awards arbitrarily and they were punitive
rather than compensation for damages sustained. (Document 4,
Fifth Committee, 423rd meeting, para. 15.) STATE31EST BY THE U.S. SECRET-IRY-GEXERAL (12 IIIj4) 215

.4rbitral Procedure submitted by the International Law Commis-
sion and discussed in the Sixth Committee (A 2436). Article 30 of
that draft provided that the validity ofan alvard could bcchallenged
by either party on one or more of the folloiving grounds :that the
Tribunal had exceeded its powers, that there had been corruption
on the part of a member of the Tribunal, or that there had been a

serious departure from a fundamental rule of procedure, including
failure to state the reasons for the award. On any of these grounds
the International Court of Justice was to be competent to void the
arbitral award. (Article 31.) The representative of the Netherlands
\vasof the opinion, hoivever, that noneof thesegrounds wereapplica-
ble in the particular cases in question.

99. The representative of Mexico (Document 6, Fifth Committee,
426th meeting, para. 68), referring to the decision taken by the
League of Nations in 1946, stated that the League Assembly had
refused to implement the decisions of its Tribunal on the ground
that the latter, instead of confining itself to the study of particular
cases, had encroached on the legislative competence of the League
Assembly. The position of the League Assembly had therefore been
perfectly sound. The present case \\.asdifferent.The Administrative
Tribunal had not encroached on the General Assembly's legislati\re
domain. (Seealso statements of representatives of France, Document

1,Fifth Committee, 420th meeting, para. 71 ;Colombia, Document
2,Fifth Committee, 4z1st meeting, para. 46 ;the United Kingdom,
Document 4, Fifth Committee, 423rd meeting, para. 22.)
roo. The representative of the United Kingdom (Document 4,
Fifth Committee, 423rd meeting, para. 22) believed that the General
Assembly \vas not always hound by the judgments of the Adminis-

trative Tribunal. He said, however, that "It might have been
expected that al1delegations would agree that, if the Tribunal had
acted \\rithin its competcnce and had interpreted and applied the
Staff Regulationscorrectly, the General Assernbly ought to vote the
appropriations required to pay the compeiisation." The represent-
ative of Uruguay (Document 3, Fifth Committee, 422nd meeting.
para. 47) said that "In the particular cases under discussion the
Tribunal had by no means tried to substitute its authority for that
of the General Assembly, nor had it overruled nor even reviewed aiiy
of the General Assembly's decisions." Neither the represcntative of

the United Kingdom nor the representative of Uruguay -stated
precisely what they considered the effect would be if the position
had been different.
ror. The representative of Chile (Document 7, Fifth Committec,
427th meeting, para. zg), although believing the General Assembly
\\.as not entitled to review judgments of the Administrative Tribu-
nal, and \vh'ilenot expressing bis views on the particular cases in

question, considered that in voting on the various sections of the
United Nations budget, it was possible to cast a negative vote on acertain section because it \vas considered to be excessive without in
any way contesting the legality of the purpose for which the funds

were intended.

3. "Grounds" considered as not ji~stifying reft~salto give efect to
awards by representativesfavouring payment
102. Certain representatives who favoured payment of the awards
directed their remarks to certain grounds which had been put for-
ward by other representatives as justifying a refusal by the General
Assembly to give effect to the awards, and stated that they did not
agree that such grounds \vould justify the Assembly in withholding
payment.

103. With respect to the argument concerning excessive awards,
the representative of Belgiuni (Document 5, Fifth Committee,
425th meeting, para. 61) stated that the United Xations could not
refuse to pay indemnities on the grounds that the sums fixed were
too high. The representative of Mexico (Document 6, FifthCom-
mittee, 426th meeting, para. 6q) said that he appreciated the view
that the amount of compensation awarded \vas excessive. His dele-
gation had approved the amendment to Article 9 of the Statute
limiting the amount of compensation which might be awarded. That
amendment, he believed, could not be retroactive and the General
Assembly was bound to authorize payment in the amount fixed by
the Tribunal. (Seealso statements by the representatives of Colom-
bia, Document z, Fifth Committee, 421st meeting, para. 40, and

Canada, Document 4, Fifth Committee, 423rd meeting, para. 4.)
104 With respect to the question of interpretation, therepresent-
ative of the Netherlands (Document 2, Fifth Committee, 42xst
meeting, para. 19) said that quite possibly the Tribunal might not
constme thepertinent articles of the Statute or the Staff R~gdations
'in the same way as the Secretary-General, the General Assembly
orcertain Member States,but thit did not rnean that ithad exceeded
its powers.
105. As to alleged mistakes of fact, the representative of New
Zealand (Document 4, Fifth Committee, 423rd meeting, para. 37)

suggested that "If, as had been suggested, certain relevant facts
had not been put before the Tribunal, there would be no objection
to the Secretary-General's conimunicating the additional informa-
tion to the Tribunal so that it could, if it chose, reconsider the
amount of compensation."
4. Additional commerztsof representatives concerning competence

106. Among the grounds suggested for refusal to give effect to
awards, the question of competence \vas most widely discussed. As
bas been noted above, the representatives of the United States,
Australia. Dominican Republic, China, Ciiba, New Zealand, Nether-
lands and Mexico referred to lack of competence or excess of power STATE~IEST BY THE U.X. SECRETARY-GENERAL (12 III54) 217

either as a grounds or as a possible grounds on which awards might
be set aside. In addition to those references already cited (sec
paras. 64, 83-84, 88-92, 97-100 above), note may be taken of the
following. The representative of New Zealand (Document 4, Fifth
Committee, 423rd meeting, paras. 30-35) discussed the particular
issues in detail and concluded that in the cases in question the
Tribunal had been competent. A number of other representatives
stated that the Administrative Tribunal had been competent in
the cases under consideration by the General Assembly. (Colombia,

Document 2, Fifth Committee, 421st meeting, para. 44 ;Uruguay:
Document 3, Fifth Committee, 423rd meeting, para. 47; Sweden,
Document 5, Fifth Committee, 425th meeting, para. 70 ;Denmark.
Document 5, Fifth Committee, 425th meeting, para. 72.)
107. The representative of Canada (Document 4, Fifth Commit-
tee, 423rd meeting, para. 3) said that under Article 2, paragraph 3,
of the Statute, disputes concerning cornpetence were ta be
settled by decision of the Tribunal. In the cases under discussion,
the question of competence did not arise, and had not been raised
by the Secretary-Gencral. The representative of India (Document 5,

Fifth Committee, 425th meeting, paras. 44-45) considered that the
Statute conferred on the Tribunal the competence it had exercised
in the cases in question. The Tribunal was the judge of its own
competence.
108. The representative of the Union of Soviet Socialist Republics
(Document 5, Fifth Committee, 425th meeting, paras. 53-55)
stated that the Tribunal was the sole judge of its competence, and
the Fifth Committee could not discuss the issue.

109. The representative of Brazil (Document 5,Fifth Committee,
425th meeting, para. 74) considered that asthe Tribunat alone aas
authorized, by paragraph 3, of Article 2 of its Statute, ta settle
disputes as to its competence, the allegation that it had exceeded
its competence was without force.
110. The representative of Yugoslavia (Document 4, Fifth
Committee, qz3rd meeting, para. 43) referring to Article 2, para-

graph 3, of the Statute, said that even if anyone raised doubts
regarding the competence of the Tribunal-and thc Yugoslav
delegation certainly did not-the General Assembly could not
arrogate to itself the right ta settle a dispute regarding the compe-
tence of the Tribunal.
III. The representative of the Dominican Republic (Document 4,
Fifth Committee, 423rd meeting, para. 54) on the other hand, also
referring to Article 2,paragraph 3, of the Statute, stated that this
provision, for the same reasons (Le. it was only meant to apply

to the parties), d'idnot imply that the General Assembly could not
review a decision of the Tribunal concerning its competence.
112. Finally, the representative of Mexico (Document 6, Fifth
Committee, 426th meeting, para. 70) stated, with refereuce to the218 SThTE%lEST Bi' THE U.K. SECRETARU-GESERAL (12 IIIj4)

joint draft resolution proposed by Canada, Colombia andthe United
Kingdom, that "If the Court were asked not to re-examine each
case but to Say whether or not, in its opinion, the Administrative
Tribunal had exceeded its competence, his delegation \vould support
the draft resolution."

Part Tmo ; Historical strrvey O!the~dllzinistrative Tribtinal of the
League O/ Nations

1. ESTABLISHMEN OF THE LEAGUE OF NATIOXSAD~IINISTRATIVE
TRIBUNAL
113. The League Tribunal \vas created by a Resolution of

26 November 1927 of the League Assembly (League of Nations
Official Journal, 9th Year, No. 5 (May 1gz8), p. 751; Annex I)'.
Before that time the right of appeal of staff rnembers of the League
and of the International Labour Office was governed by a Resolution
of 17 December 1920 of the League Assembly (Records of the
1st Assembly, Plenary Meetings, pp. 663-664) which provided :
"That al1 Members of the Secretariat and of the International
Labour Officeappointed for a period of five years or more by the
Secretary-Generalor the Ilirector of the International Labour Office
shall, in the case ofdismissal,have the right ofappeal to the Council
or to theGoverning Body of the International Labour Officeas the
caseinay be."

"4. This provision was invoked only once, in 1925, when the
Council appointed an ad hoccoinmission of jurists to deal with the
case of II. François Monod, a member of the League Secretariat.
Shortly thereafter the League Supervisory Commission initiated
steps which led in 1927 to the creation of the Administrative
Tribunal andthe abrogation of the Resolution of 17December 1920.

IIj. The Supervisory Comniission submitted a report and a
draft statute (ultimately adopted \\rith one minor change) to the
Assembly at its eighth ordinary session in 1927. (Records of the
8th Ordinary Session of the Assembly, Fourth Committee (League
of Xations OfficialJournal, Special Supplement Xo. j8), pp. 250-257 ;
Annex 2.) The report statcd that in the course of 1925 attention
had been directed ta the fact that "officials of the League cannot
eiiforce the terms of their employrnent by any form of legal proce-

dure", andthat the establishment of a Tribunal was espected "not
merely to remove a grievaxice which may be felt by the staff" but
also to be in the interest of successful administration. It was not
satisfactory that several hundred employees "should have no
possibility of bringing questions as to their rights to the decision
of a jndicial body". It was equally unsatisfactory "for the adminis-
trations to be both judge and party in any dispute as to the legal

' Relevantextracts froin tlic ducunlentlieLeagiicofNations are repro-
duced as annexes to thpresentstatcrnent. STATEMENT BY THE U.K. SECRETARY-GENERAL (12 III54) 219

rights of their officials, or for such disputes to be rcferred to the
Council or the Governing Body of the InternationalLabour Office".
116. The report then went on to explain the jurisdiction of the
proposed Tribunal as follows :

"Except in one class of case [relating to il1 health and service
incurred injury] ....the proposed Tribunal is to be exclusively a
judicial body set up tu determine the legal rights of officials on
strictly legal ground...The function of the proposed Tribunal will
be tu pronounce finally upon any allegation that the administration
has refused to give an officia1treatment to which he was legally
entitled, or has treated him in a manner which constitutes rrviola-
tion of bis legal rights under Lis appointment or of the regulations
applicable to his case, or, finally,hasen in an irregular or improp-
er manner a decision which was within its competence. An official,
forexample, who has been dismissedfor inefficiencyunder a proviso
in the terms of his appointment wliich entitles the administration to
disniiss him if it is satisfied that he is inefficient will not be able to
he will be able to bring any alleged irregularity in the decision (for
example, failure to cause a proper enquiry to be made by the com-
petent paritative cornmittee) before the Tribunal with a view to the
rescinding of the decision on this ground. It will be seen that the
Tribunal will be the final authority for the interpretation of the
terms of an officiai'sappointment and the regulations applicable to
the official."

117. The Supervisory Commission stated that in considering the
composition of the Tribunal it had been guided by the principle
that "the Tribunal should be an entirely independent and strictly
jzcdicial body".

118. In connection with its explanation of remedics which could
be given by the Tribunal, the report stated :
"No provision for the revision of judgments of the Tribunal is
inserted in the Statute. It is considered that, in the interests of
finality and ofthe avoidance ofvexatious proceedings, the Tribunal's
judgments should be final and without appeal, as is provided in
Article VI, paragraph 1."

119. As to the financial arrangements for the payment of
judgments, the report recommended that a nominal amount of
1,ooo francs be inserted in the budgets of the Secretariat and of the
International Labour Office "so as to provide an item to which
such compensation can be charged if it becomcs payable, and
that any sum actually required in excess of this nominal vote
be provided by a transfer under the usnal guarantees".

120. The report and draft statute prepared by the Supervisory
Commission were referred to the Fourth Cornmittee of the.
Assembly, which in turn. referred them to a sub-cornmittee
(Records of the 8th Ordinary Session of the Assembly, Fourth STATEMENT BY THE U.N. SECRETARY-GENERA L2 III54) 221

The Assembly of 1931, however, will consider in the light of the
experience gained whether there is reason to abrogate or amend the
said Statute.
The Assembly's Resolution of December 17th, 1920, giving to
certain oficials, in case of dismissal, a right of appeal to the Council
or to the Governing Body of the International Labour Office is
abrogated as from January ~st, 1928."

II. THE STATUTE OF THE LEAGUE OF NATIOXSAD~IINISTRATIVE
TRIBUNAL

125. The Statute of the League Tribunal (League of Nations
Officia1 Journal, 9th Year, No. 5 (May 1928), p. 751 :Annex 1)
is in many respects similartothat of the United Nations Tribunal,
for which it served as a basis. Article (1)of the League Tribunal's

Statute provided that :
"The Tribunal shall be competent to hear complaints alleging
non-observance, in substance or in form, of the terms of appoint-
ment of officials of the Secretariat or of the International Labour
Ciffice,and of such provisions of the Staff Regulations as are appli-
cnble to the casc."

126. Article II(2) gave the Tribunal an additional competence
to deal with certain claims in case of dismissal on grounds of ill-
health or of accident or disease in consequence of employment.
Article II (4) provided that :

"Any dispute as to the competence of the Tribunal shall be
decided by it."
127. Article VI provided in part that "judgrnents shall be final
and ivithout appeal". Article IX provided that :

"In cases falling under Article II, paragraph 1, the Tribunal, if
satisfied that the complaint waswell-founded,shall order the rescind-
ing of the decision impugned or the performance of the obligation
relied upon. If such. rescinding oa decision or execution of an
obligation is not possible or advisable, the Tribunal shall award the
complainant compensation forthe injury caused to him."
128. Article X (3) provided that :

"Any conipensation awarded by the Tribunal shall be chargeable
to the budget of the administration concerned."

III. REFUSAL BY THE ASSEMBLY OF THE LEAGUE OF NATIONS TO
PAY AWARDS OF COMP~SATION MADE BY THE LEAGUE OF NATIONS
AD~IINISTRATIV ERIBUNAL

129. On 14 December 1939 the Assembly of the League of
Nations, to meet the situation rerulting from the outbreak of
hostilities,adopted arnendments ta the Staff Regulations of the222 STATEIIEST BY THE U.X. SECRETARY-GESERAL (12 IIIj4)
League and of the International Labour Office. By these ameiid-
ments the period of notice of termination of appointment in the
case of permanent officials \vas reduced from sis months to one

month, and the payment of the compensation for termination of
appointment due to such officials \vas spread over four years.
Thereafter, most of the officials who were notified that it would
he impossible to retain their services chose either to resign or to
have their appointments suspended ; a few, however, refused to
take either course, and their appointmeiits were terminated nnder
the amended Staff Regulations. Fourteen oficial: thus terminated,
(twelve being League staff mcmbers and two being staff members of'
the International Labour Office)appealed against their terminations.

130. On 26 February 1946 the Administrative Tribunal of the
League pronounced judgments in thirteen of these cases, holding
that the complainants were entitled to six months' notice, or the
payment of six months' salary in lien thereof ; to compensation
equal to one year's salary, payable immediately ; and ta four per
cent interest on these sums. The total amount of the judgments
(escluding costs) \vas 85,000 S~vissfrancs. The reasoning of the
Tribunal \vas that the amendnients to the Staff Regulations could
not be applied to the complainants without their agreement. They
15 October 1932, on mhich date a
had been appointed prior to
Staff Regulation \vas first adopted which made appointments
subject to such changes as tlie Assembly might- decide on, and
consequently they had an acquired right to be terminated ouly
in accordance with the Staff Regulatioiis in force at the date of
their contracts of appointment. The Tribunal found it "impossible
to entertain the assumption that the Assenibly intended, by its
Resolution of December 14tl1, 1939, t,o affect acquired rights
\vithout expressly so stating". The argument that reasons of force
majeure justified the application of the 1939 amendments to the
complainants mas rejected on the ground that "it is in fact impos-
sible to entertain the idea that th'e League of Nations was not in
a position to respect the acquired rights of its staff". Consequently
it was held that the Secretary-General had wrongfully applied the

1939 amendments to the complainants (League of Xations Officia1
Journal, Special Supplement So. 194, pp. 245-249 ; -4nnex 7).
131. The .Acting Secretary-Cieneral of the Leaye consulted the
Supervisory Commission, whicli dealt with the matter in the report
on the work of its ninety-nintli session (League of Xations Oficial

Jounial, Special Supplement o. 194, p. 162 ; Annex 8). The
report stated in part :
"The Supervisory Commission,on whose proposa1 the amend-
ments in question were adopted by tlie 1939Assembly, desires to
confirm tliat it was the undoubted intention of the .4ssembly that
the decisionstherein embodietl should apply to al1officialsof tlie
League and not only to those whose contracts expressly reserved STATE)IEST Bi' THE U.S. SECRETARY-GESERA L2 IIIj4) 223
the possibility of their modification by the Assembly. The Secretary-
General and the Director of the International Labour Office, in
applying the decisionsto thecomplainants, have therefore correctly
interpreted the Assembly resolution....
As an acceptance of the findings of the Administrative Tribunal
would put its decision above the authority of the Assembly, the
Supervisory Commissioncould not takethe responsibility of advising
the Acting Secretary-General and the Acting Director of the Inter-
national Labour Officeto apply the judgments of the Administrative
Tribunal. It has accordingly advised the two Administrations to take
no action on them pending consideration of the whole question by
the Assembly."

132. The report of the Supervisory Commission (Annex 6) and
a note by the Acting Secretary-General explaining the background
of the situation (Annex 7) were submitted to the Assembly, \\,hich
referred the matter to its Second (Finance) Committee. That
Committee at its third meeting on II ApriI 1946 in turn set up a
sub-committee to consider it (League of Nations Official Journal,
Special Supplement Nu. 194, p. 123 ; Annex 9).The suh-commit-
tee's report (League of Nations Officia1 Journal, Special Supple-
ment No. 194, pp. 261-263 ; Annex IO) disagreed with the conclu-
sions of the Administrative Tribunal, and recommended that
effect should not begiven to the awards of compensation, but that
an ex grati payment should be made in respect of the complain-

ants' legal costs. The report stated :
"\Ve are entirely unable to accept the Tribunal's interpretation
that the Assembly's Resolution \vas intended to apply to a limited
class of officialsonly. This view seems to be manifestly contrary to
the facts. Although thereis no ordinary appeal from the Tribunal's
decision, we think that it is within the power of the Assembly,
\\,hichcan best interpret its owndecisions,by a legislativeresolution,
to declare that the awards made by the Tribunal are invalid and
are of no effectbothecause they sought to set aside the Assembly's
legislative act and because of their mistaken conclusion as to the
intention of that act."

133. The sub-committee also stressed that while the Tribunal
was competent to consider the application and interpretation of
the decisions of the Assembly, it could not question the validity
of those decisions themselves. The League in effect possessed
sovereign powers in regard tothe officials with whom it contracted,
aiid thus its contracts, like those of States, were governed by the
exigencies of the public interest, to xvhich private and personal
rights must give wy. It \\.as "necessary for the proper discharge
of the functions of a world organization of States that it should
possess a po~verif necessary to set aside the vested rights of private
individuals employed in its administration". The 1939 amend-

ments, unlike some earlicr ones, were intended to set aside contrac-
tua1 rights of its officials, and hence were the exercise of a legislative224 STATE3IEST BU THE U.S. EECRETARY-GESERAL (12 III54)
pomer. The Assembly could have abolished the Administrative
Tribunal, and thus have removed any remedy for dismissed offi-
cials ;and the fact that thc Tribunal remained did not significantly

alter the position.
134. The sub-committee's report added :

"No outside body exists which can enforcc the decisioii of the
Tribunal against the Assembly, and this is a not irrelevant consider-
ation in deciding whether the Assembly is sovereign in this matter
statutory provision and diplomatic usage, no remedy is availabley
against the League ; where, then, is the officials'right against ?t
Ubi jus ibi remediuma,nd the absence of any remedy in tlie circum-
stances of this case here leads to the conclusion that there is no legal
right. If only anethical right is claimed, the protection against its
abuse is not a legal but a political one lying in the hands of the
StatesIlembers of the Leagiie."

13j. The report of the sub-committee \\,as discussed at the sixth
meeting of the Second Committee on 13 April 1946 (League of
Nations Official Journal, Special Supplement No. 194, pp. 130-133 ;
Annex II). It was presented by the rapporteur of the sub-commit-
tee, the representative of the United Kingdom, who repeated the
main arguments of the report, but stated that "although he was
a lawyer he approached this matter on the broad hasis of what

was politic and right rather than on the basis of what might be
strictly in accordance with the law". 111his view, there was in fact
no lam which applied to a case like this. He urged the Committee
to concern itself not oiily with justice to the former staff members,
but also with the status of the Assembly; he thought that "It
\vas of profound importance to uphold the legal and diplomatic
immunity acquired both for the League and for the United Nations
and to maintain their high and special status."

136: The representative of France agreed with the report :
he stated that legally the Tribunal's judgments should not be
recognized as valid, and practically a decision to the coiitrary
would entai1 financial consequences which it would be difficult
to entertain. The representative of Czechoslovakia also agreed
with the report, and strcssed that the Administrative Tribunal
was not competent to pass judgment on the decisions of the Assem-
bly ;the Tribunal was subordinate to the Assembly and could
not bind it by invoking earlier decisions.

137. On the other hand, several representatives bclieved that
the Assembly was legally obligated to pay the awards of compen-
sation made by the Administrative Tribunal. The representative
of Belgium, with whom the representatives of Swedcii and the
Netherlands agreed, declared that the Assembly, as an organ
of one of the parties to the dispute, had no legal right to oppose
the execution of a judgment of the Tribunal; such an action STATEhlENT BY THE U.N.SECRETARY-GENERAL (12 III54) 225

would be absolutely contrary to the notion of law and the sover-
eignty of law, and would have extremely serious 'repercussions
in an international organization in which constant efforts had been
made to substitute law for force. He said that though the Assembly
might have abolished the Tribunal, this had not been done. 111
his view,

"When the Administrative Tribunal was estahlished, the power
of interpreting questions of law and of determining the legal rela-
tions between the League and its officials,which had previously
been attnbuted to the Council, a political organ, had been trans-
ferred to the Tribunal, a judicial organ. If, therefore, the Tribunal
was invested with the power of interpretation, it followedthat its
interpretations were operative."
138. He considered that the question was not whether the
Assembly was competent to render operative a judgment of. the
Administrative Tribunal, but whether the Assembly was competent
to prejent the execution of a judgment rendered in a matter in
respect of which the competence of the Tribunal \vas not contested.

139. The representative of the Netherlands added that since
the League was a party to the cases, it was not for the Second
Committee to examine the merits of the awards. No appeal was
provided in the Statute of the Tribunal, and consequently the
a\\rards had to be accepted. States almost without exception

acceptcd judiciai or arbitral decisions, and it would be extremeiy
regrettable if the League did not do likewise.
140. The representative of Belgium contested the assertion that
there was no law governing the case. The contract entered into
between the League and its officials constituted a legd relation,
and the Assembly had set up the Tribunal as a judicial body to
interpret that contract. There was no analogy between the legis-

lative authority of a State, which in certain circumstances could
modify contracts, and the Assembly, which did not possess sover-
eignty but was dealing with League officials who were not subjects
but Fo-contracting parties. Moreover even in States possessing
sovereignty, if contracts were amended by the legislative authority,
no tribunal had the right to give retrospective effect to such
amendments unless the new law made express provision therefor.
The absence of a remedy ,against the League of Nations did not
mean that it was governed by no law. Furthemore, reasons of
necessity could not at that time be invoked as a ground for refusal
to execute the judgments.

141. The report of the sub-committee recommending that the
awards sliould not be paid was adopted by the Second Committee
by a vote of 16 to 8, with 5 abstentions. The report was then
incorporatcd in Chapter IV of the report of the Second Committee
to the Assembly, together with a summary of the arguments made
16by the minority of the Committee (League of Nations Officia1

Journal, Special Supplement No. 194, pp. 261-264 ; Annex IO).
142. During the discussion of Chapter IV of the report at the
seventh plenary meeting of the Assembly on 18 April 1946 (League
of Nations Officia1 Journal, Special Supplement No. 1g4, p. 61 ;
Annex IZ), the representative of Belgium recalled his arguments
against the adoption of the sub-committee's views. Then, speaking
for his own delegation and for those of Denmark, Iran, Luxembourg,
the Netherlands, Sweden and Switzerland, he expressed regret at
the refusa1 to execute the judgments and made forma1 reservations
in respect alike of the decision and of several of the considerations

on which it was based. The report of the Second Committec was
then adopted, and consequently effect was not given to the awards
of compensation.

Pavt Three: Legislative ltistory of the establishment of the United
Nations Administrntiue îribzcnal

A. Preparatory Commission of the United Natio~zs

143. The question of the establishment of an Administrative
Tribunal for the United Nations was considered as early as the
autumn of 1945 by the Preparatory Commission of the United
Nations and by its Executive Committee. The Report of the Ex-
ecutive Committee tothe Preparatory Commission dated 12Novem-
ber 1945 (Document 32, PC/EX/113/Rev. 1) recommended in
paragraph 76 that early consideration should be given to the
advisability of establishing an AdministrativeTribunal to adjudicate

on any complaint lodged against the Organization by an officia1
in connection with the fulfilment of the terms of his contract
(Document 32, para. 76).
144. A revised text of this paragraph of the Executive Committee
Report was submitted to Committee Six (Administrative and Budg-
etary Committee) of the Preparatory Commission on 15 Decem-
ber 1945 by its Sub-Committee on Staff Regulations (Docu-
ment 35. PC/AB/45). This revised text nas discussed by Committee
Six and approved without change. (Document 38, Summary
Record of 24th meeting of Committee 6 ; Document 36, PC/AB/56 ;

Document 37, PC/AB/j6/Rev. 2.)
145. The Report of the Preparatory Commission (Document 33,
PC/zo, para. 74) dated 23 Deceniber 1945 recommended as follows :
"An Administrative Tribunal should be established at an early
date. It should be competent to adjudicate on an7 dispute arising
in connection with the fulfilment of an officials contract. The
Secretary-General shonld be :mthorized to appoint a smalladvisory
committee, possibly including representatives of the staff, to draft STATE~IE'IT BY THE U.X. SECRETARY-GEXERAL (12III 54) 227

for submission to the Assembly a statute for this Tribunal. The
Tribunal might include an expert on relations between employers
and employeesin addition to legal experts."

B. First part of the First Session of the GeneralAssembly
146. The section of the Report of the Preparatory Commission
on the Organization of the Secretariat which contained the ahove

reference to the Administrative Tribunal, was considered hy the
Fifth Committee (Administrative and Budgetary Committee) of
the General Assembly during the first part of the first session.
The records, howevër, contain no discussion on the subject of
an .Administrative Tribunal. The General Assembly gave effect
to the recommendation of the Preparatory Commission conceming
an Administrative Tribunal by authorizing, in Resolution 13 (1)
'. adopted on 13 February 1946 on the recommendation of the
Fifth Committee, the Secretary-General to appoint a small advisory

committee, possibly including representatives of the staff, to draft
for submission to the second part of the first session of the Generai
Assembly, a statute for an Administrative Tribunal (Document
39/A/41 and Document 40).

C. Advisory Committee on a Statute for a United Nations Adminis-
trative Tribunal
147. pursuant to Generai Assembly Resolution 13 (1),a Com-
mittee nas appointed which met at Lake Success from 16 to

26 September 1946. The membership of the Committee was:
Thanassis Aghnides, Chaitman ; Manley O. Hudson ; Joseph
Nisot ; Ladislav Radimsky ; and the following staff members :
Jean Herbert ; Frank Begley (alternate) ; M. Perez-Guerrero ;
J. G. Stewart (alternate) ; Marc Schreiher ; E. Ranshofen-Wert-
heimer (alternate) ; and Isobel Wallace. The Committee on the ,
completion of its work submitted a Report containing a Draft
Statute for an Administrative Tribunal. This report and draft
statute will be found as Annex III of Document 60, A/986.

D. Second part O/ the First Session of the GeneralAssembly

148. The Report of the Advisory Committee on a Statute for
the United Nations Administrative Tribunal was submitted by
the Secretary-General to the second part of the first session of the
General Assembly and $vasreferred to the Fifth Committee which
discussed the question at its Twenty-fifth and Twenty-sixth
Meetings on 15 and 16 November 1946 (Documents 41 and 42):
Certain representatives expressed the view that it was undesirable
to establish a Tribunal at that time, and the Delegation of the

United States presented a proposal that an Administrative Council,
composed of representatives of the staff and the Administration,
sbould be created by the Secretary-General as an alternative to
an Administrative Tribunal (Document 45, A/C.5/56). The Com-228 STATEMEST BY THE U.S.SECRETARY-GEXERAL (12III54)

mittee decided, rather than taking a vote on the principle of
whether or not a Tribunal should be established, to invite the
Seeretary-General to make a study of the matter and. mean~vhile,
to postpone the question until the next session-of the General
Assembly (Document 42, Fifth Committee, 26th meeting).

E. First fiartO/ the Third Session of the GeneralAssembly
149. The question of an Administrative Tribunal was not

included in the agenda of either the second or third sessions of
the General Assembly, as conversations were in progress on the
subject between the Specialized Agencies and the United Nations.
However, at the first part of the third session, in the course of
the consideration by the Fifth Committee of other items on its
agenda, the representatives of Belgiiim and Poland asked that
the General Assembly consider the immediate establishment of
a Tribunal (Document 46, Fifth Committee, 107th meeting;
Document 47, Fifth Committee, 159th meetiiig : Document 48,
Fifth Committee, 168th meeting). The representative of Poland
submitted a request for the inclusion of this subject in the agenda
of the third session of the General Assembly. (Document 49,

A/755.) The representative of Belgium, on the other hand, sub-
mitted a draft resolution to the Fifth Committee which would
have invited the Secretary-Geni:ral to submit a plan for an -4dmin-
istrative Tribunal to the fourth session of the General Assembly.
(Document 50, A/C.5/261.) The Secretary-General informed the
Fifth Committee at its 168th Meeting on 29 November 1948
(Documerit 48) that he plannecl to subinit a full report on the
subject to the fourth session of the General Assembly. In the
light of this statement the draft resolution of the representative
of Belgium was withdrawn, and the item proposed by the
representative of Poland \vas not included in the agenda of the
third session.

F. Foz~rtlzSession O/ the Geîze~aAl ssembly

150. The Secretary-General suhmitted his Report on the
Establishment of the United Xations Administrative Tribunal to
the fourth session of the General Assembly on 21 September 1949
(Document 60, A/986). Annex 1 of this Report contained the
Secretary-General's proposal for a Statute of the United Nations
Administrative Tribunal, for the preparation of which he had
relied heavily on the views expressed and the draft statute sub-
mitted in 1946 by the Aclvisory Committee on a Statute for a
United Nations Administrative Tribunal. The principal departures

of the Secretary-General from the earlier draft are explained in
paragraph 5 of his Report (sec Documcnt 60, A/986, para. 5).
151. Annex II of the Secretary-Gcncral's Report contained his
proposal for an amendment to the Staff Regulations consequential STATEJIEST BY THE U.X. SECRETARY-GESER (A2LIII54) 229

to the establishment of a Tribunal. Annex III contained the
Report and Draft Statute prepared by the Advisory Committee
on a statute for a United Nations Administrative Tribunal ; and
an expression of the views of the Staff Committee \vas attached
as Anne? IV. Other vie\\rs of the Staff Committee are to be found
in Document 61, Alg861Add.1, and in an oral statement by the
Chairman of the Staff Committee to the 190th Jfeeting of the

Fifth Committee (Document 54, paras. 7-26).
152. The General Assembly atits 224th Neeting on 22 Septembcr
1949 (Officia1Records of the Fourth Session of the General Assem-
bly, Plenary Meetings, p. 23). referred the Secretary-General's
Report to the Fifth Committee. TheFifth Committee alsohad before
it the views of the Advisory Committee on Administrative and
Budgetary Questions contained in its Fifth Report of 1949 (Docu-

ment 62, A/Ioo~).
153. The Fifth Committee conducted a general discussion on the
subject at its 187th to 190th meetings from 29 September to
j October 1949. (Documents 51-54,) After adjouming consideration
of the subject until 2 November 1949 (Document 65, A/C.j/L. j ;
Document 54, Fifth Committee, 190th meeting, paras. 29, 30, 37).
the Fifth Committee proceeded to an article by article discussion

and vote on the Statute at its 114th to 116th meetings (Documents
jj, 56, 57) from 2 to 4 November 1949, and at its ~~1stmeeting
(Doèument 58) on 8 November 1949. . .
154. As a basis for this consideration, the Committee had before
it a document (Document 64, A/C.j/L.4/Rev.z) submitted hy the
Secretary-General which contained a revised draft of the Statute
which had been prepared by the Secretary-General after further
consultation with the Staff Committee and in the light of amend-

ments proposed by Delegations. The document also listed the
amendments to each article urop.sed.bv the Advisorv Committee
:ilid t :ri IIIOI. 'l'hc Sccrt:tsry-C;<~nerilhad 1)cc.n
inforiiied by the >tait Coi~i~~iitrcti:t the reviie<ldr:ift\i.:i:iccept-
able from the staff point of view.
155. The Fifth Committee, at its ~~1stmeeting on 8 November
1949, approved the Uraft Statute as a whole by 39 votes to 2, with

2 abstentions (Document 58, para. 35). and recommended it for
adoption in its Report to the General Assembly (Document 68,
A/IIZ~ and Corr. 1).The history of the consideration of this ques-
tion by the Fifth Committce, with a summary of views and a record
of decisions, is contained in this report.
156. The Report of the Fifth Committee was considered by the
General Assembly at its 255th meeting on 24 November 1949

(Document 59). The Assembly accepted certain amendments pro-
posed jointly by Belgium, Egypt, France, the Xetherlands and
Venezuela to Article 3 of the Statute, which dealt with the member-
ship of the Tribunal (Document 69, .4/1132).230 ST.4TEaIEh.T Bi' TH13 U.S. SECRETARU-GESER:\L (12 III 54)

157.Resolution 351 (IV) establishing the Administrative Tribunal
was adopted by the General Assembly by 48 rotes to iione, with no
abstentioiis (Documerit jg, para. 41). The text of this Resolutioii
will be found in Docunient 70. . .

G. Amendment ofArticle g ofthe Statlrteaf the EighfhSession offhe
GeneralAssembly

158. The Statute of the United Xations Administrative Tribunal.
as adopted by the fourth session of the General Assembly, remained
unchanged at the time that the cases which gave rise to the present
questions were decided. Subsequent to the judgmeiits in these cases,

however, the Secretary-General recommended to the eighth sessioii
of the General Assembly the revision of Article 9 of the Statute as
he considered such revision desirable in the light of experience.
159. The General Assembly i-ecords relatiiig to the amendment

of Article 9 of the Statute of the Administrative Tribunal have not
been iucluded in the Dossier subinitted tothe Court under Article 6j
of its Statute, but are contained in the Background Documents
(Group II), two copies of which have been made available to the

Court. For a brief account of the amendment of Article 9, reference
is made to Background Documents (Group II), Document 20,
A/2533, Report of the Secretary-General on Personnel Policy,
paras. 81-87, and Document 29, A/2615, Report of the Fifth

Committee, paras. 48-53. The tcxt of the amendment to Article 9,
adopted by the General Assembly, is foiind in Background Docu-
ments (Group II), Document 30, General Assembly Resolutioii
782 B (VIII) of 9 December 19j3.

160. Viewsexpressed by representatives of Jlember States during
the discussion of the Secretary-General's Report on Personiiel
Policy in the Fifth Committee will be found in Background Docu-
ments (Group II), Documents 1-18, 4oGth to 422nd and 426th

meetings, 18 November to 7 December 1953. The paragraphs iii
these documents relating to the Administrative Tribunal are giveii
in the list accompanying Background Documents (Group II) '.The
specific consideration of aiid votiug on the revised Article g of the

Statute of the Administrative Tribunal by the Fifth Committee is
contained in Backgrouiid Dociiments (Group II), Document 13,

1 Statements made by the reprcsentatires in the Fifth Committee which are
contained in Background Documents (Group II) and which particularly relate-to
the payment of a\ards of the Administrative Tribunal are as folloivs: Siveden.
Document 2.407th meeting. para. zi ; tinitedStates,Document 2,4ojth meeting.
paras. 35-51 ; Argentina. Document 3. 403th meeting, paras. 34-35; Uruguay.
Document 3. 408th meeting, para. 70 ; Cuba,Document 4,409th meeting. para. 7 ;
Egypt, Document 4. qogth meeting, paras. S and 17: Deninark, Document 4,
409th meeting, para. 50 ;I'oland. Document 5. qrotli meeting, para. 6; France,
Document 5, 410th meeting, para. 22:Czrchoslovaki;i, Doçumcnt 6,qrith meeting,
paru. 54 ;Indonesia. Doculiicii6. qritli meeting, paraGz :Let~anan, Documeiit 7,
412th meeting. para. 57 ; i\uçtralia, DucurnentS.qi3tli meeting, para. 76; India.
Documentg, 414th meeting. para. 6 Tiirkey. Document 9.qi~tli meeting, para.IO. 418th meeting, paras. 1-21. The approval by the General Assembly

of the Resolution containing the revised Article 9 of the Statutc
\vil1be found in Background Documents (Group II),Document 19,
471st Plenary Meeting, 9 December 1953.

161. It is not intended in the following sections to summarize al1
issues which \vere discussed in connection with the establishment of
the United Xations Administrative Tribunal. A summary of the
vieivsexpressed in the Fifth Committee during the foutth session, as
has already been noted, will be found in the Fifth Committee Report
(Document 68, Al1127 and Corr. 1),and a more complete account
is to be found in the summary records. The follo\vingsummary will
be confined to those views which relate to matters ivhich ivere
referred to in the discussion at the eighth session of the General
.Assemblyof the proposal of the Secretary-General for the appro-
priation of funds necessary for the payments of the awards of the

Administrative Tribunal, and which may be of interest in connec-
tion with the questions submitted to the Court.

A. Article IO, paragraph 2-"Final andwzthoz~tczppeal"
162. There \vas little direct discussion of the meaning of the
provision in Article IO, paragraph 2, of the Statute of the Tribunal
that "the judgment shall be final and without appeal". The text
of this paragraph appeared in its present form in the draft statute
originally submitted by the Advisory Committee on a statute for

the United Nations Administrative Tribunal (Document 60, A/986,
Annex III, Article II (2)).In fact, an identical provision will be
found in Article 6 of the Statute of the Administrative Tribunal
of the League of Nations (see Annex 1) and in Articles 60 of the
Statutes of the Permanent Court of International Justice and of
the International Court of Justice. The wording of this paragraph
underwent no change during the course of its consideration by
the General Assembly, and Article IO \vas approved without
discussion of this paragraph by a vote of 32 to none, with I absten-
tion, at the ~~1stmeeting of the Fifth Committee. (Document 58,
paras. 6-7.)

163. Pcrhaps the nearest approach to a discussion of the subject
matter of this paragraph came in the preliminary consideration
of the establishment of the Tribunal at the second part of the first
session of the General Assembly. The representative of Belgium,
at the 25th meeting of the Fifth Committee on 15 November 1946
(Document 41), asked the Rapporteur of the Fifth Committee
whether the dccisions of the Administrative Tribunal would be

final or whether they \\,ould be subject to a revision by the General232 STATElIEYT BY THE U.S.SECRETARY-GESER A1L III54)

Assembly. The Rapporteur (Mr. Aghnides of Greece, who had
served as Chairman of the Advisory Committee on a statute for a
United Nations Administrative Tribunal) replied that, according
to the Draft Statute as prepared by the Advisory Committee, there
conld be no appeal from the judgment of the Administrative
Tribunal. The Advisory Committee feared an adverse effect on the
morale of the staff if an appeal beyond the Administrative Tribunal
delayed the final decision in a case which had already been heard
before organs within the Secretariat created for thqt purpose.

164. Previously the question had been raised before the Sixth
Committee of the Preparatory Commissionasto whether the Admin-
istrative Tribunal or the Secretary-General should have the last
word on disputes submitted to the Tribunal. "The general sense
of the Committee \vas that the Administrative Tribunal was a
Supreme Court and that its decisions were final" (Document 38).

165. The only mention in the fourth session of the General
Assembly of paragraph 2 of Article10 of the Statute came during
the discussion of the preceding article. The representative of Haiti
believed that the provision of Article g, giving the Secretary-
General the right to decide that a decision for specific performance
of an obligation was impossible or inadvisable and to ask the
Tribunal to fix compensation in. lieu thereof was "contradictory

to the second paragraph of Article Io,,as it implied that the Secre-
tary-General would have power to determine the nature of the
Tribunal's decision". (Document 57, Fifth Committee, 216th
meeting, para. 30.) The representative of China agreed that the
phrase "in the opinion of the Secretary-General" in Article g \vas
unfortunate as implying that the Secretary-General could veto
the Tribunal's decision. (Document 57, Fifth Committee, 216th
meeting, para. 31 ; see also statements of the representatives of
Brazil and Poland, Document 57, Fifth Committee, 216th meeting,

paras. I and 20.)
166. On the other hand, the representative of Israel expressed
the view that there was no necessary inconsistency between
.4rticle g (which gave the Sccretary-General a choice between
payinent of compensation and specific performance) and Article 10
(urhich provided that judgmerits of the Tribunal should be final
and without appeal). The "exercise of the option, he said, would

be reflected in the judgment of the Tribunal by the time the
judgment would be rendered, since the Tribunal had no discretion
but \vas bound under Article g to give effect to an exercise of
option properly made. Once the judgment \'as given, it \vas,
therefore, indeed 'final'within the meaning of Article Io, and thus
that Article appeared reconcilable with Article 9." (Document 57,
Fifth Committee, 216th meeting, para. 39 ; see also statements of
representatives of the Secretary-General and of Bclgium, Docu-
ment 57, Fifth Committee, 216th meeting, paras. S and II.) STATE.\IEST BY THE U.S. SECRETARY-GESERAL (12 II154) 233
167. Other statemeiits were made to the effect that the judg-

ments were final, but without discussion of the meaning of the
terrn. (See statements of the Chairman of the Advisory Committee
on Administrative and Budgetarp Matters, Document jz, 5th Com-
inittee, 188th meeting, para. 7j ; Document 53, Fifth Committee,
189th meeting, para. 17.)

B. A~ticle2, #aragrnp/t 3- Tribzdnaldecides competence

165. There was more discussion of paragraph 3 of Article z of
the Statute, which provides that "in the event of a dispute as to
xvhether the Tribunal has competence, the matter shall besettled
by decision of the Tribunal". The text of this paragraph also
appeared in its present form in the original draft submitted by
the Advisory Committee on a statute for a United Nations Adminis-
trative Tribunal (Document 60, A/966, Annes III, Article 2 (3))
and undenvent no alteration during its consideration by the
General Assembly. It likewise usas based on a similar provision in
Article 2,paragraph 4, of the Statute of the Administrative Tribunal
of theLeague of Nations, and similar provisions are found in the

Statutes of the Permanent Court of International Justice (Arti-
cle 36, para. 4) and of the International Court of Justice (Arti-
cle 36, para. 6).
169. During the general discussion of the question of the estab-
lishment of an Administrative Tribunal by the Fifth Committee
at the fourth session of the General .kssembly, the representative
of the Union of Soviet Socialist Republics, in commenting on
Article 2, paragraph 3, stated that the question of the limits of
its competence seemed hardly for the Tribunal itself todecide,

but for the body mhich set it up, narnely the General Assembly.
If necessary, the duty might be delegated to a subsidiary body
such as the Advisory Committee. (Document 53. Fifth Committee,
189th meeting, para. 15.)
'170. The Chairman of the Advisory Committee on Administra-
tive and Budgetary Questions thought that the suggestion that
the Tribunal would not be the proper authority to judge thc limits
of its own competcnce \vas difficult to understand, since even
committees normally established their own rules of procedure and

competence. lloreo\~er, should a claimant declare the Tribunal not
comptent to hear his case, a long delay might result before a
decision could be ohtained from the General Assembly, which in
any case should not he hothered with such details. (Ilocument j3,
Fifth Committee. 189th meeting, para. 16.)
171. During the discussion of Article 2,at the 214th meeting of
the Fifth Committee, on z No\~ember 1949, the representative of
Canada,referring to paragraph 3, remarked that he \vould have pre-
ferred that such decisioiis be taken by the General Assembly rather
than by the Administrative Tribunal. (Document jj, para. 72.)234 STATEMEST Bi'THE U.S. SECRETART-GEXER(A 12LIII54)
The representative of Belgium expressed astonishment at thi~
suggestion: he said that the United Xations had decided to set
up a judicial organ and it \\rould be inconceivable, according to

regular legal procedure, for a political organ to decide on the
competence of a judicial one. In the event of a dispute, it was
undoubtedly for the Administrative Tribunal itself to settle the
question. He pointed out that the Appeals Board-an organ with
less prestige than the proposcd Administrative Tribunal would
have-had been given authority to settle the question of its own
competence in the event of a dispute. (Document 55, para. 73.)
172. At the request of the Chairman, Alr. Feller (Secretariat)
explained that it was an established mle in law that any tribunal

was entitled to settle the question of its cornpetence itself. It was
also an established rule that al1 the organs of the United Nations
should decide on their own competence in the first instance. It
would, therefore, be difficult to reserve that potver to the General
Assembly and, if the Assembly were to \vield it effecti\.ely, its
agenda would be greatly overloaded. (Document 55, para. 74.)
The representative of Sweden said that if the Canadian suggestion
were followed,it would be essential to set up complicated machinery
which had not yet been needed. (Document 55. para. 76,)

173. The Chairman of the Advisory Committee on Administrative
and Budgetary Questions asked the representative of Canada not
to press for the amendment of paragraph 3 which simply applied
a long-established principlc to the particular case of the Adminis-
trative Tribunal. (Document gj, para. 75.) The representative of
Canada agreed not to press his point. (Document 55, para. 77.)
Article 2 was then approved by the Fifth Committee bv 38 votes
to none, with I abstention. (Document 55, para. 82.) -

C. Natzire of the Tribzrnal
174. It \vil1be recalled that during the discussion at the eighth
session of the General Assembly of the Secretary-General's proposal
for the payment of the alvards, considerable attention \vas given
to the question of the nature iofthe Administrative Tribunal. In

the records relating to the establishment of the Tribunal there
are various statements which may be of interest in this regard.
I. Rejerences lo the nalzlre of the Tribunal

(a) Court and jzidicial body
175. The Tribunal was at tinies referred to as a court. Thus the
summary record of the 24th meeting of Committee 6 of the Prepara-

tory Commission of the United Nations, as noted in paragraph
164 supra, states that the geiieral sense of the Committee was
that the Administrative Tribunal \vas a Supreme Court aiid that
its decisions mere final (Document 38). The representative of
Israel, during the fourth session of the General .4ssembly, referred STATEVENT BY THE U.S. SECRETARY-GESERAL (12 III54) 235

to the Tribunal as a "court of appeal" (Document 56, Fifth Com-
mittee, 215th meeting, para. 88). The Chairman of the Advisory
Committee on Administrative and Budgetary Questions referred
to it as a court \\phoseawards xvouldbe final and without appeal.
(Document 53, Fifth Committee, 189th meeting, para. 17.) The
representative of France spoke of "a tribunal responsible for

enforcing the rules of that public service". (Document 59, 255th
plenary meeting of the General Assembly, para. 22.)
176. There wcre also a number of references to the Tribunal
as a "judicial body" (Chairman of the Advisory Committee on
Administrative and Budgetary Questions, Document 51, Fifth

Committee, 187th meeting, para. 48 ;Chairman of. the Staff Com-
mittee, Document 54, Fifth Committee, 190th meeting, para. 21).
or a "judicial organ" (Chairman of the Advisory Committee on
Administrative and Budgetary Questions, Document 52, Fifth
Committee, 188th meeting, para. 75 ; Israel, Document 54, Fifth
Committee, 190th meeting, para. 36 ; Belgium, Document 55,
Fifth Committee, 214th meeting, para. 73, and Document 56,
Fifth Committee, 215th meeting, para. 78 ;Netherlands, Document

55, Fifth Committee, 214th meeting, para., 120 ; Norway, Document
56, Fifth Committee, 215th meeting, para. 22. See also Document
68, Al1127 and Corr. 1, Report of the Fifth Committee, para. IO
(vi)). There were other references to the Tribunal as a legal body
(see statement of the representative of Belgium at the First Part
of the Third Session of the General Assembly, Document 47, Fifth
Committee. 159th meeting). The representatives of lsrael and the
Netherlands referred to the legal character of the Tribunal during
the Fourth Session of the General Assembly (Document 55, Fifth

Committee, 214th meeting, paras. 34 and 38).

(6) Adnrinistrativeorgan

177. On the other hand, the representative of Poland, during thc
fourth session of the General Assembly, stated that the Adminis-
trative Tribunal woiild be "an administrative and not n judicial
organ". (Document 55, Fifth Committee, 214th meeting, para. 131.)
The administrative character of the Tribunal was also stressed by
the representative of the United States, who proposed that in the
choice of members of the Tribunal, administrative training and
esperience should be recognized on a par with legal training and

esperience and judicial service. (Document 64, A/C.j/L.4/Rev.z,
United States ameiidments to Article 3 ; Document 55, Fifth Com-
mittee, ~14th meeting, para. 122.) This proposed amendment \\.as
\i.ithdra\vn on the understanding that it would be mentioned in the
Report of the Fifth Committee. (Document 56, Fifth Committee,
215th meeting, paras. 9 and IO ; Document 68, AI1127 and Corr. 1,
para. IO (iii).)236 STATEZIEST BY THE U.S. SECRETARY-GESERAI. (12III54)

(c)Intpartial body
178. A number of references were made ta the Administrative
Tribunal as an "impartial bodg" or "impartial authority" (United
K/ngdom, Second Part of First. Session, Document 41, Fifth Com-
mittee, 25th meeting; Chairrnan of the Advisory Comrnittee on
Administrative and Budgctary Questions, Fourth Session, Docu-

ment 51, Fifth Committee, 187th nieeting, para. 48 ;Chairman of
the Staff Committee,Document 54, Fifth Committee, 190th meeting,
para. 12 ; France, Document 59, 255th Plenary Xleeting of the
General Assembly, para. 19).

(d) Independence
179. A number of references \rreremade to the "independence"
of the Tribunal during the discussion at the fourth session of the
General Assembly. The representative of the Netherlands (Docu-
ment 55, Fifth Committee, zr.{th meeting, para. 120) stated that
the "Adniinistrative Tribunal would be a judicial organ and should
be independent of both the Secretariat and the Assernbly" (seealso

statement of the representativa of the Netherlands, Document 52,
Fiith Committee, 186th meeting, para. 46). The representative of
Belgium stated that once it was established, the Administrative
Tribunal became independent of the General .Assembly.(Document
56, Fifth Committee, 215th meeting, para. 19 ; see also statement
of the representative of Belgium, Document 57, Fifth Committee,
216th meeting, para. 9.)
180. The Chairman of the Advisory Committee on Administra-
tive and Budgetary Questions (Document j6, Fifth Cornmittee,

215th meeting, para. 15) statecl that the Tribunal would be "com-
pletely independent of the Secretary-General", and the representa-
tives of Poland (Document 53, Fifth Committee, 189th meeting,
para. 41) and Brazil (ibid., para. 43) referred to it respectively as
"an independent body" and "an independent organ".
181. The independence of the Tribunal \vas particularly men-
tioned during the discussion of the paragraphs of Article 3 dealing
with the appointment and the removal of the members of the
Tribunal. With respect to the appointments, the Fifth Committee

discussed whether the members should be appointed by the Inter-
iiational Court of Justice or by the General Assembly. The Fifth
Committee decided in favoiir of appointment by the General Assem-
bly and approved the paragraph in question (paragraph z of Arti-
cle 3) by 34 votes to none, with 7 abstentions. (Document 56,
Fifth Committee, 215th meeting, paras. 6-10.)
182. \Vith respect ta the question of removal of members, the
Fifth Committee considered \rhether the right of removal should
rest with the Tribunal itself or with the General Assembly. An

amendment proposed by the United States to provide that the
'dismissal of a member of the Tribunal could take place only on STATEhlENT BY THE U.S. SECRETARY-GESERAL (12 III54) 237

a t\\.o-thirds majority vote of the General Assembly was accepted
by the Committee. by 16 votes to 14, with II abstentions. (Docu-
ment 56, Fifth Committee, 215th nieeting, paras. 18-24.) Ho\vever,
ail amendment proposed jointly by the representatives of Belgium,
Egypt, France, Netherlands and Venezuela, was adopted by the
General Assembly at its 255th plenary meeting (13ocument 59,
para. 4o), which provided that no member of the Tribunal could

be dismissed by the General Assembly unless thc other members
were of the unanimous opinion that he was unsuited for further
service. (Document 69, A/II~z.)
183. Alço, with reference to the indepcndence of the Tribunal, it
may be noted that, in discussing Article 6 of the Statute which
concerned Rules of Procedure, it was pointed out by the Chairman

of the Advisory Committee on Administrative and Budgetary Ques-
tions that the Tribunal would establish its rules without having to
submit them for approyal to any organ of the United Nations.
(l>ocurnent 56, Fifth Committee, 215th meeting, para. 29.)

(e) Otherreferencesto nati~reof ï'ribz~nal
184. The following characterizations of the Tribunal may also be
noted. The Chairman of the Advisory Committee on Administrative
and Budgetary Questions referred to it as an "august'body". (Docu-
ment 53, Fifth Committee, 189th meeting, para. 17.) The repre-

sentative of Sweden referred to it as "a special kind of organ".
(Document 55, Fifth Committee, 214th meeting, para. 126.) The
representative of Poland, at the 214th meeting of the Fifth Com-
mittcc, in comparing the Tribunal to the Appeals Board, referred
to it as a "superior organ" (Document 55, para. 56), but at the
259th plenary meeting of the General Assembly; in speaking of the
Tribunal alid the Assembly, he referred to itas a"subsidiary organ".
(Document 59, para. 35.) The representative of the Union of Soviet
Socialist Kepublics referred to the Administrative Tribunal as an
"auxiliary organ set up by the General Assembly" (Document 55,
Fifth Committee, 114th meeting, para. 123) and as a "subsidian

organ of the United Nations". (Document 56, Fifth Committee,
215th meeting, para. 44.)
2. Decisions concerning titles

185. With reference to the question of the nature of the
Tribunal, certain decisions concerning the names to be applied
to the Tribunal, to its members and to its executive secretary,
may be noted.

186. As early as the discussion of the subject in the Preparatory
Commission of the United Nations, the Sixth Committee of that
Commission referred to the question of the name to be given to
the organ to be established. "It -arasrecognized that the title
'Administrative Tribunal' might give rise to misapprehension as238 ST:\TE>lEST BY THE U.I. SECRET.4RY-GESERAL (12 IIIj4)

to the scope of its functions, but itwas made quite clear that the
Tribunal would deal only vith questions of the interpretation
of an official's contract and with the claims of officiais for non-
observance of the contract, and not with matters of internal
administration which would go before internal bodies within the
Secretariat and in which the Secretary-General's decision would
be final." (Ilocument 38.)
187. Iluring the consideration in the fourth session of the

General Assembly, the representative of the Union of Soviet
Socialist Republics proposed that the name of the body should
be more closely related to its function:he said that an Administra-
tive Tribunal might be thooght to be essentially concerned with
disciplinary matters, yet the draft statute made no provision
for the Tribunal to deal with disciplinary cases. Some name such
as "The Administrative Board (or committee) to consider claims
by staff members" or "Complaints Committee", he believed, would
more accurately reflect the structure and competence of the
proposed body. The word "Tribunal", he thought, waç inappro-
priate and some less pretentious word should be used. (Document 53,
Fifth Committec, 189th meeting, para. 13.)

188. The representative of Israel thought that the very name
"Administrative Tribunal" was unfortunate. He thought the
Tribunal should be a purely judicial organ. (Document 54, Fifth
Committee, 190th meeting, para. 36.)
189. At the 214th meeting of the Fifth Committee, when con-
sideration of individual articles of the Statute was begun, the
representative of the Union of Soviet Socialist Republics recalled
the reasons why he had proposed that the title of the draft statute
should be amended. The question of an Administrative Tribunal

did not arise in the Charter, and such a title was too ambitious.
In some countries the Administrative Tribunal had to be competent
to take disciplinary steps. The aim of the Union of Soviet Socialist
Republics' proposal was to avoid ambiguity. (Document 55,
para. 33.)
190. Fnllowing a vote, at which the Union of Soviet Socialist
Republics' amendment proposing that the title "Administrative
Tribunal" should be replaced by "Staff Claims Board" had been
rejected by 19votes to j,with 13abstentions, and the title "United
Xations Administrative Tribunal" approved by 32 votes to none,
with 3 abstentions, the representative of Israel explained that

he had abstained in both votes because he felt it would be wrong
to describe as an Administrative Tribunal a body which his dele-
gation regarded as being essentially legal in character. (Docu-
ment j5. Fifth Committee, 214th meeting, para. 34.)
191. The representative of the Netherlands proposed that
members of the Administrative Tribunal should be referred to
as " Judges" and not as "hlemhers". This amendment was rejected ST.ATE\IEST Bi' THE U.S. SECRETARY-GESERA (L2 II154) 239

by 22 votes to 9, with 7 abstentions. (Document jj, Fifth Com-
mittee, 214th mccting, paras. 113-115.) The cornpanion proposal
by the represeiitative of the Xetherlands to replace the words
"Esecutive Secretary" by the word "Registrar" was rejected by
17 votes to 9, with Sabstentions. (Document 56, Fifth Committee,
zrjth meeting, para. 13.)

D. Separalioiz of poioers

192. .A few refcrences were made to the concept of separation
of powers. During the second part of the first session of the General
Assembly, the representative of France emphasized that "neither
the General Assembly, which was an organ of control, nor the
Secretariat, \vhich \\,as an organ of action, could perform judicial
functions. The .Adrniiiistrative Tribunal would, on the other hand,
have no esecutive powers. but would confine itself to intcrprctation
of regulations or contracts in the making of which it had no part.
Thc governments of many nations, including that of the United
States of America, were based on the principle of separation of
powers." (Document 41, Fifth Committee, 25th meeting.)

193. During the fourth session of the General Assembly, the
Chairman of the Advisory Committee on Administrative and
Budgetary Questions stated, in reference to the Administrative
Tribunal of the League of Xations, that the principle of separation
of powers had been very strictly applied. (Document 51, Fifth
Committee, 217th meeting, para. 48.)
194. At the time that the Fifth Committee discussed, and
decided to delete, paragraph 5 of Article z, which would have
authorized the Tribunal to give advisory opinions, reference was

made to the desire that the principle of the division of powers
be applied so that the administration \vould remain entirely
independent of the Administrative Tribunal. (See Statement of
the representative of Swedcn, Document 55, Fifth Committee,
214th meeting, para. 70.)

E. Admilzistrati?ieand bzidgetarypowers ofthe GeneralAssembly
195. With respect tothe subject ofthe administrativeand budget-.
ary powers of the General Assembly, another point which !was
discussed at lcngth at the eighth session, the following statements.
may be of interest.

196. The United States proposed, at the second part of the first
session of the General Assembly, that an Administrative Tribunal
should not be established. The establishment of such a tribunal, it
believed, might impinge on the final authority over administrative
matters \\,hich the Charter granted to the General Assembly. (Docu-
ment 45, A/C.j/j6, para. 4.) At the 25th meeting of the Fifth Com-
mittee (Document 41), the representative of the United States said
that an Administrative Tribunal would dangerously undermine the240 STATE~IEST BY THE U.S. SECHET.~RY-GESERAL (12 111 54)

authority of the Secretary-General and the sovereignty of the
General Assembly. The representative of France, at the same meet-
ing, however, said it was important to have a tribunal to guard a
sovereign institution from the ever present danger of abusing its

sovereignty. It was the duty of the United Nations to sct an example
of willingness to accept such a check on its sovereignty.
197. At the fourth session of the General Assembly, a few repre-
sentatives expressed fears that the statute of the Administrative
Tribunal had been drawn up in such a \rray as to curtail the nghts

of the General Assembly. (Union of South Africa, Canada, Docu-
ment gj, Fifth Committee, 214th meeting, paras. 37 and 39.) The
representative of the United Kingdom stated that the sovereign
rights of the General Assembly, particularly in connection with staff
employment and emergencies or conditions of exceptional difficulty,
did not seem adequately safeguarded, in view of the wide financial
powers to be invested in the Tribunal. (Document 53, Fifth Com-
mittce, 189th meeting, para. 33.)

198. The representati\,e of Uruguay pointed out that if a staff
member succeeded in an action before the Administrative Tribunal
against the decision of the Secretary-General, if was the United
Nations which would have to bear the charge. (Document 56, Fifth
Committee, 215th meeting. para. 72.)

199: There was some discussion of the budgetary powers of the
General Assembly in connection with the question of compensation
at the time that Article g '\\,as considered by the Fifth Committee.
The discussion .related particularly to the qiiestion whether the
Secretary-General should have the option of paying compensation
in lieu of rescission or specific performance. (SeeDocument 56, Fifth
Committee, 215th meeting, paras. 104-116, and Document 57, Fifth

Committee, 216th meeting, paras. 1-70.)
200. The text proposed by the Advisory Committee on a Statute
for a United Nations Administrative Tribunal provided that, if the
rescinding of a decision or specilic performance of an obligation \\.as
impossible or inadvisable, the Tribunal should order the payment of
compensation. It did not, however, specify who would determine

whether such rescinding or spei:ific performance was impossible or
inadvisable. In submitting a draft statute to the fourth session of
the General Assembly the Secretary-General explained his proposed
change in this article as follo\\rs:
" ...it has been made clear that the Secretary-Generalshould decide
whether it is impossibleor inadvisable to rescind a previousdecision
or invoke a specificperformance. This should be an administrative
and not a judicial decision :besides, only the Secretary-General is
in a positionto make such a decision.1Vherethe Secretary-General's
decisionisin the affirmative,i:ompensationfor the injuries sustained

1Article9 ofthe Statuteasadopted was based on Article rooftheprelirninary
dralts. (Documents60, 63,64.) STATEMEXT BY THE U.S. SECRETARY-GENERAL (12 III54) 241

shall, of course, be fixed by the Tribunal and paid by the United
Nations." (Document60, A/986,para. 5.)

201. The test proposed by the Secretary-General with a minor
amendment accepted by him was approved by the Fifth Committee
by 29 votes to 4 with 8 abstentions. (Dociiment 57, 216th meeting,
para. 70.)

202. Thestatement of the representative of Brazil may be noted,
to the effect that such a right of the Secretary-General "\vould
constitute an added financial burden on the United Nations, which
would then have to make provision for such compensation in cases
where the Secretary-General disagreed with the Administrative
Tribunal's findings". (Document 57, Fifth Committee, 216th meet-

ing, para. 3.) The statement of the representative of Poland may
also be iioted that "as a member of the Adniinistrative and Budget-
ary Committee, he would not be prepared to approve any appro-
priations for such piirposes". (Document 57, Fifth Committee.
216th meeting, paras. 19 and 20.)

203. The representative of Xorxvaysaid that "the United Nations
\vas making its first attempt to introduce the system of an Adminis-
trative Tribunal, and if esperience sho~vedthat the Budget required
more careful safeguards in connection xvith compensation, action
could be taken by the General Assembly '". (Document 57. Fifth

Committee, 216th meeting, para. 36.)
204. With respect to the question of the size of awards, the repre-
seiitative of the Secretary-General, Mr. Feller, recalled that he had

been asked by the Canadian representative to explain the phrase
"compensation for injury sustained" because the representative of
Canada had been concerned over the possibility that the Adminis-
trative Tribunal might be able to give very large monetary awards.
Mr. Feller stated that the phrase had been deliberately chosen by
those \\,ho had drafted the article in order to make the arvard com-
pensatory, and the Administrative Tribunal \vould have no latitude

to grant punitive damages. He believed that an amendment sug-
gested by Uruguay to replace the word "compensatioii" by "indem-
nity" woiild make rather vague the standard according to which
domages should he awarded by the Tribrinal and might open the
way for the Tribunal to give much larger awards thaii the members
of the General Assembly would wish it to give. (Document 57. Fifth
Committee, 216th meeting, para. 50.)

1 The rïpresentitivof Colombia comriiented un this statement during tlir.
Assembly's fourth session (216th meeting) the Sorwegian representativc in the
Fifth Committee had said that the General Assembly should gire a decision in
any casein \vhicli awards made by the Tribunal Iind important financial iinpliczi-
tions : tliis remark referrcd to decisions the General i%.oultalir in the
futurc." (iloci~mez.Fifth Corninittee. 4zist iiiectinp46.)ra.

= 7F. 1946 decision O/ theAssembly of the Leagzdeof Nations

205. Another point which may be noted is the reference made
by the United States Delegation during the second part of the
first session of theGeiieral Asscinbly (Document 45, A/C.5/56) to the
decision taken by the Assembly of the League of Nations at its
last meeting in 1946. (See Part Tw of this Statement.) In proposing
that an Administrative Tribunal should not he set up, the United

States memorandum stated tliat the League Assembly had set
aside certain awards of its Administrative Tribunal on the following
grounds :
"(n) The Assembly\vas sovereign vis-à-a tiestribunal since the
tribunal was not competent to consider the legality of acts which
were within the authority of the Assembly ;
(b) The Assemblyitself was the best judgc of what its intentions
were in adopting resolutions. It should be noted in this connection
that at itswenty-iiinth generalconference,the International Labour
Officeadded an article (Article...)o the statute of its tribunal uro-
vidingtliat ai,y disl>i;ijtu tli~~coriip~~tciicoef trihiinal rorcidcr
a decisioninvol\,ing,aiiacti~n takeii btlieC;rner;ilConfrrcnce311;111
be siibrnitted for adiiidic;itiuiib\, tlie Iiitcriiational C"urt of lujtic~.
whosedecisionshali be final."

G. Cornfietence of the Tribznzal
206. As \srasnoted in Part One of this statement, considerable
disctission occurred at the eighth session of the General Assembly
concerning the competence of the Tribunal with respect to possible
grounds on which the General Assembly might refuse to give

effect to its awards. Special attention was given by some representa-
tives, in discussing specific cases, to the competence or lack of
competence of the Tribunal to consider the subject of disciplinary
action.
207: This same question was also a subject to which frequent
reference was made during the consideration of the establishment
of the Administrative Tribunal. The Report of the Preparatory
Commission (Document 33, PC/zo) had recommended that the
Administrative Tribunal should be competent to adjudicate on

any dispute arising in connectic~nwith the fulfilment of an official's
contract. In the discussion in the Sixth Committee of the Pre-
paratory Commission, "it was made quite clear that the Tribunal
would deal only \i,ith questions of the interprctation of an official's
contract and with the claims of officials for non-observance of
the contract, and not with inatters of internal administration
which would go before internal bodies within the Secretariat and
in which the Secretary-General's decision would be final". (Docu-
ment 38.)
208. The Advisory Committee on a statute for a United Nations

Administrative Tribunal \vas giiided by this indication in preparing STATEAIEKT BY THE U.N. SECRETARY-GENERAL (12 III54) 243

its draft Statute. (Document 60, A/986, Annex III, Report of
the Committee, para. 4. See also statemeuts of the Rapporteur
(Mr. Aghnides of Greece) and the representative of the Union
of Soviet Socialist Republics at the first part of the first session,
Document 41, Fifth Committee, 25th meeting.)

209. The Secretary-General, in his Report to the fourth session
of the General Assembly in 1949 (Document 60, A/986, para. 7),
recalled the position of the Preparatory Commission and of the
Advisory Committee on a statute for a United Nations Admin-
istrative Tribunal, and added :
"In this connection there are three areas of decisionin which the
Secretary-Generai's judgment should be final-namely, a decision
as to whether a pkrticular staffmember's servicesare satisfactoryor
unsatisfactory, thedecisionof fact in disciplinary cases wherenon-
observance of the terms of the staff member'sappointment cannot
reasonably be alleged, and decisionsof fact in cases ofenous mis-
conduct. The authority of the Secretary-Generalto decidethe facts
in these three areas is made clear in provisional staff regulations
19 and 21. His responsibility under the Charter as ChiefAdminis-
trative Officerof the Organizationcan be satisfactonly discharged
only if his judgment on the facts in the cases indicated above is
consideredfinal.This responsihilitycouldnot beeffectivelydischarg-
ed if an independent administrative tribunal were given authonty
to reconsider the facts inuch cases, in the absence of any reason-
able allegation that the terms of an appointment had heen violated,
and to reverse thedecisionof the Secretary-General."

2x0. The Staff Committee, on the other hand, proposed that
the Tribunal should be given specific competence "to hear and

Sed to ~rticle'z; see also Document 60, ~1986, Annex ~~,'~a;as.
4-8; Document 61, A/g86/Add.1 and Document 54, Fifth Com-

mittee, 190th meeting, paras. 13-17.) This proposal, however,
u7aswithdrawn after a revised text of Staff Regulation 23, accept-
able to the Staff Committee, concerning joint administrative
machinery with staff participation, had been proposed by the
Secretary-General. (Document 64, A/C.~/L.~/R~V.~,paras. Iand
z. See revised text of Staff Regulation 23 on final page of Docu-
ment 64.)

211. The World Health Organization submitted a memorandum
(Document 67, A/C.s/L.zr) stating that since Article z of the
draft statute placed disputes arising aut of disciplinary action
outside the competence of the Tribunal, WHO would finddifficulty
in making use of the Tribunal. This memorandum was noted by the
Fifth Committee at its 215th meeting. (Document 56, paras. 3-5.)

212. The following. statements made during the discussion in
the Fifth Committee at the fourth session of the General Assembly
are of interest on the subject of competence in disciplinary matters :244 STATEYEST BY THE U.K. SECRETARY-GENERAL (12 11154)

Belgium (Document 52, 188th meeting, para. 20 ;Document 53,
189th meeting, para. 22) ; Netherlands (Document jz, 188th meet-
ing, para. 47 ; Yugoslavia (Ilocurnent 53, 189th meeting, para. 8) ;
exchange of questions and ariswers between the representative
of the United States and the representative of the Secretary-
General (Document 53, 189th meeting, paras. 26-29) ; United
Kingdom (Document 53, 189th meeting, paras. 35-36) ; Brazil

'(Document 53, 189th meeting, para. 43) ; France (Document 53,
189th meeting, para. 45) ; Secretariat (Document 53, 189th meet-
ing, paras. 46-47) ; United States (Document 55. 214th meeting,
paras. 23-26). Other statements of interest concerning the authority
of the Secretary-General may also be noted as follows : Union
of Soviet Socialist Republics (Document 56. Fifth Committee,
215th meeting, para. 67) ;Chairrnan of the Advisory Committee
on Administrative and Bud~etary Questions (Document 56,
215th meeting, para. 69) ;and Union of South Africa (Document56,

215th meeting, para. 76).
213. During the specific 'onsideration of Article 2 urhich
concerned the competence of the Tribunal (Document 55, Fifth
Committee, 214th meeting, paras. 36-83), the subject of com-
petence with respect to disciplinary action was not mentioned,

the Staff Committee amendment on the subject already having
been withdrawn. The disciission at this time concerned the points
which were decided by the Fifth Committee as follows : (1) The
Tribunal shoiild not bc competent to deal with applications where
the cause of complaint arose prior to I January 1950 ; (2) The
Tribunal should not have competence with respect to members
of the staff of the Registry of the International Court of Justice ;
(3) The Tribunal should iiot be competent to give advisory opinions,
and (4) Disputes coiicerning \vliether the Tribunal had competence
should be settled by decisioii of the Tribunal. (On this last point

see paras. 168-173 above.)
214. Article 2 as amended \\.:~sapproved bp the Fifth Committee
at its214th meeting by 38 votes to none with I abstention. (1)ocii-
ment gj, para. 82.) In its Report (Document 68, A/IIz~, and
Corr. I, para. g), theFifth Cominittee made the following comment:

"lu connectionwith Article z, asamended, twopoints weremade
in the courseofthe disciissioiiregardingthe Tribunal'scompetence :
(a) That the Tribunal wouldnot have jurisdictioriiii disciplinary
cases unless such cases came within the terms of paragraph I of
Articlez ;and
(b) That the tribunal would have to respect the authority of tlie
General Assemblyto make such alterations and adjustments in the
staff regulations as circiimstances might require. It was iinderstood
that the Tribunal wouldbear in mind the General Assembly's intent
not to alla\\. the creation of any such acquired rights as would
frustrate measureswhichthe Assemblyconsiderednecessary. It was
iinderstood also that tlie Secretary-General would retnin freedom STATEYEXT BY THE U.N. SECRETARY-GENERAL (12 111 54) 245

to adjust er dien rates as a result, for example, ofcurrency devaln-
ations or tor other valid reasons.
No objection was voiced in the Committee to those interpreta-
tions, subject to the representative of Belgium expressing the view

that the text of the statute would be authoritative,and that it
would be for the Tribunal to make its own interpretations."

12 March 1954.

ANNEXES

Aizizen I

STATUTE AND RULES OF COURT OF THE ADMIXISTRATIVE
TRIBUNAL OF THE LEAGUE OF NATIONS '

[Nol reproduced]

Annen 2

REPORT SUBMITTED TO THE FOUKTH COAIMITTEE
OF THE ASSEMBLYRY THE SUB-COMMITTEEON THE

ADMINISTRATIVE TRIBUNAL a

[Nol reprodticed]

APPOINTAIENT OF SUB-COAfhlITTEESON COXTRIBUTIONS I'N
ARREARS AND ON THE ADMINISTRATIVE TRIBUNAL

[Nol reproduced]

' bague of Xations-Oficial Journal. 9thYenr. 90.5. Xlay1928, pp. 751-756.-
Statute and Rules of Courtufthe AdministrativeTribunal of the Leagueof Nations
(1'. A.4).
League of Xations-OfficialJournal. Special Supplement So.58, pp.250-257.-
Kecords of the Eighth Ordinary Session of the Açsemhly. Report submitted to
the Fourth Cornmittee of the Assembly by the Sub-Cornmittee on the Adminis-
trative Tribunal.(A.IV/5.r927.)
I.eague of Sations-Oficial Journal. Spccial Supplement So. 58, p. LI.-
Records of the Eighth Ordinary Session ofthe .Assernhly. Alinutes of the Fourth
Comrnittee (Budget and Financial Questions), Second Aleeting.12Septernber 1927
(extract).246 STATEAIEST BS THE u.N SIICRETARY-GESERAL (12 IIIj4)

Anxex 4

ESTABLISHRIENT OF AN ADMINISTRATIVE TRIBUNAL1
[Nol reprodzrced]

Aiinex 5

ESTABLISH&IEXT OF AN ADMINISTRATIVE TRIBUXAL
[Not reproduced]

ESTABLISHRIEXT OF AN ADRIINISTRATIVE TRIBUXAL :
REPORT OF THE FOURTH COMMITTEE : RESOLUTION

[Not reproducedj

NOTE BY THE ACTINGSECR13TAR\'-GENERALOX THE JUDG-
MENTS PRONOUNCED BY THE ADRfINISTRATIVE TRIBUXAL
ON FEBRUARY 26th, 1946, CONCERNING CERTAIN OEFICIALS

DISCHARGED IN APPLIC.4TIOX OF THE EMERGENCY
MEASURES ADOPTED BY THE 1939 ASSEMBLY

(A. 16. 1946). 22 hfARCH 1946~
[Nol reproduced]

' League ofNations-Official Journ:il, Special SupplementNo. jS, pp. 35.30.-
Records of the Eiglith Ordinary Session of the Assernbly. hlinutes ofthe Fourtli
Cammittee (Budget and Financial Qui:stioiis), Fiftli Meeti17,Septernber1927
(extract).
LeagueofSationsOfficial Jouriial,Special Suppleinent Xo. 54, p. 475.-
Records of the Eighth Ordinary Session of the Assernbly. Establishmentof an
Administrative Tribunal. Report of the Fourth Coinmittee to the Assernbly.
(A. 7'. '927.\'.)
League ofSations-Official Journal. Special SupplernentSo. 54, p. ?or.-
Records of the Eighth Ordinary Session of the Assernbly. Plenary Meetings.
Twenty-first Plenary Meeting. 26 September 1927 (extract).
< League ofXations-Official Jouriial.Special SupplernentSo. 194. pp. 745-
249.-Reci~rtlsof the Twentieth (Conclusion) and Txrenty-FirsOrdinary Sessions
of the Ass<?rnbly. STATEMEKT BY THE U.N. SECRETARY-GENERAL (12 II1 j4)
247

Annex 8

JUDGMENTS PRONOUNCED BY THE ADMINISTRATIVE
TRIBUNAL ON FEBRUARY 26th, 1946, CONCERNING

CERTAIN OFFICIALS DISCHARGED IN APPLICATION OFTHE
EMERGENCY MEASURES ADOPTED BY THE 1939ASSEMBLY '

[Not reproduced]

Annex 9

ADMINISTRATIVE TRIBUNAL : JUDGMENTS GIVEN ON

FEBRUARY 26th. 1946,WITH REGARD TO CLAIMS
OF CERTAIN FORMER OFFICIALS '

[Not reproduced]

Annex IO

JUDGMENTS PRONOUXCED BY THE ADMINISTRATIVE

TRIBUNAL ON FEBRUARY 26th. 1946, CONCERNING
CERTAIN OFFICIALS DISCHARGED IN APPLICtlTION

OF THE EMERGENCY MEASURES ADOPTED BY THE
ASSEMBLY IN 1939 3

[Not reproduced]

League of rations-Ofhcial Journal, Special Supplernent No. 194. p. 162.-
Records of the Twentieth (Conclusion) and Twenty-First Ordinary Sessions of
the Assenib1y.-Report of the supervisory commissionon the work of its Ninety-
Sinth Session (A. 14.1946.X).2? hlarch 1946 (extract).
League of Nations-OfticialJournal, Special SupplernentXo. 194, p. 123.-
Records of the Twentieth (Conclusion/ and Twenty-Rrst Ordinary Sessionosf the
Assembly. Minutes of the Second (Finance) Cornmittee, Third Meeting,Ir April
1946 (extract).
League of Nations-OfficialJournal, SpGial Supplernent No. 194, pp. 261-
264.-Records of the Twentieth (Conclusion) and Twenty-FirstOrdinary Sessions
of the Açsernbly.Financial and Administrative Questions: General Report of
the Second (Finance) Cornmittee to the Assembly (A.(1).r946. X.), 18Aprilrgq6.
approved by the Açsernbly on18 April rg46. Kapporteur:Madame C. A. Kluy~er
(Nctlicrlands)(extract).248 STATE31ENT BY THE ULN. SECRETARY-GENERAL (12 III 54)

ADMINISTRATIVE TRIBUNAL :JUDGMENTS GIVEN ON
FEBRUARY z6th, 1946, WITH REGARD TO CLAIMS OF
CERTAIN FORMER OFFICIALS (CONTINUATION) : REPORT

OF THE SUB-COMMITTEE TO THE SECOND COMMITTEE '

[Nat reproduced]

SEVENTH PLENARY NEETING OF THE ASSEMBLY,

18 APRIL 1946 (EXTRACT)

[Nol reproducedl

' League of Nations-Official Journal, Special Supplement So. 194, pp. 130-
133.-Records of the Twentieth (Con<:lusion) and Twenty-First Ordinary Sessions
of the Assembly. Minutes of the Second (Finance] Cammittee. Sixth Meeting,
.
13 April 1946 (&tract).
a League of Nations-Official Journal. Special Supplement No. i94, p. 61.-
Records of the Twentieth (Conclusion) aiid Twenty-First Ordinary Sessions of
thc .\sçembly. II. WRITTEN STATEMENT OF THE GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES

New York, II March 1954.

Sir :
1 have the honor to refer to your communication of 14 Janu-

ary 1954, addressed to the Secretary of Foreign Affairs of the
Republic of the Philippines, in which you invite my Government
to avail itself of the right,nder Article 66 of the Statute of the
International Court of Justice, to present a written statement on
the case, entitled "Effect ofawards of compensation made by the
United Nations Administrative Tribunal". In compliance with said
communication, 1am instructed by my Government to submit the
following statement.

The facts and the issue.-By a Resolution adopted on 9 1)ecenl-
ber 1953, in connection with the case of eleven staff mernbers of
the United Nations whose appointments were terminated in 1953,
and in whose favor the Administrative Tribunal had ordered
awards of compensation, the General Assembly, having in mind
what it regarded as "important legal questions" with respect to
the appropriation of funds to satisfy the awards, decided to request
the International Court of Justice to give an advisory opinion'on
the following questions :

I.Having regard to the Statute of the United Nations Adminis-
trative Tribunal and to any other relevant instruments and to the
relevant records,hasthe GeneralAssembly the righton any grounds
to refuse to give effectto an award of compensation madehy that
Tribunal in favor of a staff member of the United Nations whose
contract of service has been terminated without his asse?t
2.If the answer given by the Court to question (1) is in the
affirmative, what are the principal grounds upon which the General
Assemblycould lawfully exercise such a right?

From the construction of the first question, it is reasonable to
assume that the General Assembly attaches, and rightly, more
than ordinary importance to the Statute of the Administrative
Tribunal. Four questions arise from the fact that this Statute,
which is of the Assembly's own making, remains valid and in
force :

First, how consistently can the Assembly revoke or ignore a
decision based on one of the Statute's main provisions ?
Second, in a case where the Secretary-General should find
separation with compensation to be in the best interest of the250 STATEAIEST OF THE GOVERSAIEST OF THE PHILIPPIKES (IIIIIj4)
United Nations, must he reinstate the staff member concerned

rather than see him denied the benefit of a remedy widely
accepted in private law ?
Third, what further use would staff members have for the
Administrative Tribunal itsi:lf if the remedy of compensation
provided in the Statute is rendered nugatory ?
Fourth, considering that one of the aims of the Tribunal is
ostensibly to substitute for the diplomatic protection of staff
members by the States of which they are nationals, would the
United Nations be in a position to have that protection invoked
in al1cases of redress of grievances ?

Contrnctual relationsltifi betuieen the Urtited Nations and staf
meinbers.-As early as 1945, in San Francisco, the Preparatory

Commission and, later, the General Assembly, at its first session
in 1946, recognized the desirability of a contractual basis upon
ahich the United Xations Organization on the one hand, and its
staff members on the other, could carry out the aims of the Organi-
zation. Thus the Commission recommended to the Assembly that
an Administrative Tribunal be established "to adjudicate on any
dispute arising in connection with the fulfilment of an official's
contract" (Report of the Preparatory Commission, par. 74, p. 94).
The Secretary-General forthwith was requested by the Assembly
to appoint a committee to dr:~ft a statute for an administrative

tribunal.
On 13 Febmary 1946, the Assembly adopted Resolution 13 (I),
together with the Provisional Staff Regulations attached thereto.
By the same Resolution, the Assembly transmitted to the Secre-
tary-General for his consideration the draft Provisional Staff
Rules drawn up by the Commission to amplify the Regulations.
The Rules were approved and promulgated by the Secretary-
General on 9 illarch 1946 (Doc. SGB/3).
Rule 2 of the Staff Rules prcivided that, upon appointment, the
staff member should receive a letter of appointment signed by the
Secretary-General or his authorized deputy, and that the appointee

should in turn write a letter of acceptance addressed to the Secre-
tary-General. Furthermore, it nas specified that "the letter of
appointment and the letter of acceptance shall constitute the
contract of employment". Since then the Regulations as well as
the Rules have formed part of the terms of appointment of every
staff member. The Regulatioris, adopted by General Assembly
Resolution 590 (V) on 2 Febriiary 1952, have been amended by
Resolution 781A (VIII) and Resolution 782 (VIII).
A clear contractual relationship was thus established between
the United Rations and the staff meml)ers of its Secretariat by
virtue of which the rights of the latter may not be altered without
their consent. STATEhlEXT OF THE GOVERSXENT OF THE PHILIPPISES (II11154) 251

The busis of the compensation right.-The authority to pay
compensation stems from the provisioiis of Article9 of the Statiite
of the Tribunal, in its original as well as in its amended text. The
Article provides that, when au application iç well founded, the
Tribunal ma? rescind a decision or order the specific performance
of the obligation invoked, and that, should the Secretary-General,
within thirty days of the notification of the judgment, decide, in
the interest of the United Nations, that the applicant should be
compensated without further action being taken in his case, the
Tribunal shall fix the amount of compensation for the injury
sustained by the applicant. The Article further provides that "in
au applicable cases, compensation shall be fixed by the Tribunal

and paid by the United Nations or, as appropriate, by the special-
ized agency participating under Article rz".
On the other hand, Regulation 9.1 (a) of the Staff Regulatioris
gives to staff members the right to contest a termination order of
a permanent appointmeiit by the Secretary-General. In addition,
Regulation 11.2 explicitly States that the Tribunal "shall, under
conditions prescribed. in its Statute, hear and pas judgment upon
applications from staff members alleging non-observance of their
terms of appointment, including al1 pertinent regulations and
rules". Then, under Article9 of the Statute, should the Secretary-
General decide not to reinstate a staff member whom he considers
better out than in, the Triburial has the unavoidable duty to fix
the amount of compensation. Furtbermore, Regulation 9.3 (a)
specifically provides for indemnity payment, and (6) for the

amount which may be paid in certain cases.

The status and cornpetenceof theAdministrative Tribz~na1.-The
Tribunal nas established hy the General Assemhly to guarantee
the right of appeal to staff members of the United Nations who
allege non-observance of their contracts of eniployment or of the
terms of their appointments by the Secretary-General. Like the
Administrative Tribunal of the League of Nations, its mission is
to provide legal protection for the members of the United Nations
Secretariat. It ivill be recalled that the League had provided tliat
its Assembly would, in the light of the experience gained, decide
later on whether there was reason to abrogate or amend the Tribu-
nal's Statute. However, this possibility did not materialize, becausc
it was shown that the Tribunal "served a useful purpose" es-
pecially "toward the end, when dismissals created hardships or were

not considered legally justified by individual members of the
Secretariat staff who had been subject to sanctions" (The Inter-
national Secretariat, Carnegie Endowment, 1945, p. 261). The same
motives behiiid the creation of the League's Administrative Tribu-
nal led to the establishment of the present one and there is reason
.to believe that the'latterhas proved equally useful to the Secre-
tariat of the United Nations.ZjZ ST.YrE.\IEST OF THE GO\'EHS.\IEST OF THE PHILIPPIXES (11 IIIj4)

The fact, however. that the Tribunal is a creature of the Assem-
bly does not necessarily imply that the latter has an untram-
meled right to modify, reverse or rescind the decisions of the
Tribunal.
Article 101, paragraph 1, of the Charter of the Uiiited Nations
provides that the Secretary-General shall appoint the staff of
thc Secretariat "under regukrtions established by the General
Assembly".
In accordaiice with Article zz of the Charter, which empowers
the General Assembly to establish such subsidiary organs as it
deems necessary for the performance of its functions, the General

Assembly adopted and promulgated the Statute of the Adminis-
trative Tribunal under Resoliition 351 (IV). Together with the
Staff Regulations, this Statute thus Iorms part of the "regula-
tions" mentioned in Article 101 of the Charter.
Articlez, paragraph 1, of the Statute provides that the Tribunal
"shall be competent ta henr and pass judgment upon applications
allcging non-observance of contracts of employment of staff
members of the Secretariat of the United Kations of the terms of
appointment of such staff members".
In the event of a dispute concerning the competence of the
Tribunal, paragraph 3 of the same Article provides that "the

matter shall be settled by the decision of the Tribunal".
Finally, Article IO, paragraph 2, of the Statute provides :
"The judgments (of the Tribunal) shall be final and without
appeal."

lliese positive and unambiguous provisions rule out an inter-
pretatioii which, basing itself on the doctrine of inherent powers,
\\.ould hold that the General Assembly nevertheless reserved to
itself the right to modify, reverse or revokc the judgments of
the Tribunal on certain grounds iri specific cases. In effect, the
General Assembly, by approving Article IO, paragraph 2, of the

Statute, divested itself of the right to review the judgments of
the Tribiinal.
It may be said that the General Assembly cannot, under the
Charter, renounce its authority. \Vhile a total renz~~zciationof
aiithority would indeed be improper and perhaps unconstitutional,
the act of the General Assembly in approving the Statute of the
Administrative Tribunal was a legitimate delegation of authority,
nfhich is a different matter altogether.
The delegation of authority to the Tribunal is as fully justifiable
in administrative practice as it is dcfensible inlaw. By stating that
the "judgments of the Tribunal shall be final and without appeal",
the General Assembly clearly recognized the impractical and even

dangerous situation that could arise if any and al1 judgments of
the Tribiinal were to be brouglit hefore the General Assembly as
to a court of last resort. Recognizing this possibility, the GeneralSTATEMEXT OF THE GO\'EHShlEST OF THE PHILIPPISES (11 III54) 253

Assembly wisely decided to place the contentious specific cases
that could arise in regard to the conditions of service of the Secre-
tariat staff members exclusively within the competence of the
Tribunal and outside its o\\.n. It \vas thus the clear intention of
the General Assembly to place these cases on a stable basis of
quasi-judicial determination. instead of subjecting them to the
shifting winds of political sentiment in the General Assembly.
This is both good la\\. and sound administrative practice.

Moreover, the doctrine of the final and unappealable character
of the judgments of the Tribunal does not leave the General Assem-
bly without adequate remedial power in case of need. The General
Assembly may :

I. Change the membership of the Administrative Tribunal ;
2. Modify or repeal the rcgulations governing the employment
conditions of service, and separation of staff members ;

3. Amend the Statutc of the Administrative Tribunal ; or
4. Abolish the Administrative Tribunal.

Some of these remedies are radical in nature, but there is iio
doubt that the General Assembly muld be fully justified in seeking
recourse to them in order to prevent abuse.

The will O/ the Getteral Assemb1y.-In the debates that have
taken place in the General Assembly on the question of compen-
sation, the best vie\\, ever to crystallize against the remedy \\.as
that it was not a "satisfactory substitute for the loss of employ-
ment" (Report of Fifth Committee, Doc. A/261j, 7 December I9j3,
p. 17). In voting on the amended text of Article 9 of the Statute
of the Tribunal. the Committee stood jg to none, tvith no ahsten-

tions, in favor of the first part of paragraph i giving the Tribuiial
the right to fix compensation in lieu of reinstatement ;32 to 17,
with j abstentions, on the second part fixing compensation at not
more than two years' base salary of the applicant (the .4dvisory
Committee had recommeiided only one year) ; and 34 to 13, with
6 abstentions, on giving the Tribunal the right to alvard a greater
amount in exceptional cases. On paragraph 3 of the Article, giving
the Tribunal the right to fix the compensation "in al1 applicable
cases". the vote was iinanimous (ibid p.,18).

Conclusions.-In the light of the foregoing considerations, the
follou~ingconclusions appear to be clearly established :

I. The Statute of the Tribunal provides that it shall fix the
compensation for the injury sustained when the Secretary-General
decides against reinstatemcnt ;

2. The payment of termination indemnity is one of the remedies
specified in the Staff Regulatioiis;STATEIIEST OF THE GO\'ERS\IEXT OF THE PHILIPPISES (II III54)
255
For the reasons above stated, my Government is of the opinion
that the ans\ver to question (1) of the General Assembly Resolution,

now before the International Court of Justice, must be in the
negative.
This position precludes the necessity of answering question (2).

1 have the honor, etc.

(Signed) SALVADOP R. LOFEZ,

Acting Permanent Representative. 12. LETTRE DE L'AMBASSADEUR DE L'UNIOX DES

REPUBLIQUES SOCIALISTES SOVIÉTIQUES A LA HAYE
AU GREFFIER DE LA COUR
N"40.

La Haye, le 15 mars 1954.

Monsieur le Greffier de la Cour,
En réponseà votre lettre di1 14 janvier 1954. j'ai l'honneur de
communiquer que le point de vue du Gouvernement de l'URSS à

propos d'un avis consultatif concernant des jugements du Tribunal
administratif des Nations Unies relativement à des indemnités de
compensationsà IIfonctionnaires du Secrétariat des Nations Unies,
relevés deleurs fonctions, a étéénoncépar la délégationde l'URSS
à la VIIIme Session de l'Assemblée générades Nations Unies
pendant la discussion de cette question par l'Assemblée générale.
Veuillez agréer,etc.

(Signé )IRSAKOV. 13. EXPOSÉ DU GOUVERNEMENT DU MEXIQUE

Mexico, D. F., lelermars 1954.

1. Par lettre du 24 décembre 1953. le Greffier de la Cour a com-
muniqué au Gouvernement du Mexique copie certifiéeconforme de
la résolution par laquelle l'Assembléegénérale desXations Unies
demande à la Cour internationale de Justice un avis consultatif sur
la force exécutoire des jugements accordant indemnité, rendus par
le Tribunal administratif des Nations Unies.
Par lettre du14 janvier 1954 le Greffierde la Cour a, de plus, fait
savoir quela Cour serait disposée àrecevoir de la part du Gouverne-
ment mexicain, Membre des Nations Unies, un exposé écrit sur
cette question, et que l'expiration du délai pour l'admission des
exposésécritsa étéfixé,par ordonnance du Président, au 15 mars

195C'est en réponseà cette lettre que le Gouvernement du Mexique
a l'honneur de présenter à la Cour les considérations ci-dessous :

II.Le Gouvernement mexicain estime que la question poséeà
la Cour pour avis, devait faire prendre position par celle-ci,sous les
aspects suivants :
A) La nature de la sitziatiojuridique des membres du personnel

des Nations Unies.
B) 1.a nature du recours juridique que les membres du peisonnel
peuvent êtrerecevables àintenter.
Ces deux aspects doivent ètre considérés à la lumière des Statuts
du Personnel et du Tribunal administratif des Nations Unies respec-

tivement.
Ces deux corps statutaires impl.qu.nt la reconnaissance, dans le
doni:iiiie iiitt:rii:rtiun:il,di1crint,:nrit.ux :idniinistr:irif.
II cil résult~(lue InCour eit d'xbord ni>i>eeasniiiinzr (~iizll?t-sr
1'a..r)licationde'sr-gles de droit internafional administratif au cas
concret.
L'activitéde la Cour comporte en première lignel'étudedes rap-
ports entre la personne morale constituée par les Nations Unies et
les membres du personnel de l'organisation.
III.De l'analyse de la situation juridique des membres du per-
sonnel des Nations Unies, le Gouvernement du Mexique conclut
que, dans le droit administratif international, cette situation juridi-
que des fonctionnaires apparaît, au premier abord, contractuelle.
Cependant, le contrat qui s'établit entre les membres du personnel

et les Nations Unies est éminemmentun contrat de droit public, en2j8 ESPOSÉ DU GOUVERYEMEST DU IIEXIQUE (1 IIIj4)

tant que les droits et les obligations de l'administration internatio-
nale, vis-à-vis sesfonctionnaires et autres membres de son personnel,
ont étédéterminés, enforme absolument unilatérale et en exercice
desa facultéréglementairepar l'Assembléequi. à travers ses résolu-
tions, a donnévie juridique au Statut du Personnel et au Statut du
Tribunal administratif, lesquels peuvent êtreà tout moment modi-
fiésde la'mêmefaçon.
Ainsi, c'est sur cette base qu'ont étéconclus entre l'administra-
tion et les membres de son personnel des accords générateursd'obli-
gations réciproquesqui consistent à se conformer aux dispositions

statutaires ou réglementaires qui les concernent.
Les fonctionnaires contractent des obligations quant à l'exercice
de leurs fonctions ;et l'administration le fait quant à la situation
du fonctionnaire et aux garanties accordées à cette situation -
parmi lesquelles se trouve le recours juridictionnel que les membres
du personnel peuvent êtrerecevables à intenter devant le Tribunal
administratif, dont les arrêts sont définitifs et irrévocables et
doivent êtrerespectés et mis en exécution par les Nations Unies.
La nature contractuelle des rapports qui existent entre l'adminis-
tration et les fonctionnaires a étéexpressément reconnue par le
Statut du Tribunal à l'article2.

Aux termes de l'article z du Statut, Ble Tribunal est compétent
pour connaître des requêtes invoquant l'inobservation du contrat
d'engagement des fonctionnaires du Secrétariat des Nations Unies
ou des conditions d'emploi de c<:sfonctionnaires, et pour statuersur
lesdites requêtes 11.
La nature contractuelle desdits rapports a étée ,lle aussi, reconnue
par la résolutionde l'Assemblée généralneo 352 (IV) du 24 novem-.
bre 1949 qui explicitement se rapporte aux a contrats et conditions
d'emploi il.
Mais les rapports juridiques existant entre les Nations Unies et
les fonctionnaires ne constituent pas un simple contrat de louage de

services du droit privé ; il faut y voir aussi un rapport d'emploi
public. En effet, la situation des membres du personnel est réglée
par le Statut du Personnel.
Pourtant, la situation juridique des fonctionnaires est non seule-
ment contractuelle mais elle est aussi statutaire, c'est-à-dire qu'elle
est déterminéepar les conventions normatives et par les statuts et
règlements de personnel, sans $orter atteinte aux droits acquis.
Nier que ces contrats soient de droit public parce que dans.
ceux-ci on trouve toujours qu'une partie doit être l'État, équi-
vaudrait à nier la personnalité en droit public des Nations Unies,
que la'Cour a déjà reconnue.

Mêmesi l'on n'admet pas la nature contractuelle en droit public.
de la nomination et emploi desfonctionnaires et des autres membres
du personnel des Nations Unies, et si l'on admet une autre inter-.
prétatiori juridique diverse à celle de l'acte subjectif, comme
l'est celle de l'acte-condition et l'acte-union, rien ne changerait EXPOSÉ DU GOUVERSEJIENT DU hlESlQUE (1 111j4) 259

les conclusions auxquelles le Gouvernement du Mexique arrive.
En effet, dans l'acte-condition et l'acte-union également, les
droits acquis des fonctionnaires et des autres membres du per-
sonnel des Nations Unies doivent êtrerespectés et garantis en
forme juridiquement obligatoire tant par l'Assemblée, comme
par les Organismes spécialisés oupar un autre organe quelconque
des Nations Unies. D'autre part, si le Statut du Personnel et le
Statut du Tribunal administratif sont valables par des résolutions
de l'Assembléeet peuvent êtremodifiéspar elle-même,1'Assem-

blée,par contre, ne peut pas appliquer, ex Pestfacto ou rétroactive-
ment, aucune amende ou réforme auxdits statuts, au préjudice
des droits acquis des membres du personnel.
IV. Le Gouvernement du Mexique a la conviction que la nature

juridique du recours devant le Tribunal doit êtreinterprétée à
la lumière des principes de droit public et de la législationadminis-
trative qui constitue la raison d'êtrede ce recours. C'est pour
garantir les fonctionnaires internationaux qu'on a établiun organe
qui protège leurs intérêtslégitimes contre l'arbitraire des chefs
et directeurs du service administratif international,
Ce recours ne protège pas seulement les intérêtsdes employés
publics internationaux mais garantit surtout fondamentalement
les intérêtsdu service public international.
Dans cette double protection se trouve la justification du recours
devant. le Tribunal administratif dont les arrêts sont définitifs

et irrévocables, comme le reconnaît expressément le Statut du
Tribunal à l'articleIO, et en conséquencelesdits arrêts,constituent
<ires jz~dicat)i.
L'indépendance, l'efficacitéet la stabilité des services publics
des Nations Unies ne pourraient être obtenues si l'Assembl6e
prétendait révoquer les arrêts du Tribunal administratif ou se
refusait à les exécuter ou par quelque autre moyen s'abstenait
de les mettre en exécutionou de les rendre effectifs.
Le recours devant le Tribunal administratif implique non seule-
ment la reconnaissance du contentieux administratif dansledomaine
international, mais il implique aussi la séparation de l'adminis-

tration contentieuse de l'administration active et l'application du
principe de la distribution des pouvoirs, propre de toute organi-
sation juridique démocratique.
Cette instance, qui a la facultéd'examiner et décider des ques-
tions de droit, est le Tribunal administratifet sa création, comme
on a vu, répondtant à l'exigence technique d'appliquer le principe
de la séparation et distribution des pouvoirs, comme à celle d'ob-
tenir des services publics internationaux efficaces en protégeant
les droits acquis des employés publics, en les préservant contre
l'abus d'autorité et en rendant sa situation indépendante des
considérations et jugements politiques propres de l'Assembl6e. V. L'existence mêmedu Tribunal administratif doit êtreenvi-
sagée sousdeux aspects : l'aspect organique di1Tribunal et l'aspect

fonctionnel de cette instance.
Sous l'aspect organique, il est vrai que le Tribunal administratif
est un organe subsidiaire de l'Assemblée, dans le sens que sa
création se doit à une r6solution de celle-ci par laquelle elle a
délégué l'acquittement de ses fonctions relatives à l'administration
contentieuse au Tribunal, en application de l'article 22 de la
Charte des Nations Unies.
. Mais sous son aspect fonctionnel, le Tribunal est une instance
indépendante de l'Assembléedans le sens que ses propres fonctions
ne sont point politiques, puisqu'il s'acquitte de celles d'organe
juridictionnel ou judiciaire, en matière contentieuse administra-
tive ;et il est aussi indépendant de l'administration active intema-
tionale dont le chef suprême est le Secrétaire général.

L'Assemblée générale,par résolution 3j1 (IV) du 24 novem-
bre 1949, modifiée par la résolution 782 B (VIII) du 9 décembre
1953. a également considéréle besoin qu'un organe juridictioniiel
indépendant acquitte les fonctions de connaitre le contentieux
administratif.
Le Gouvernement du Mexique arrive à la conclusion que si
ces résolutions ne sont pas abrogées par l'Assemblée, celle-cidoit
respecter la juridiction du Tribunal administratif, et qu'elle
est, également, obligéed'exécuter ses arr&ts. En tout cas, l'Assem-
bléedoit respecter les droits acquis des fonctionnaires et des autres
membres du personnel des Nations Unies, par leurs adhésions
aux conditions établies dans les Statuts du Personnel et du Tn-
bunal administratif respectivement.
Le Gouvernement du Mexique, finalement, affirme, avec Paul

Negulesco quand il établit dans ses rPrincipes de Droit interna-
tivnal administratif i)que :
«Le Tribunal administratif peut annuler l'acte administratif
ou ordonner l'exécution dc: l'obligation. Au cas où l'exécution
du jugement [est impossible en fait, ou inopportune, le Tribunal
peut accorder au demandeur des dommages-intérêts poulra répara-
tion au préjudice causé.a14. LETTRE DU MINISTRE DE YOUGOSLAVIE A LA HAYE
AU GREFFIER DE LA COUR

No 105.
La Haye, le 14 mars 1954.

Monsieur le Greffier de la Cour,
En réponse àvotre estiméelettre no19758 en date du 14 janvier
1954 se rapportant aux jugements accordant indemnité rendus par
le Tribunal administratif des Nations Uniesàela résolution de

l'Assemblée généraldees Nations Unies du g décembre 1953. j'ai
l'honneur, au nom de mon Gouvernement et en conformité avec
l'articl66,paragraphe z, du Statut de la Cour internationale de
Justice, de me référeret d'attirer l'attention de la Cour sur l'attitude
prise par leouvernement yougoslave lors de la discussion de cette
affaire dans le sous-comitéet lors du vote de la résolutionAl194 du
9 décembre 1953 en session plénièrede 8me Assembléegénérale
des Xations Unies.

Veuillezag~éer,'etc.
(SignéM)ilan RISTIC. 15. EXPOSÉ ÉCRIT DU
GOUVERNEMENT DE LA RÉPUBLIQUE DU CHILI

Par résolution adoptée par l'Assemblée généraledes Nations
Unies à sa VIIImo période de séances, il a étédécidéde soumettre

à la Cour internationale de Justice une requête pouravis consultatif
concernant la valeur obligatoire desjugemeiits du Tribunal adminis-
tratif des Nations Uiiies accordant indemnité pour résiliation de
contrat de service dans des cas déterminés.

1. Questionsposéespar L4ssemblée
Le Greffe de laCoor, conformément aux dispositions de l'article 66
de son Statut organique, s'est adresséàtous les États Membres pour
leur faire connaître le texte de la demande d'avis et leur manifester
que la Cour recevrait des exposés par écrit sur la matière avant
le 15 mars 1954 pour la discussion ou examen de la question.

Le texte des questions poséesest le suivant :
e1" Vu le Statut du Tribunal administratif des Nations Unies,
et tous autres instruments et textes pertinents, l'Assemgénérale
a-t-elle le droit, pour une raison quelconque, de refuser d'exécuter
un jugement du Tribunal accordant une indemnité à un fonction-
naire des Nations Unies à l'engagement duquel il a mis fin sans
l'assentiment de l'intéressé
2'Si la Cour répondpar l'affirmative. à la question 1).quels
sont les principaux motifs sur lesquels l'Assembléegénéralepeut
se fonder pour exercer légitimementce droit ?1)

II. Antécédentdse la demanded'auis
Des aiitécédentsexistants il s'ensuit que la décisionde solliciter
un avis consultatif de la Cour internationale de Justice a étéprovo-
quéepar un jugement du Tribunal administratif des Nations Unies

lequel a déclaré illégale une décision du Secrétaire général des
Nations Unies et, cet acte illégal ayant étécommis, il a ordonné,
sur cette base, qu'une indemnité de deux cent mille dollars soit
payée aux demandeurs.
La décisiondu Tribunal adniinistratif a étéprise au sujet d'une
réclamation présentéepar des fonctionnaires des Nations Unies qui
avaient étérenvoyés pour avoir été considérés liés à des activités
communistes, situation qui, d'aprèsle SecrétairegénéraldesNations
Unies, empêchait ces fonctionnaires de remplir les conditions néces-
saires d'indépendance, loyauté ou intégritéexigéesdu personnel.

III. Dispositions applicablesau cas dont il s'agit

Dans le Statut organique di1 Service du Secrétariat général des
Nations Unies, approuvé à la VITrLSeéancede l'Assembléegénérale EXPOSE DU GOUVERNEAIENT DU CHILI z63

et qui est entré en vigueur le rermars 1952, sont contenues les dis-
'positions qui règlent le cas examiné et permettent de juger sur
l'admissibilité de la demande, aussi bien que sur la compétence du
Tribunal administratif.
Le chapitre IX du Statut, ayant rapport àla cessation del'emploi

et au licenciement, confère compétence au Secrétaire général des
Nations Unies pour mettre fin aux services du personnel, soit
pendant la période de stage, ou, cette périoded'épreuveayant pris
fin, soit que l'intéresséoccupe un poste permanent, ou ait un contrat
pour une période fixe, à condition, néanmoins, que le Secrétaire
général estime que, pour les besoins du service, ce poste doit être
supprimé, ou si les services de la personne n'étaient pas satisfaisants,
ou si les conditions de santé l'empêchentde continuer son service,

ou enfin. uour d'autres raisons suécifiéesdaiis la nomination. (Art. o.
1fa), (cl.)
Le chapitre 1, relatif aux devoirs, obligations et privilèges des
fonc~~ ~naires. établit dans son art. 1.,. l'oblieation des fonction-
naires de souscrire un serment ou une promesse en ces termes :
Je jure solennellement (ou : je prends l'engagement solennel, je
fais la déclaration, on la promesse solennelle) d'exercer,en toute
loyauté, discrétionet conscience,les fonctions qui m'ont étéconfiées
en qualité de fonctionnaire international de l'organisation des

Nations Unies, de m'acquitter de ces fonctions et de régler ma
conduite en ayant exclusivement en vue les intérêtsde l'organisa-
tion sans solliciter ni accepter d'instmctions d'aucun gouvernement
ou autre autorité extérieure à l'organisation, en ce qui concerne
l'accomplissement de mes devoirs.
L'article 9.3 du chapitre IX, annexe III, établit qu'il n'est pas
verséd'indemnité pour résiliation de contrat en plusieurs cas, entre
lesquels celui du arenvoi sans préavis r est compris. (Sz~mmarily
dzsmissed.)

L'article z du Statut du Tribunal administratif des Nations Unies
fixe la compétence de cet organisme dans les termes suivants :(iLe
Tribunal est compétent pour connaître des requêtes invoquant
l'inobservation du contrat d'engagement des fonctionnaires du
Secrétariat des Nations Unies ou des conditions d'emploi de ces
fonctionnaires et pour statuer sur lesdites requêtes. r Les termes
cicontrats >et n conditions d'emploi 11comprennent toutes disposi-
tions pertinentes du Statut et du Règlement en vigueur au moment

de l'inobservation invoquée, y compris les dispositions du Règle-
ment des pensions du personnel.
Finalement, l'article IO,no z, duStatut du Tribunal administratif
dispose que les décisions du Tribunal sont définitiveset sans appel.

IV. Considérationssur le problème posé
Les antécédents qu'on vient de signaler et les dispositions
légales transcrites, permettent d'analyser la situation crééepar la
décision du Tribunal administratif des Nations Unies.264 EXPOSÉ DU GOUVERXEUENT DU CHILI
En premier lieu, il faut mettre en évidence que le Secrétaire
généraldes Nations Unies, en renvoyant les fonctionnaires deman-
deurs, a exécutéun acte de sa compétence exclusive, conformé-

ment à l'articl9.1 (a), (b) et (c) du chapitre IX du Statut orga-
nique dont il a étéfait mention antérieurement. Cet acte-là n'est pas
soumis à revision de la part d'une autre autorité ou tribunal.
La compétence octroyéepar la loi au Secrétaire général estdu
type discrétionnaire et reste, par là, soumise dans son exercice à
l'appréciation du fonctionnaire qui l'applique. II n'y a, en consé-
quence, aucune raison pour estimer que le renvoi des fonction-
naires est illégal, cequi pourrait seulement avoir lieu si la compé-
tence du Secrétaire généralaurait étédu type réglementéet qu'il
y aurait une infraction aux conditions que la loi elle-mêmesignale
pour son exercice.
Le Secrétaire général a estimép , robablement, que les fonction-
naires liésau communisme commettent une infraction au serment
- dont le texte a ététranscrit plus haut - en tant qu'il signifie
une promesse de se consacrer, dans l'exercice de ses obligations,
seulement aux intérêtsdes Nations Unies et de ne pas accepter

des instructions d'aucun gouvernement ou autorité étrangère à
l'organisation. Ce serment ou promesse est une condition requise
pour entrer au service des Nations Unies et, en conséquence, s'il
n'est pas respecté par les fonctionnaires, ils manquent à une
condition ou circonstance préalable sans laquelle ils n'auraient pu
êtreadmis au service. Donc, le Secrétairegénérala pu estimer qu'un
fonctionnaire, se trouvant dans de telles circonstances, n'est pas en
conditions de continuer au service.
Ce critérium ou appréciation pourrait, naturellement, être
discuté, mais le fait qu'il existe un ou plusieurs autres critériums
pour juger ce point, ne veut paç dire que le fonctionnaire, revêtu
par la loi de la compétence nécessaire pour le cas, ait procédé
illégalement en renvoyant ou destituant les employés.
Le Tribunal administratif, en qualifiant d'illégal,en ce cas-ci,
l'exercice de la compétence discrétionnaire octroyée par la loi au
Secrétaire général,a exécutéun acte qui reste ouvertement hors
de sa compétence,et qui est par là privéde toute valeur juridique

ou obligatoire. En effet, la disposition qui établit la compétence
de ce Tribunal - article z, transcrit plus hal-t la circonscrit au
jugement des demandes dans lesquelles on invoque l'inobser-
vation des conditions stipulées dans un contrat de travail et
au cas où l'on discute le sens et la portée des stipulations ou
conditions dudit contrat.
Nulle part le Tribunal n'a reçu la compétence nécessairepour
juger la façon dont les autorités au service des Nations Unies I
exercent la compétencequi leur incombe. Maintenant, le fondement
de la décisionqui ordonne de payer l'indemnité aux fonctionnaires
renvoyésoii destitués, serait l'illégalit6supposéede la décisiondu
Secrétaire généralordonnant ce renvoi ou cette destitution. En EXPOSÉ DU GOUVERNEMEXT DU CHILI 265

d'autres mots, l'indemnité ne pourrait ètre allouéeparce que la loi
dispose que les fonctionnaires destitués n'yont pas droit(sz~mmarily
dismissed) (art.9.3, chapitre IX, annexe III, signalé plus haut).
Le jugement soumis à examen n'a pas, en conséquence,une valeur
juridique et ne peut pas être exécuté puisquele Tribunal, ou
n'importe quelle autre autorité, peut seulement réaliser des actes
d'une valeur juridique dans la limite de la compétenceque la loi lui
assigne. Si l'on exécutait le jugement du Tribunal - et qu'on peut
seulement appeler décision ou jugement en raison de son aspect
formel -, tout ordre juridique possible serait détruit, du moment

qu'on permettrait à chaque autorité d'altérerles limites de sa com-
pétence, c'est-à-dire de passer au terrain de l'arbitraire qui est
l'opposédu droit.
Le Gouvernement du Chili considère que YAssembléegénérale
des Nations Unies qui créala compétenceet l'octroya au Tribunal
administratif en lui fixant les limites de son exercice, est qualifiée
pour examiner le cas soumis pour avis consultatif et pour décider
sile Tribunal a agi ou non dans les limites de la compétencequ'elle
lui a fixée. 16. TÉLÉGRAMME DU MINISTRE DES AFFAIRES
ÉTRANGÈRES DE LA RÉITJBLIQUE TCHÉCOSLOVAQUE

AU GREFFlER DE LA COUR

Le 18 mars 1954.

llonsieur le Greffier me référantà votre communication en date
du 14 janvier1954no 19758 concernant la procédured'avis coiisul-
tatifintroduite conformément à la résolution de l'Assemblée
générale desNations Unies du g décembre 1953 devant la Cour
internationale de Justice j'ai l'honneur de poàvotre connais-
sance que l'attitude adoptée par la Tchécoslovaquiesur la question
de l'effet juridique des jugements rendus par le Tribunal adminis-
tratif des Nations Unies a étéexposéepar la délégationtchécoslo-
vaque à la fin 8me Session à l'Assembléegénéraledes Kations
Unies et reste sans modification. L7 décembre 1953à la426mc
Séance de la Cinquième Comrnission de l'Assemblée généralele
représentant de la Tchécoslovaqiiie a souligné que le Gouverne-
ment tchécoslovaque considéraitles jugements du Tribunal comme
étant rendus en conformité avec la compétence que lui confère le
Statut comme définitifs et sans appel et ne pouvant être revisés
par l'Assemblée générale.Le Gouvernement tchécoslovaque se
réservele droit de décidàrune date ultérieure de sa participation
à la procédure des avis consultatifdans la phase des exposés
oraux. Veuillez agréer Monsieur le Greffier les assurances de ma
haute considération- Vaclav DAVIDMinistre des Affaires étran-
gères de la République tchécoslovaque. 17. WRITTEN STATEMENT
OF THE GOVERNMENT OF IRAQ

I. The Administrative Tribunal was set upbythe General Assem-
bly under the broad tenns of Article 7 (2) and the more specific
provisions of Article 22,as a subsidiary body of the General Assem-
bly, with the object of canying out certain functions which the
Charter assigned to the General Assembly and which the latter
deemed necessary to entrust, under certainlimitations, to the Admin-
istrative Tribunal. It follows from this that the General Assembly
possesses the power to amend or altogether abolish the statute of
the Tribunal. Consequently it must be admitted even more readily
that the General Assembly is at least equally as competent to under-
take what is in truth a lesser step-that of refusing, in the light of
justifying reasons, to give effect to an aurard of compensation given
by the Tribunal under circumstances specified in question (1).The
above argument would, it is submitted, gain further strength and

added credence when viewed in the light of an important privilege,
and indeed an onerous obligation, of the General Assemhly, namely,
its responsibility, under Article 17 of the Charter, to consider and
approve the budget of the Organization. This carries with it the
necessary corollary of capacity to review the work of the Organiza-
tion as a whole and to control ils activities. It must be pointed out,
therefore, that since even the other principal organs of the United
Nations are subject to this power of review and control, it could
scarcely he said that the -4dministrative Tribunal, which is admit-
tedly a suhsidiary organ of the General Assembly and a creature
of it,must be immune from the exercise of that power, Article IO
of its statute, expressing the finality of its judgments, notwith-
standing. It must he emphasized, moreover, that the General
Assemhly is in no position to waive at its own pleasure the budgetary

function assigned toit. The relevant articleis quite clear in imposing
an obligation on the General Assembly, which, it is needless to say,
must be performed with the general good of the Organization in
view.
2. As to question (2). it is submitted that since it is conceded
that in principle the General Assembly possesses the right to refuse
to give effect to an award of ccmpensation given by the Adminis-

trative Tribunal, it must be equally conceded that, as a necessary
inference thereof, the General Assembly is the sole judge of the
circumstances that would justify such a course. It is to be assumed,
however, that the General Assembly will use this right with moder-
ation, and only if the vital interests of the United Nations would
necessitate resort to it. It is suggested, however, that the following268 STATENENT OF THE GOVERXXENT OF IRAQ

would constitute reasonable grounds for such a course of action on
the part of the General Assembly :

(1) If the Tribunal, in awarding the compensation, has acted
ultra vires;
(2) If it has committed serious errors of judgment or fact ;or,

(3) If the compensation awarded is obviously unjustifiable. 18. WRITTEN STATEMENT OF THE GOVERNMENT
OF THE REPUBLIC OF CHINA

Taipei, March II, 1954

The Government of the Republic of China has the honor to
submit to the International Court of Justice the following state-
ment on the binding character of awards of compensation made by
the United Nations Administrative Tribuiial, on which question a
request for advisory opinion has been transmitted to the Court
under the Resolution of the General Assembly of the United Nations
of December 9,1953.
The Government of the Re~ublic of China is of the o~inion that

the General Assembly of the Ûnited Nations has the right to refuse
to give effect to an anard of compensation made by the United
Nations Administrative Tribunal iiifavor of a staff member of the
United Nations whose contract of service has been terminated with-
out his assent, if the General Assembly finds that the alvard is made
in error.
The principal grounds upon which the General Assembly could
la\vfully exercise such a right are the following:

(1)Under Article IO of the Charter of the United Nations, the
General Assembly is given wide powers to "discuss any ques-
tions or any matters within the scope of the present Charter
or relating tothe powers and functions of any organs provided
for in the present Charter" ;
(2)The Administrative Tribunal is an organ created by, sub-
sidiary to, and consequeiitly subject to the supervision of, the
General Assembly ; and

(3) Although Article IO (2)of the Statute of the Administrative
Tribunal provides that "the judgments shall be final and with-
out appeal", this provision is only binding on the Secretary-
General and the staff member or staff members of the United
Nations affected but does not preclude a review by the General
Assembly on its own initiative of the judgments rendered by
the Administrative Tribunal.

The Government of the Republic of China further wishes to bring
the followiiig pertinent facts to the attention of the Court:
The power of laying down and executing a personnel policy of the
United Nations is clearly vested in the Secretary-General in his
capacity as the Chief Administrative Oficer as provided in Chapter

XV of the Charter. The exercise of such power by the Secretary-
General is only subject to the review and approval of the General
Assembly. The consideration bythe General Assembly at its seventh270 STATE'\IEST OF THE GOVERS~IENT OF CHINA (II III54)

and eighth sessions of the Secretary-General's reports on personnel
policy (documents of the United Nations Al2364 dated January 30,
1gj3, and A/zj33 dated Xovember 2, 1953)furnishes material proof
of this point. The Secretary-Geiieral is not legally obligated to sub-
ject his personnel policy to the review of any other organ than the
Geiieral Assembly. Any interference in this field by any other organ
wuld presuppose a right of review on the part of that organ of the
personnel policy of the Secretary-General.
Prior to the rendering of the judgments by the Administrative

Tribunal in the eleven cases wliich led to the request for advisory
opinion, the Secretary-General had laid down a policy, on the basis
of a recommendation made by the Commission of Jurists, to the
effect that "staff members should be dismissed for violation of their
fundamental obligations, particularly under Article 1.4 of the Staff
Regulations, when they have used the privilege against self-incrimi-
nation in officia1inquiries concerned with subversive activities and
espionage". This policy \vas inçluded in his report of January 30,
1gj3 (paragraph gr of document A12364 of the United Nations)
submitted tothe General Assembly which considered it and adopted
a resolution (Xo. 708 (VII) dated April I, 1gj3) on it. The staff

members in question were dismissed in accordance with this policy.
In reversing the decisions made by the Secretary-General in this
regard, the Administrative Tribunal was intervening in a matter
wbich fell within the province of the Secretary-General and which
the Tribunal had no competence to question.
The powers of the Administrative Tribunal had been very far
stretched particularly in one of the cases relating to temporary
appointments (the Ruth E. Crawford case). Staff Regulation 9.1 (c)
stipulates, in regard to teinporary appointments, that "the Secre-
tary-General may at aiiy time terminate the appointment, if, in
his opinion, such action would be in the interest of the United

Nations". No other conditions :ire prescribed. Such being the case,
the Administrative Tribunal, in seeking a ground on which to base
its decision to reverse such a termination, had to rely on the allega-
tioiis of improper motive and misuse of power (paragraphs 2 to j of
judgment Xo. 18 (AT/DEC/rS) dated August 21, 1gj3) on the part
of the Secretary-General, which were only based on presumptive
evidences.
Under such circumstances, the Goveriiment of the Republic of
China believes that the General Assembly could, and should, exer-
cise the right to refuse to give effect to the awards of compensation
made by the Administrative Tribunal in favor of the staff members

of the Uiiited Nations in question.

[Seal : Ministry for Foreign Affairs of the Republic of China.] 19. LETTRE DU MINISTÈRE DES AFFAIRES ÉTRANGÈRES
DE LA RÉPUBLIQUE DU GUATEMALA AU GREFFIER

ADJOINT DE LA COUR

Guatemala, le 13 mars 1954.
Monsieur le Greffier :

J'ai l'honneur de vous faire parvenir ma réponseà votre commu-
nication du 14janvier 1954,numéro19758. dans laquelle vous avez
bien voulu vous référer àvotre communication du 24décembre1953
concernant la consultation présentée, conformémentà la résolution
des Nations Unies du 9 décembre 1953, numéro 785 (VIII), par
l'Assembléegénéraledes Nations Unies à la Cour internationale de
Justice sur la question de la force exécutoire des jugements rendus
par le Tribunal administratif des Nations Unies accordant des

indemnités. Conformément aussi à l'articl66, alinéa 2,du Statut
de la Cour, votre communication contient des référencesrelatives
au délai fixéaux États Membres et aux autres organisations pour
l'exercice de la facultéde présenterdes déclarationsécritesrelatives
à la matière qui est l'objet de l'avis consultatif ci-dessus indiqué.
Bien que mon Gouvernement ait déjà expriméson opinion sur la
question : «Politique relative au personnel des Nations Unies IIà la
CincliiièmeCommissionde l'Assembléegénérale,il a décidé de consi-
dérer spécifiquementl'affaire qui constitue l'objet de la consultation
en présentant un sommaire des points les plus importants de la
position qu'il a adoptéevis-à-vis de cette question et qui constitue
la déclaration prévue dans le Statut de la Cour.

I.Le Gouvernement du Guatemala, en qualité d'État Membre
des Nations Unies, a approuvéen 1949la résolution351 (IV) relative
à la créationdu Tribunal administratif qui constituerait l'organisme
juridique chargé de connaître - en plus des autres fonctionsdéter-
minéespar le Statut - les appels présentésen vue de discuter les
résolutionsadoptéespar le Secrétaire général des NationsUnies, qui
affectent les membres du personnel en raison des infractions aux
contrats ou conditions du travail. L'objectif poursuivi par la majo-
ritédes États Membresétaitla création d'untribunal de telle nature

qu'il serait en mesure d'instituer des principes universaux de justice
et d'équité favorisantle bien-êtreet la sécuritédes membres du
personnel des Nations Unies, dans les cas où les résolutionsadoptées
par le Secrétaire généralpourraient leur causer des dommages et
préjudices en raison d'infractions aux contrats de travail. La fonc-
tion finale du Tribunal administratif est l'accord des indemnités
réparatrices des actions accomplies par le Sécretaire général soit272 EXPOSÉ DU GOUVERNE>IENT DU GUATElllALA (13 III 54)

exerçant ses facultés propres soit e a fortiori» quand ces actions
représentent une application abusive desdites fonctions.
2. CAssemblée générale,par la résolutiondéjàindiquée(numéro
3j1, IV), a renoncé à considérer lescas ultérieurs soumisau Tribunal

administratif en affirmant dans la dernière partie de l'article 9 du
Statut : idans tous les cas oii il serait question d'indemnité, le
montant de celle-ci sera fixé par le Tribunal administratif et payé
par les Nations Unies ou par l'organisation spécialisée qui est partie
conformément à l'article 12 ».Une fois fixéel'indemnitécorrespon-
dante par le Tribunal, il ne reste qu'a faire effectuer son payement
par les Nations Unies ou l'agence spécialisée.

3. Ce point de vue a étéprécisé par la déclaration de l'Assemblée
généraledans l'alinéaz de l'article IO du Statut du Tribunal admet-
tant que les jugements rendus par le Tribunal sont sdéfinitifs et
sans appel possible ».En conséquence, l'Assembléegénérale,elle-
même - tout en étant la plus haute représentation de la partie
ubligL:t: payer I'indcmniré.Eraiit dépourvie par s;~I)rol)rL.clccision
de facultési)uurdc>ni:iil<leI:rrevisiondc ccttc oblicatiun -. iic i)oiir-
u
rait s'adju&r, contrairement à tous les principes de droit, ia faculté
de reviser les cas jugésqui n'admettent paç d'appel possible.
4. Une fois que le jugement du Tribunal a étéétabli, iln'y a plus
de base pour la faculté de revision de l'Assembléegénérale,pas
mêmeen invoquant son pouvoir souverain dans l'organisation.

j. Le Guatemala, en sa qualitéd'État Membre desNations Unies,
reconnaît les pouvoirs souverains qui appartiennent à l'Assemblée
généraleet qui sont uniquement limitéspar les plus élevés principes
de justice. Comme illustration de cette limitation, il faut rappeler
que l'article II du Statut du Tribunal administratif formulé par

l'Assembléegénérale,en établissant les pouvoirs souverains dudit
organisme par la déclaration : cile présent Statut peut êtremodifié
par décisionde l'Assemblée générale o, envisage plutot les cas qui
pourraient êtreprésentes à l'avenir, puisque l'alinéaz de l'article10
déjàindiqué limiteévidemment les facultés del'Assembléegénérale
en disant : rles jugements rendus sont définitifs et sans appel
possible ti.

6. Finalement, on ne peut pas invoquer comme un antécédent
favorable, pour fonder la prétendue facultéde revision desjugements
du Tribunal administratif par l'Assemblée générale des Nations
Unies, le fait historique de la résolutionadoptéepar l'éteinteSociété
des Nations concernant son refus d'exécuter les jugements du Tri-
bunal administratif de cette organisation. Du point de vue juridique
les deux cas sont absolument différents,puisqu'ilest facilede consta-
ter la réduction faite par l'Assenibléede la Sociétédes Nations à

cette époque-là, réductionpar laquelle ledélaide notification concer-
nant les destitutions étaitfixé il un mois au lieu de six mois, comme
il l'étaitauparavant, et on sait que les rares employésqui n'ont pas EXPOSÉ DU GOUVERNE,\IEXT DU GUATEnI.4LA (13 IIIj4) 273

accepté la situation ont fait appel au Tribunal et ont obtenu de
cette façon une résolutioiifavorable à l'accord des indemnités, mais
ils n'ont pas agi conformément à son Statut, puisque le Secrétaire
général,représentant d'une des parties, était absent, ce qui a donné
comme résultat la déclaration d'incompétence du Tribunal en ce
qui concernait la revision d'une résolutionadoptéepar l'Assemblée
générale.Vu que le jugement du Tribunal s'opposait effectivement
à la décisionde l'Assemblée, celle-ci a donc adopté une résolution

suspendant l'exécutiondu jugement rendu par le Tribunal.
Dans la situation actuelle qui est l'objet de la consultation
présentéepar L'Assembléegénérale desXations Unies à la Cour
internationale de Justice, le Tribunal administratif a agi confor-
mément au Statut en vigueur ;il n'existe aucune résolution de
l'Assembléegénéralequi constitue une modification dudit Statut
ou une impugnation faite par le Tribunal dans ses jugements
accordant des indemnités; le Secrétaire général aparticipé à
toutes les procédures verbales et finalement il n'a pas discuté
la compétence du Tribunal. En relation avec ce dernier cas le
Statut stipule, dans son article z, alinéa 3 : «dans le cas d'une
dispute relative à la compétence du Tribunal, celle-ci sera réglée

par décision du Tribunal II.
Dans tous les cas jugés jusqu'à présent par le Tribunal admi-
nistratif des Nations Unies, le Secrétaire général non seulement
n'a discuté la compétence du Tribunal, mais il a accepté ses
jugements et a demandéson exécution et, avec la recommandation
du Comitéconsultatif, l'inclusion dans le budget de l'organisation
des fonds correspondants.
En conclusion, le Gouvernement du Guatemala, considérant le
Statut du Tribunal administratif des Nations Unies, les antécé-
dents historiques de la question et les principes universaux de
droit, déclareque l'Assembléegénérale n'apas faculté pour refuser
l'exécution des jugements rendus par le Tribunal accordant des
indemnités à faveur des membres du personnel des Nations Unies
qui ont étérenvoyés sans son agrément.

Veuillez agréer, etc. 20. EXPOSÉ ÉCRIT DU GOUVERNEMENT DE LA

REPUBLIQUE TURQUE '

Avant de donner une réponse à la question de savoir si l'As-
semblée générale desXatioiis Unies a le droit de refuser ou non
l'exécution d'une sentence rendue par le Tribunal administratif,
il serait nécessaire d'esaminer si cette Assemblée peut discuter
une décisiondu Tribunal administratif.
D'après l'articleIO de la Charte des Nations Unies, l'Assemblée
généralepeut discuter toutes questions ou affaires rentrant dans
le cadre de la Charte ou se rapportant aux pouvoirs et fonctions
de l'un quelconque des organes prévus dans cette Charte.
Le Tribunal administratif est un organe créépar l'Assemblée

générale, conformément à l'articl22 de la Charte.
Or, du moment que 1'.4ssembléegénéralepeut discuter toutes
questions rentrant dans les attributions des organes crééspar la
Charte même, exceptéles questions prévuesau premier paragraphe
de l'article12 de la Charte, il est tout naturel qu'elle puisse, et
à plus forte raison, examiner et discuter les questions qui tombent
dans la compétence d'un organe institué par elle pour l'assister
dans l'accomplissement d'une partie de sa tâche et pour gérer
les affaires rentrant dans ses attributions, un organe que, en
somme, l'Assembléepeut, en tout état de cause, abolir ou dont
elle peut modifier la structure.
D'autre part, dans l'exercice de sa juridiction, un Tribunai
administratif des Xations' Unie doit toujours s'inspirer des prin-
cipes admis par la majorité des membres de l'Assembléegénérale

qui l'a constitué. Il est de toute évidenceque l'Assembléegénérale
puisse constater si les principes appliqués par un tribunal créé
par elle sont conformes à ses propres principes, ce qui ne serait
possible que si l'Assembléepouvait, le cas échéant, discuter les
actes accomplis et les jugements rendus par le Tribunal. Le droit
et le pouvoir de l'Assembléede discuter ces questions étant ainsi
établis, la question de savoir si l'Assembléepeut ou non mettre
en exécution les décisions du Tribunal se trouve résolue d'elie-
même.
.4 notre avis, l'Assemblée générale a le droit de refuser l'exé-
cution de toute décision du Tribunal, en tant qu'instance supé-
rieure, si elle juge ces décisions pertinemment contraires aux
principes juridiques admis par la majorité de ses membres. Autre-
ment, l'on pourrait aboutir à cette conclusion absurde de recon-
naître à un organe auxiliaire de l'Assembléegénéralele droit

d'appliquer des principes juridiques non admis par eue. 21. \VRITTEN STATEMENT OF THE GOI'ERNMENT
OF ECUADOR

No. 60-DL.
Quito, April 21, 1954.

Mr. Registrar :
1 have the honour. to acknowledge receipt of your letter dated
the 12th March of the current year and enclosed copy of a letter
of January 14th, 1954, sent to me and which 1 unfortunately
did not receive in due course. By this letter you invite the Govem-
ment of Ecuador to file a written statement regarding the legal
right of the General Assembly to refuse to give effect to awards
by the Administrative Tribunal of the United Nations, as it
appears from Resolution 785 (VIII) of December gth, 1953.
Considering your letter of January ~qth, 1954, the special and

direct communication referred to by .4rticle 66, paragraph 2, of
the Statute of the International Court of Justice, and in accordance
with my telegrams of Rlarch 9th and Xarch 20th of the current
year, 1 have the honour to file with you a statement relating to
the question referred by the General Assembly to the Inter-
national Court of Justice for its advisory opinion. Pursuant to
Article 39, paragraph 1, of the Statute of the International Court,
1 am usiug the English language for my statement sent to you
within the time-limit fixed in the second paragraph of your letter
of Xarch ~zth, Igj4.
This statement confirrns the vote giren by the Ecuadorean
delegate, on instructions of my Government, at the Fifth Com-
rnittee of the General Assembly when it discussed the appropriation
of 179,420requested by the Secretary-General of the Organization
for the payment of the awards made by the Administrative
Tribunal on the basis of its decisions in eleven controversial cases.

Our point of departure for this written statement is Article22
of the Charter of the United Nations which reads :
"The General Assembly rnay establish such subsidiary organs
as it deems necessaryfor the performance of its functions."

This provision is reproduced textually by the first part of
rule 150 of the Procedure of the General Assembly.
On the grounds of both articles the General Assembly established
several subsidiary organs, such as the Advisory Committee on
Administrative and Budgetary Questions, the expert Cornrnittee
on Contributions and the Administrative Tribunal. The powers
of these organs do not extend beyond the limits set by the General
Assembly which reserved the right of enlarging or restricting
them, as provided for by rules 150 and 152 of the Procedure of:
the General Assembly.276 STATEXEST OF THE GOVERSIIEST OF ECU.4DOR

The legal construction of the Government of Eciiador is clear
and simple, and is based upon general mles of law. For the better
performaiice of its functions the General Assembly deemed it
neccssary to divide its work iamong various subsidiary organs,
each of which has a spccific task. Thus, we can assert that the
General Assembly delegated the conduct of some business to these
subsidiary organs, chiefly olving to the fact that the General
Assembly meets in regular animal scssions and has intervals of
recess. They submit reports on their work to the General Assembly
-admittedly, with the exception of the Administrative Tribunal
-\\,hich is bound by their reci~mmendations and décisionsin so

far as it approves and adopts them. Moreover, the General Assembly
may establish new organs or suppress one or more of the existing
ones, reorganize or merge thcm, as it deems more expedient.
Whatever its statute may provide, the Administrative Tribunal
is not placed on a higher position than the other subsidiary organs,
as far as powers and functions are concemed. The Administrative
Tribunal does not derive its po\vers and functions from the Charter
of the United Nations but only from a statute approvcd by the
General Assembly. This is tantamount to say tbat the sphere of
action of the -4dministrative Tribunal is confined to what the
General Assembly may prcscribe and that the existence itself of
the Tribunal depends on the decision of the Assembly.
If the substantive aspect of the Administrative Tribunal rests
etitirely on the General Assembly. the procedural aspect must he

considered along the same lines. Under rule 141 of the Procedure,
the General Assembly shall cstablish regulations for the financial
administration of the United Kations. For the discharge of these
functions, the General Assenibly established various organs.
Notwithstanding its judicial tasks, the Administrative Tribunal is
closely related to the financial administration of the United
Nations, since its judgments entai1 the consideration and approral
of appropriations by the General AssembTy. in order to pay the
amounts of compensation fised by the Tribunal. The. General
Assembly reserves the right of approving or reversing the decisions
of the subsidiary organs, and the Administrative Tribunal cannot
be excepted, hecause in Our conceptioii of administrative law,
it is subordinate to the General Assembly, inasmuch as it owes

its existence to the Assemhly.
My Government does not agree on the view cxpressed by the
Secretary-General of the Organization in Section 17, (ii) of his
report (document A/2534), according to which, when a staff
member rvhose contract has been terminated without his assent,
appeals from the decision of the Secretary-General, the parties
appeanng before the Administrative Tribunal are the General
Assembly and the' staff member concemed. The staff of the
Organization is appointed by the Secretary-General under regula-
tions established by the Genisral Assembly (Article TOI, para- STATEZIEST OF THE GO\'ERSZIEXT OF ECUADOR 277

graph 1, of the Charter, and Article 50 of the Staff Rules of the
United Nations). Accordingly, the Secretary-General inust be
regarded as the employer and the staff member as the employé.
If the contract of a staff member has been terminated without
his assent and he appeals from the decision to the Administrative
Tribunal, the parties appearing before it will be the member and
the Secretary-General. The origin of the funds has nothing to do
with the parties to the dispute. The Administrative Tribunal is
representing the General Assembly which reserves the right to
accept the decision of the Tribunal or refuse to give cffect to it.
Thns, if the General Assembly reversed the action of the

Administrative Tribunal in eleven controversial cases by denying
the appropriations requested by the Secretary-General, it \vas
esercising its rights and po\rrers, regardless of other implications
of the cases which are not relevant to the points snbmitted to
the International Court of Justice, since its Statute does not
proi~ide for the rendering of advisory opinions on other than
legal questions.
1 have endeavoured to state the views of my Government on
the question as a whole, instead of analyzing each of the two
points submitted to the International Court of Justice because,
in this way, the Court will better understand Ourlegal constrnction
of the relationship betwecn the General Assembly and the
Administrative Tribunal avoiding, at the same time, other than

legal considerations about the right of the Assembly to refuse
to give effect to the awards of the Tribunal in eleven controversial
cases, mhich are the background of Resolution 785 (VIII) of
December 9, 1953.
3Iy Government believes that the present written statement
\vil1furnish the information required under Article 66, paragraph2,
of the Statute of the International Court of Justice, on the question
of the powers of the Administrative Tribunal, referred to the
Court for its advisory opinion under Article 65 of sûid Statute.
1 have, etc.,

(Signed) Luis. :Ant. PENAHERRERA,
Rlinister of Foreign Affairs,
Republic of Ecuador.