INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
APPLICATION FOR REVIEW OF
JUDGEMENT No.158 OF THE
UNITED NATIONS
ADMINISTRATIVE TRIBUNAL
COUR INTERNADE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
DEMANDE DE RÉFORMATION
DU JUGEMENT N° 158
DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIES IX
CONTENTS - TABLE DES MATIÈRES
Page
Request for Advisory Opinion . . . . . . . . . . 1
The Secretary-General of the United Nations to the President of the
International Court of Justice . . . . . . . . . . . . . 3
Dossier transmitted by the Secretary-General of the United Nations
(Art. 65, para. 2, of the Statutc) . . . . . . . . . . . 5
INTRODUCTORY NOTE . . . • . . . . . . • . . . . 7
Part l of the dossier. Documentation relating to the proccedings
leading to the request by the Committee on Applications for
Review of Administrative Tribunal Judgements for an advisory
opinion of the International Court of Justice in relation to Judge-
ment No. 158 of the Administrative Tribunal . . . . . . . . . 8
A. Documents of the Tenth Session of the Committee on Appli-
cations for Review of Administrative Tribunal Judgements . . 8
B. Other documents cited in or relevant to documents considered
by the Committee on Applications for Review of Administra-
tive Tribunal Judgements at its Tenth Session . . . . . . . . 8
Part li of the dossier. Documentation relating to the formulation of
Article 11 of the Statute of the Administrative Tribunal . . . . . 10
A. Documentation of the Ninth Session of the General Assembly . 10
B. Documentation of the Special Committee on Review of Ad-
ministrative Tribunal Judgements . . . . . . . . . . . . 10
C. Documentation of the Tenth Session of the General Assembly 11
CONTENTS OF THE DOSSIER 13
Writtcn Statcment
WRITTEN STATEMENT SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE ON BEHALF OF THE SECRETARY-GENERAL OF THE UNITED
NATIONS • . . • . . . . . 27
1. Background . . . . . 27
A. Summary of the facts 27
B. The previous proccedings 30
1. The Joint Appeals Board 30
(a) JAB Case No. 172 . 30
(b) JAB Case No. 181 . 32
2. The Administrative Tribunal: Case No. 144 33
3. The Committee on Applications for Review of Admini-
strative Tribunal Judgements: Application No. 14 . . . . 35
II. Analysis of the questions addressed to the Court by the Com
mittee on Applications for Review of Administrative Tribunal
Judgements . . . . . . . . . . . . . . . . . . . . . . 36
A. Claim for damages in respect of professional reputation and
career prospects . . . . . . . . . · . . . . . . . . . . 37X APPLICATION FOR REVIEW
Page
1. Factual and legal issues . . . . . . . . . . . . . . . 37
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for damages? . . . . . . . . . . . . . . . 40
(a) The Tribunal's decision with respect to the claim for
damages .. ·. . . . . . . . . . . . . . . . . 40
(b) The Tribunal's obligation to award monetary com-
pensation . . . . . . . . . . . . . . . . . . . 41
3. Did the Tribunal commit any fundamental error in pro
cedure which has occasioned a failure of justice with
respect to the claim for damages? . . . . . . . . . . 42
(a) The Tribunal's procedure . . . . . . . . . . . . 42
(b) The Tribunal's obligation to explain the basis on
which it fixes amounts of compensation to be paid 42
(c) The adequacy of the award . . . . . . . . . . . 43
(d) Summary . . . . . . . . . . . . . . . . . . . 44
B. Claim for award of costs incurred in the previous proceedings 44
1. Factual and legal issues . . . . . . . . . . . . . . . 44
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for costs? . . . . . . . . . . . . 45
(a) The Tribunal's jurisdiction to award costs . . . . . 45
(b) The decision in the instant case . . . . . . . . . . 46
3. Did the Tribunal commit any fundamental error in pro
cedure which has· occasioned a failure of justice with
respect to the claim for costs? . . . . . . . 46
(a) The Tribunal's practice in awarding costs 46
(b) The factors in the instant case . . . . 47
(c) Summary . . . . . . . . . . . . . 48
C. Claim for recalculation of salary and allowances 48
1. Factual and legal issues . . . . . . . . . . 48
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for recalculation? . . . . . . . . . . . . . 53
(a) The Tribunal's conclusions with respect to the claim
for recalculation . . . . . . . . . . . . . . . . 53
(b) The correctness of the Tribunal's conclusions with
respect to the claim for recalculation . . . . . . . 53
(i) The Secretary-General's discretion in determi-
ning emoluments applicable to an assignment . 53
(ii) The Secretary-General's obligation to recalculate
emoluments for a foreshortened assignment . . . 54
(c) Summary . . . . . . . . . . . . . . . . . . . 54
3. Did the Tribunal commit any fundamental error in pro
cedure which bas occasioned a failure of justice with
respect to the claim for recalculation? 55
Ill. Request for the award of costs . . . . . . . . 56
A. Claims for costs . . . . . . . . . . . . 56
1. ln connection with the application to the Committee on
Applications· for Review . . . . . . . . . . . . . . 56 CONTENTS XI
Page
2. In connection with the proceeding before the Court . 56
B. The Court's authority to award costs 56
IV. Conclusions . . . . . . ..... . 57
A. The nature of the review by the Court 57
B. Issues for review . . . . . . . . . 58
1. Failure to exercise jurisdiction . . 58
2. Fundamental errors in procedure . 59
3. Other issues . . . . . . . . . . 60
Annex. Analysis of allegations concerning Mr. Fasla's Perioc:lic
Reports . . . . . . . . . . . . . . . . . . . . . . . . . 62
CORRECTED STATEMENT OF THE VIEWS OF MR. MOHAMED FASLA
SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE SECRE-
TARY-GENERAL10F THE UNITED NATIONS 65
General background . 65
Applicant's arguments 70
Plea {d) 15
Plea e) 83
Plea (!) 84
Plea (g) 84
Plea(h) 85
Plea (i) 86
Plea (j) 87
Plea (k) 88
Plea (/) 89
Plea(m) . 89
Plea (n) 91
Plea (o) 93
Plea (p) 93
Plea (q) 94
Conclusions 97
List of Attachmellts to the corrected statement of the views of Mr.
Mohamed Fas/a . . . . . . . . . . . . . . . . . . 100
Written Comments
COMMENTS ON 8EHALF OF THE SECRETARY-ÜENERAL OF THE UNITED
NATIONS ON THE CORRECTED STATEMENT OF THE VIEWS OF MR.
MOHAMED FASLA SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE • . • . . • • • • . . • • . • 103
I. Nature of the review by the Court . . . . . . . 103
A. Scope of the review . . . . . . . . . . . . 103
B. Functions of the Court in the review process . 104
II. Comments on substantive issues . . . . . . . 105
A. A policy question . . . . . . . . . . . . 105
B. Questions concerning the Tribunal's Statute 105
1. lnterpretation of Article 9 (3) . . . . . 105
2. Interpretation of Articles 10 (3) an11(1) 105
3. Function of the Tribunal 106
C. Factual questions . . . . . . . . 107Xll APPLICATION FOR REVIEW
Page
III. Procedural issues . . . . . 107
A. Requests for documents . 107
1. Letler from Mr. Hagen 107
2. Correspondence with the Government of the Yemen Arab
Republic . . . . . . . . . . . . . . . . . . . . . 108
3. Evaluations of Mr. Fasla by Mr. Hagen . . . . . . . . 108
4. Report of a high-level investigation by UNDP of its pro
gramme in Yemen . . . . . . . . . . . . . . . . . 108
5. Dossier of correspondence with the Administrative
Tribunal . . . . . . . . . . . . . . . . . . . . . 109
6. Minutes of the Tribunal's consideration of Mr. Fasla's
appeal . . . . . . . . . . . . . 109
B. Certain objections by Mr. Fasla . . . . . . . . . . . . . 109
1. Contents of the dossier of documents . . . . . . . . . 109
2. Role of the General Legal Division vis-à-vis the Admini-
strative Tribunal . . . . . . . . . . . . 110
C. Request for oral hearings . . . . . . . . . . 110
D. Publication of the statement of Mr. Fasla's views 110
IV. Summary and conclusions . . . . . . . . 111
Annex. Analysis of factual questions and of pleas . 113
A. Preliminary factual questions . . . . . . . 113
1. Mr. Fasla's record of service . . . . . 113
2. Circumstances of Mr. Fasla's assignment to Yemen 114
3. Circumstances of Mr. Fasla's recall from Yemen . . 114
4. The timing of the decision to dispense with Mr. Fasla's
services . . . . . . . . . . . . . . . . . . . . . . . 115
5. Did UNDP take any punitive action against Mr. Fasla? . . 116
6. Was Mr. Fasla a victim of prcjudice on the part of UNDP? . 117
7. Efforts to find another post forMr. Fasla . . 118
B. Comments on specific pleas . . . . . . . . . 119
l. Plea (d): Restoration of the status quo ante 119
(a) Legal issues . . . . . . . . . . . . 119
(b) Factual issues . . . . . . . . . . . 119
2. Plea (e): Correction and completion of Mr. Fasla's fact
sheet . . . . . . . . . . . . . . . . . . . . . . . 121
3. Plea (g): Further efforts to placeMr. Fasla . . . . . . 121
4. Plea (h): Compensation for violation of rules concerning
periodic reports . . . . . . . . . . . . . . . . . . . 122
5. Plea (i): Compensation for failure to make an effort to
place Mr. Fasla . . . . . . . . . . . . . . . . . . . 122
6. Plea (j): Compensation for injury sustained by Mr.
Fasla as the result of prejudice displaycd against him . . . 122
7. Plea (k): Compensation of one Yemeni rial for emotional
and moral suffering . . . . . . . . . . . . . 125
8. Plea (/): Compensation for delay in disposing of JAB
Case No. 172 . . . . . . . . .. . . . 125
9. Plea (m): Reimbursement for legal costs 125 CONTENTS XIII
Page
10. Plea (n): Damage to professional reputation and career
prospects . . . . . . . . . . . . . . . . . . . . . 126
11. Plea (o): Compensation for delay in disposing of JAB
Case No. 181 . . . . . . . . . . . . . . . . . . . . 127
12. Plea (p): Recalculation of emoluments for foreshortened
stay in Yemen . . . . . . . . . . . . . . 127
13. Plea (q): Placement of Mr. Fasla on special leave with
full pay . . . . . . . . . . . . . . . . . . . . . . 128
List of the Appendices to the comments on beha/f of the Secretary
General of the United Nations . . . . . . . . . . . . . . . . 129
Note on the Appendices . . . . . . . . . . . . . . . .... 130
COMMENTS EXPRESSING THE Vrnws OF MR. MOHAMED FASLA ON THE
WRITTEN STATEMENT SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE ON BEHALF OF THE SECRETARY-GENERAL OF THE UNITED
NATIONS ..................••••..•. 131
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Part I. Scope of review embodied in questions addressed to the Court
by the Committee on Applications for Review of Administrative
Tribunal Judgements . . . . . . . . . . . . . . . . . . . . 135
Part II. The basis of fundamental injuries inflicted by the failure of
the UNDP, the Secretary-General, and the Administrative
Tribunal to discharge their legal obligations . . . . . . . . . . . 138
Part 11/2.The obligation to secure a position for Applicant . . . . . .139
Part 11/3.The Tribunal's obligation to award monetary compensation 140
Part IJ/4. The obligation of the Administrative Tribunal to explain
the basis for its award compensation . . . . . . . . . . . . . 146
Part III. Claim to be reimbursed for costs incurred in proceedings 147
Part IV. Claim relating to recalculation of salary and allowances for
service in Yemen . . . . . . . . . . . . . . . . . . . . 149
Part V. Claim that the Court has authority to award costs . . . . 151
Part VI. The impingement of prejudice on the proceedings of the
Tribunal ..................... . 151
Part VII. Conclusions . . . . . . . . . . . . . . . . . 152
List of Attachments to the comments expressing the views of Mr.
Mohamed Fas/a . . . . . . . . . 155
Persona! Annex of Mr. Mohamed Fasla 156
Annex A to Part 11 . . 156
Annex B to Part Il 164
Supplement to Part IV . 172
List of Attachments to the persona/ annex of Mr. Mohamed Fas/a 175
READING OF THE ADVISORY ÜPINION 177
Correspondence
Nos. 1-39 183WRITIEN STATEMENT 27
WRITTEN STATEMENT SUBMITTED TO THE INTERNATIONAL
COURT OF JUSTICE ON BEHALF OF THE SECRETARY-GENERAL
Of THE UNlTED NATIONS
New York, September 1972.
1. BACKGROUND
A. Summary of the Facts
1.The facts relevanttothe proceeding in the Administrative Tribunal of the
United Nations to which Judgemcnt No. 158of the Tribunal relates were out
lined by the Tribunal in that Judgcmcnt (AT/DEC/158-doc. No. (11), pp. 3-6).
ln so for as relevant to the questions addressed to the Court in the present pro
ceeding (see para. 19 below) they may be summarized even more succinctly
as follows.
2. (a) Mr. Mohamed Fasla, the applicant to whom Judgement No. 158 of
the Tribunal relates, was a member of the staff of the United Nations
30 June 1964 - 29 June 1966
30 June 1966 - 31 December 1966
1 January 1967 - 31 December 1967
1 January 1968 - 1 April 1968
2 April 1968 1 May 1969extended to 31Decemberl969.
(b) During this entire period he was assigned to the Technical Assistance
Board (TAB) and its successor, the United Nations Development Programme
(UNDP). His successive function.tl titles and official duty stations were:
30 June 1964 to Assistant Resident Damascus,
31 December 1965 Representative Syrian Arab Republic
l January 1966 to Assistant Rcsident Beirut, Lebanon
31 May 1966 Representative
1 June 1966 to Programme Officer Bureau of Evaluation
31 December 1966 and Reports, New
York
1 January 1967 to Area Officer Bureau of Operations
31 May 1968 and Programming,
New York
1 January 1968 to on Joan to United Nations lnstitute
31 March 1968 for Training and
Research (UNITAR),
New York
1June 1968 to Assistant Residcnt Freetown, Sierra Leone
14 September 1968 Representative
15September 1968 to Assistant Resident Taiz, Yemen
22 May 1969 Representative28 APPLICATION FOR REVIEW
23 May I969 to home leave fol Algeria
31 December l969 lowed by
special Ieave California, USA (place
of recruitment).
(c) Mr. Fasla's performance was evaluated in six Periodic Reports:
Period Covered Dossier (Date of Report)
(Assignment) doc. No. (3), Remarks
Annex:
30 June 1964 to ·9 (1 July and 15 October
30 June 1965 1965)
(Damascus) See Annex, para. A.I
1January 1966 to 13 (September 1970)
31 May 1966 Prepared retroactively
(Beirut) on basis of JAR
recommendation; see
paras. 8 and lO below,
and Annex, para. A.2
June 1966 to 14 (9 and 14 November
October l966 1966)
(Bur. Eva!. and See Annex, para.
Reports, N.Y.) A.4 {b)
November 1966 to 21 (21 and 24 November
November 1967 1967)
(Bur. Op. and Prog., See Annex, para. A.5
N.Y.)
January 1968 to 22 (18 September l970)
March 1968 Prepared retroactively
(UNITAR, N.Y.) on basis of JAB
recommendation; see
paras. 8 and JO below,
and Annex, para. A.6
June 1968 to 60 (22 September 1970)
March 1969 Prepared retroactively
(Freetown and on basis of JAR
Taiz) recommendation and
invalidated consequent
onTribunaljudgement;
see paras. 8, JOand 30
below, and Annex,
para.A.8.
3. Mr. Fasla's assignment in Taiz was origina!Iy intended to last untiJ 31
December 1969, the expiration of his then current appointment. However, on
10 May 1969 he was instructed to leave Yemen together with his family, with
the assumption that he would not be returning, and to report in New York for
consultations on 20 May (see doc. No. (3), Annex 48). On 20 and 21 May Mr.
Fasla met with the Director of the Bureau of Administrative Management and
Budget of UNDP and with the Chief of the Personnel Division of UNDP, and
the latter summarized the ouccome of these discussions in a lettby which Mr. STATEMENT OF THE SECRETARY•GENERAL 29
Fasla was authorized to proceed immediately on home leave. The letter also
informed him that every effort would be made· to secure another assignment
for him in UNDP, or in the United Nations Secretariat or elsewhere in the
"UN family"; since it was anticipated that this task would not be easy in the
lightof previous occasions on which Mr. Fasla's continued service had been
in seriousdoubt, he was warned that on the conclusion of his home leave he
might be placed on special leave with full pay until the expiration of his ap
pointment, which would not be cxtended if no placement could be found
(see doc. No. (3),Annex 50; also substantially reproduced in doc. No. (11),
(pp. 4-5).
4. ln early June 1969 the Chief of the UNDP Personnel Division, following
customary procedures, dispatched communications to the United Nations
Personnel Department, to several other United Nations departments and or
gans, to two UNDP Resident Representatives and to two specialized agencies
participating in UNDP"s work, informing them of Mr. Fasla's availability
and attaching a "Fact Sheet" (formally entitled "Personnel Record"-see
doc. No. (3), Annex 51) summarizing his education, his employment history
prior to his recruitment by the United Nations and his assignments in the
Organization. The first part of that Record, entitled "Evaluation", consisted
of an extract of the only three Periodic Reports that had been prepared on Mr.
Fasla up till then, covering the periods of 30 June 1964 to 30 June 1965 (TAB
Office, Damascus), June-October 1966 (UNDP Bureau of Evaluation and
Reports, New York) and November 1966 to November 1967 (principally in
UNDP Bureau of Operations and Programming, New York). At that time no
Periodic Reports had been prepared on Mr. Fasla covering his remaining
periods of service, and the Fact Sheet neither included any evaluation for such
periods nor any explanation for why such periods were not covered. No re
ference was made to the fact that Applicant had submitted a statement of
rebuttal in respect of his first, rather unfavourable Periodic Report, and that
he had also written a letter challenging the equally unfavourable third Report
(see Annex, paras. A. I and A.5).
5. On 12 September 1969 the Chief of the UNDP Personnel Division in
formed Mr. Fasla, who had by then completed his home leave in Algeria and
had returned with his family to the place of his recruitment in Califomia, that
no new assignment had yet been found for him, that it might consequently not
be possible to extend his contract after its normal expiration on 31 December
1969, and that after the exhaustion of his accumulated regular leavè he would
be placed on special leave, with full pay, until the expiration of his contract.
On 20 November the Director of UNDP·s Bureau of Administrative Manage
ment and Budget notified Mr. Fasla that it had not been possible to find a new
assignment for him and that consequently no extension of his contract could
be envisaged (see doc. No. (3), Annex 56).
6. The various disputes that culminated in the present proceeding related
primarily to the circumstances and consequences of Mr. Fasla's recall from
his last assignment in Yemen; to the efforts made to find a new assignment for
him within UNDP or elsewhere in the United Nations or in a specialized agen
cy; and to the determination that no such assignment could be found, and that
consequently his contract should not be extended. The several proceedings
that Mr. Fasla initiated in connection with these disputes are summarized in the
next section of this Statement, together with the decisions of the instances
concerned. The specific facts relevant to the questions addressed to the Court
are set forth in detail in the subsequent sections relating separately to each such
question.30 APPLICATION FOR REVIEW
B. The Previous Proceedings
1. THE JOINT APPEALS BOARD
(a) JAB Case No. 172
7. After Mr. Fasla had been notified on 12 December 1969 that there was
no basis for the Secretary-Genera\ to alter the position taken by UNDP in not
extending his fixed-term contract past 31 December 1969, he lodged an appeal
with the United Nations Joint Appeals Board, cstablished and functioning in
accordance with Staff Regulation 11.1 (see doc. No. (14) or (15)) and Staff
Rules l l l.1-111.3 (sce doc. No. (15)). ln that proceeding he principally con
tended that the failure to renew his appointment was motivated by prejudice,
discrimination and malice on the part of UNDP, that the Periodic Reports on
him were deficient and mis!eading in many respects, that no account had been
taken of the special difficulties of several of his assignments and finally that
UNDP had not fulfilled in good faith the obligation it had undertaken to
attempt to find another pose for him, inside or outside of UNDP, since it had
donc no more than to send out brief non-committal inquiries to which a biased,
incomplete and misleading Fact Sheet was attached (see doc. No. (2), paras.
7-31).
8. After written and oral procecdings the Joint Appeals Board prepared a
Report to the Secretary-General, in which it summarized its conclusions and
made recommendations as follows (doc. No. (3), Annex 2, paras. 41-46):
"Considerations and Conclusions
41. As this was a case of non-renewal of a fixed-term appointment, the
Board did not attempt to evatuate the appellant·s performance but decided
to determine whether the administrative decision had been motivated by
prejudice or by some other extraneous factor.
42. The Board is conscious that it was not within its responsibilitics to
comment upon the conditions prevailing in the UNDP offices in Syria and
Yemen and is of the view that the appellant"s references to the Resident
Representative in Yemen were relevant only if it were shown that the
Resident Representative·s actions had in any way reflected prejudice
against the appellant.
43. The Board finds no evidence to indicate prejudice on the part of
officiais at UNDP Headquarters. White the Board recognizes that there
m.ay have bren prejudice against the appellant on the part of the Resident
Representative in Ycmen, no c\ear-cut evidence has been subrnitted to
substantiate this assumption.
44. The Board therefore conc\udes that the UNDP has not violated
any Staff Regulations or Staff Rules nor the tcrms and conditions of
appointment of the appellant in not renewing his fixed-term appointment
after 31 December 1969.
45. The Board nevertheless feels constrained to take account of certain
other aspects of this case:
(a) lt is evident that very difficult conditions prevailed in the UNDP
offices both in Syria and in Yemen. By assigning the appellant to these
duty stations, UNDP put him in difficu!t situations. Adverse assess
ments of his work under these circumstances placed him in a disad
vantageous position with respect to his future assignrnents with UNDP
or other International Organizations. He thus became a victim of
circumstances not entirely through his own faÙ\t. STATEMENT OF THE SECRETARY-GENERAL 31
(b) UNDP did not follow the established administrative procedures with
respect to the periodic reports in this case, since there were substantial
gaps in his servicenot covercd by reports and particularly there was no
report assessing his work for the period Novembcr 1967 until his
separation on 31 December 1969.
(c) Similarly the UN DP did not follow the required practice with regard
to rebuttals of periodic reports by staff members.
(d) Complimentary assessments of the appellant"s work in Lebanon were
neither included in his Otncial Status file nor mentioned on the fact
sheet. The handling by UNDP of the periodic reports and rebuttals
and the decisions as to what should or should not be placed on the file
or the fact sheet was less than competent.
(e) UNDP·s efforts to assign the appellant elsewhere were inadequate
especially since the fact sheet was incomplete. lt is the view of the
Board that, as a result of these facts, the performance record of the
appellant is incompletc and misleading and that this seriously affected
his candidacy for a further extension of his contract or for employment
by other agcncics.
Recon1mendations
46. The Board makes the following unanimous recommendations for
the consideration of the Secrctary-General:
(i) UNDP should re-examinc the appellant's files with the view to filling
the gaps in the records in accordance with established procedures, and
bringing thcm up-to-datc with ail required periodic reports and
evaluations of work, which should then be reflected adequately in the
appellant's fact sheet.
(ii) UNDP should make further scrious efforts to place the appellant in a
suitable post either within UNDP or with one of the other inter
national Organizations.
(iii)If UNDP fails in these efforts, the Board recommends that an ex
gratia payment equivalent to six months' salary be made to the
appellant."
9. The Secretary-General, t1 whom the report of the Joint Appeals Board
constituted a recommendation ,dccided to refer the first two recommendations
of the Board to the UNDP administration for such action as it might deem
appropriate, and to take no action on the recommendation for an ex gratia
payment for which he found no basis (see doc. No. (3), Annex 3).
10. ln compliancc with the first recommendation of the Joint Appeals
Board referred to it by the Secretary-General the UNDP administration ar
ranged to secure Periodic Reports covering Mr. Fasla"s service during the
periods January-May 1966(Lebanon), January-March 1968(Joan to UNIT AR,
New York) and June 1968-March 1969 (Sierra Leone and Yemen). Mr. Fas\a
signed the first two of these but, in view of the cxtremely unfavourable nature
of the third Report, hc declined to sign and indeed attempted to submit itto
the Joint Appeals Board to substantiatc his charge of prcjudicc, on which the
Board had held against him. The Board, howevcr, advised him that its terms of
reference did not permit it to reopen a procecding as to which it had already
made a report to the Secretary-General who had taken a final decision thereon;
instead, the Board suggested that the Report in question be submitted to the
1 StafTRegulation 11.J(doc. No.(14)or(15)); Staff Rule lll.3(l){doc. No.(15)).32 APPLICATION FOR REVIEW
Administrative Tribunal, where Mr. Fasla had in the meantime launched an
appeal (see section l.B.2 below). A revised Fact Sheet was also prepared (doc.
No. (3), Annex 66), which noted that a rebuttal had been made to the Periodic
Report for June 1964-June 1965 (TAB office in Damascus), indicated that a
Report was on file for January-March 1968covering a loan to UNIT AR, and
summarized the ratings of the controversial final Report, without, however,
quoting any of the special negative comments included therein. However, the
new Fact Sheet was not circulated to any prospective employer.
11. With respect to the second recommendation referred to the UNDP
administration, Mr. Fasla was informed on 31 August 1970 that since ail
possible efforts had been made to find him a suitablc post before the expiration
of his contract, itwas not intended to offer him another appointment in the
future (doc. No. (3), Annex 58).
(b) JAB Case No. 181
12. On 12 August 1970 Mr. Fasla initiated a second proceeding in the Joint
Appeals Board, dealing in part with some questions raised but not finally
disposed of in the first proceeding, and in part with entirely new ones. His
principal daims were:
(a) that since his period of service in Yemen had been reduced, by his recall,
to Jess rhan one year, his emo)uments for that period should have been
retroactively recomputed on the higher short-tcrrn basis rather than on the
long-term one on which they had actually been paid (see section 11.C
below);
(b) that he should have received, from the time of his recall from Yemen until
the expiration of his contract, a "post adjustment" based on the higher
New York rather than the Yemen rate;
(c) that-the Board should determine that his placement on special leave against
his wishes was improper, and that he should therefore be appropriately
compensated for this injury.
13. After holding the usual proceedings the Joint Appeals Board, in its
Report to the Sccretary-General dated 18 January 1971, summarized its con
clusions and made recommendations as follows (doc. No. (3), Annex 67, paras.
40-42):
"Conclusions and Recommendations
40. The Board finds that the appellant's assignment as Assistant Resi
dent Representàtive in Yemen was intended to continue for more than one
year and that his salary and allowances were correctly determined on that
basis. The Board finds further that when it was decided in May 1969 that
the appellant would go on leave while a search was made for a new as
signment for him, the appellant was transferred to Headquarters and his
duty station was changed to New York. Consequently, the Board considers
that the appellant should have been paid the New York post adjustment
for the period from 23 May 1969 to 31 December 1969, and recommends
that the Secretary-General authorize payment to him of the difference
between the New York post adjustment for that period and the Taiz post
adjustment which he received.
41. ln the absence of any guidance in the Staff Regulations or Rules or
in administrative instructions as to whether salary and allowances should
be recalculated when an assignment for one year or more is eut short, the STATEMENT OF THE SECRETARY-GENERAL 33
Board does not make any recomrnendation for the readjustment of the
appellant's salary and allowances for the period during whîch he served
in Yemen. The Board recommends, however, that the Secretary-General
consider making an ex gratta payment to the appellant in the amount of
any Iosses that he can show that he has suffered as a consequence of his
precipitate recall from Yemen.
42. Lastly, the Board finds that the Secretary-General was authorized
under Staff Regulation 1.2 to recall the appellant from Yemen and under
Staff Regulation 5.2 to place him on special Ieave with pay from 10 Sep
ternber 1969 to 31 December 1969. In the Board's view the special leave in
question was authorized in the interests of the appellant in order to permit
a search to be made for a further assignment for him. The Board finds,
moreover, that the appellant accepted the benefits of this arrangement
and suffered no loss in salary or allowances because of it. Accordingly,
the Board makes no recommendation in support of the appellant's con
tentions concerning special leave."
In effect, two members of the Board agreed with Mr. Fasla's second claim,
stated that they did not find a Jegal basis for the first one but recommended ex
gratta payment of any demonstrated losses due to the precipitate recall, and
rejected the third daim. The third member of the Board dissented on the last
two points (the first and third claims), holding that the emoluments for the
service in Yernen should be recomputed and that Mr. Fasla was injuredbythe
involuntary special leave.
14. On 8 March 1971 Mr. Fasla was informed that the Secretary-General had
accepted the recommendations of the majority of the Board as to ail three
points (see doc. No. (3), Annex 68).
2. THE ADMINISTRATIVE TRIBUNAL: CASE No. 144
15. On 31 December 1970,after the Joint Appeals Board had reported on the
first appeal and the Secretary-General had taken his final decision thereon,
but before the second appeal had yet been disposed of, Mr. Fasla filed an Ap
plication with the United Nations Administrative Tribunal, requesting it to
order the following measures (doc. No. (3), Annex 86, para. 8; reproduced in
doc. No. (l l)pp. l-2):
.. ( a)As a preliminary measure, production by the Respondent of the
report by Mr. Sattrap, Chief, Middle East Area Division, UNDP on
his investigation of the UNDP office in Yemen in February 1969.
(b) As a preliminary measure, production by the Respondent of the
report by Mr. Hagen, Consultant to the UNDP Administrator, on his
investigation of the UNDP office in Yemen in March 1969.
( c) As a preliminary measure, production by the Respondent of the
report by Mr. Hagen, UNDP Special Representative in Yemen,
concerning the Applicant's performance, prepared at the request of
the UNDP in the summer of 1969.
(d) Restoration of the Applicant to the status quo ante prevailing in May
1969, by extending the Applicant's last fixed-term appointrnent for
a further two years beyond 31 December 1969, with retroactive pay
of salary and related allowances; alternatively, payment by the
Respondent to the Applicant of three years' net base salary.
(e) Correction and completion of the Applicant's Fact Sheet which is
intended for circulation both within and outside the UNDP, with ail34 APPLICATION FOR REVIEW
the required Periodic Reports a!Jd evaluations ofwork; alternatively,
payment by the Respondent to the Appiicant of two years' net base
salary.
(/) Invalidation of the Applicant's Periodic Report covering his service
in Yemen, prepared in September 1970; alternatively, payment by
the Respondent to the Applicant oftwo years' net base salary.
(g) Further serious efforts by the Respondent to place the Applicant in a
suitable post either within the UNDP or within the United Nations
Secretariat or within a UN Specialized Agency; alternatively, pay
ment by the Respondent to the Applicant of two years' net base
salary.
(h) As compensation for injury sustained by the Applicant as the result
of the repeated violation by the Respondent of Administrative
Instruction ST/Al/! 15, payment by the Respondent to the Applicant
of two years' net base salary.
(i) As compensation for injury sustained by the Applicant as the result
of the continuous violation by the Respondent of his obligation to
make serious efforts to find an assignment for the Applicant, pay
ment by the Respondent to the Applicant of two years' net base
salary.
()) As compensation for injury sustained by the Applicant as the result
of prejudice displayed against him, payment by the Respondent to
the Applicant offive years' net base salary.
(k) As compensation for the emotional and moral suffering inflicted by
the Respondent upon the Applicant, payment by the Respondent to
the Applicant of one Yemen rial.
(I) As compensation for delays in the consideration of the Applicant's
case, especialty in view of the fact that no Joint Appeals Board was
in existence during the first four months of 1969 since the Respondent
had failed toappoint a Panel ofChairmen, payment by the Respondent
to the Applicant of one year's net base salary.
(m) Payment to the Applicant of the sum of $1,000.00 for expenses in
view of the fact that, although the Applicant was represented by a
member of the Panel of Counsel, the complexity of the case neces
sitated the Applicant's travel from California to New York in May
1970 (see Anriex 2, para. 6) as well as frequent transcontinental
telephone calls to the Applicant's Counsel before and after that date.
(n) As compensation for the damage inflicted by the Respondent on the
Applicant's professional reputation and career prospects as the result
of the circulation by the Respondent, both within and outside the
United Nations, of incomplete and misleading information con
cerning the Applicant, payment by the Respondent to the Applicant
of five years' net base salary."
On 11 June 1971, after the Joint Appeals Board had reported and the Sec
retary-General had decided on his second appeal, Mr. Fas/a filed a Supplement
to his Application to the Administrative Tribunal, requesting it to order the
following additional measures (doc. No. (3), Annex 89, para. 7; reproduced
in doc. No. (11), p. 3):
" (a') As compensation for the further delay in the consideration of the
Applicant's case early in 1971, payment by the Respondent to the
Applicant of one year's net base sa\ary.
(b') Recalculation by the Respondent of the Applicant's salary and STATEMENT OF THE SECRETARY-GENERAL 35
allowances in Yemen on the basis of the actual duration of the
Applicant's assignment there, and payment to the Applicant of
the difference between the recatculated amount and the amount
the Applicant received.
(c') As compensation for the illegal suspension of the Applicant from
duty, payment by the Respondent to the Applicant of five years'
net base salary."
16. The Secretary-General filed his Reply to the original Application on 1
June 1971(doc. No. (3), Annexes 87 and 64-66), and a Supplement to the Reply
(in response to the Supplementary Application) on 12 August 1971 (doc. No.
1(3), Annexes 90 and 73). Mr. Fasla filed Observations as to both Replies on 15
November 1971 (doc. No. (3), Annexes 88 and 74-84, and 91). As no request
for oral proceedings had been made and as the prcsiding membcr did not decide
that any should be hcld (Rules of the Tribunal-doc. No. (13), Art. 15), the
case was decided on the written pleadings. With reference to the requests for
the production of three documents as preliminary measures (see subparas.
15 (a)-( c) above), the Tribunal noted that the first of these was annexed to the
Secretary-Genera!'s Reply (doc. No. (3), Annex 65), the second of thesc was
supplied in confidence to the Trihunul which decided that only a single para
graph of it was relevant and communicated tlrnt extract to Mr. Fasla, while
the third cou Id not be located in the filesof UN DP (doc. No. (11), part Il of the
judgement). The Tribunal deliberated on the case from IO to 28 April 1972,
and on the latter date issued the Judgement (doc. No. (11)) to which the
present proceeding relates.
I
17. The principal part of the Tribunal's Judgcment deals with Mr. Fasla's
interwoven claims rclating to the non-renewul of his appointment and the
efforts made by UNDP to find anothcr position for him 2•The Judgement also
deals with claims concerning delays 3, for the award of costs4, for the recom
putation of the emoluments paid in Yemen 5, and for compensation for the
allegedly illegal suspension from duty through the spccinl leave 6,
3. THE COMMITIEE ON APPLICATIONS FOR REVIEW OF
ADMINISTRATIVE TRIBUNAi. JUDGEMENTS: APPLICATION No. 14
18. On 26 May 1972 Mr. Fasla, through his attorneys, filed an Application
(doc. No. (3)) with the Committec on Applications for Revicw of Adminis
trative Tribunal Judgemcnts, in acwrdance with Article 11, paragraph 1, of the
Statute of the Administrative Trihunal (doc. No. (13)). ln part lll.A of that
Application, Mr. Fasla asserted thnt the Tribunal had failcd to exercise its
jurisdiction with respect to his claim for damages in respect or his professional
reputation and career prospects (see subpara. 15 (n} above); in part 111.Bhe
made a similar assertion with respect to his claim for the award of costs in
connection with the previous proccedings (ibid., 15 (m)); and in part 111.Che
1 Doc. No. (11), parts Ill-XIII, XVIII,1,2,4of the _judgement.
1 Subparas. 15 (d)-(k), (11)abovc; also the discu~sionin section 11.A.Ibelow.
3 Subparas. 15 (1), (u')above; doc. No. (11),parts XVI, XVJll.4 of the judgcmcnt.
• Subpara. 15 (111)above; doc. No. (11), parts XVII, XVlll.4 of the judgcmcnt;
also the discussion in section 11.B.Ibclow.
5 Subpara. 15 (h') above: doc. No. (11), part XVlll.3 of the judgcment: also the
discussion in section 11.C.I below.
6 Subpara. 15 (c')abovc; doc. No. (1 !),parts XIV, XVIII.4 of the judgcmcnt.36 APPLICATION FOR REVIEW
made a similar assertion with respect to his daim for recalculation of his emo
luments in Yemen (ihid.,15 (b')); the legal questions he proposed to have sub
mitted to the Court in this connection were stated in paragraphs I and 3 of part
IV of the Application. ln part III.D Mr. Fasla contended that the Admini
strative Tribunal committed fundamental procedural errors in connection with
the same threè daims to which parts III.A-C were addressed; the legal ques
tions he proposed to have submitted to the Court in this connection were stated
in paragraphs 2 and 4 of part IV. Finally, in part 111.Eof the Application
Mr. Fasla requested the Committee and/or the Court to award him the costs
incurred in presenting that Application. ·
19. After the Secretary-General had submitted his Comments on Mr.
Fasla's Application (doc. No. (4)), the Committee was convened to·consider
the Application, and met for this purpose on 8, 13, 19and 20 June. At the con
clusion of its deHberations, on which it issued a report (doc. No. (10)), it
adopted the following decision (ibid.,para. 10):
'"TheCommittee on Applications for Review of Administrative Tribunal
Judgements has decided that there is a substantial basis within the meaning
of article 11 of the Statute of the Administrative Tribunal for the applica
tion for the review of Administrative Tribunal Judgement No. 158, de
livered at Geneva on 28 April 1972.
Accordingly, the Committee requests an advisory opinion of the
International Court of Justice on the following questions:
1. Has the Tribunal failed to exercise jurisdîction vested in it as contended
in the app\icant's application to the Committee on Applications for
Review of Administrative Tribunal Judgements (A/AC.86/R.59)?
2. Has the Tribunal committed a fundamenta\ error in procedure which
has occasioned a failure of justice as contended in the applicant's
application to the Committee on Applications for Review of Admini
strative Tribunal Judgements (A/AC.86/R.59)?"'
The Committee decided to express no opinion on Mr. Fasla's request for
costs incurred in presenting his Application to the Committee (ibid.para. 9).
IL ANALYSIS OF THE QUESTIONS ADDRESSED TO THE COURT BY
THE COMMITIEE ON APPLICATIONS FOR REVIEW OF ADMINIS
TRATIVE TRIBUNAL JUDGEMENTS
20. ln addressing its two questions to the Court, the Committee on Applica
tions for Review specified theîr scope only by reference to the contentions in
the Application Mr. Fasla had addressed toit. Consequently it is assumed that
the Court wîll wish to examine both these questions with reference only to the
three daims specifically referred to in parts 111.A-C of the Application (see
para. 18 above). The present section therefore contains an ana\ysis of these
daims, each of the three being examined first in the context of its factual and
legal background, thcn from the point of view of the jurisdiction the Admini
strative Tribunal could and did exercise with respect to it, and finally from the
point of view of the Tribunal's procedure to determine whether a failure of
justice might have been occasîoned through any fundamenta\ error in such
procedure. The basis on which the Court might conduct such a review is dis
cussed in section IV be!ow. STATEMENT OF THE SECRETARY•GENERAL 37
A. Claim for Damages in Respect of Professional
Reputation and Career Prospects
1. FACTUAL AND LEGAL ISSUES
21. The final claim in the original Application submitted by Mr. Fasla to
the Administrative Tribunal read as follows (doc. No. (3), Annex 86, para.
8(n));
"(n) As compensation for the damage inflicted by the Respondent on the
Applicant's professional reputation and career prospects as the
resultof the circulation by the Respondent, both within and outside
the United Nations, of incomplete and misleading information con
cerning the Applicant, payment by the Respondent to the Applicant
of five years' net base salary."
22. This claim was not one that had been submitted to or considered by the
Joint Appeals Board. Rather it appcars to be an extension of a number of other
claims in the Application to the Tribunal concerning the means and diligence
with which the UNDP had tried to place Mr. Fasla with one of its own offices,
or within other United Nations organs or some specialized agencies; these
related daims demanded that Mr. Fasla's appointment be extended at least
two years, that further serious efforts be made to place him within UNDP or the
United Nations or a specialized agency, that the Fact Sheet with the aid of
which such a search would be undertaken be corrected and completed, that
one of the Periodic Reports summarized in the latest version of the Fact Sheet
be invalidated, and that compensation be paid for the previous failure to make
a serious effortat placement and the several violations committed by the UNDP
in respect of the Periodic Reports on Mr. Fasla.
23. Since the asserted damage to Mr. Fasla's professional reputation and
career prospects appears to derive almost solely from the circulation of the
Fact Sheet prepared by the UNDP in June 1969 on the basis of the three
Periodic Reports about Mr. Fasla then in existence (see para. 4 above), it is
desirable to explain the Jegal basis for the preparation of such Reports as well
as of the effort at placement undertak~n by the UNDP.
(a) The obligation to prepare Reports on staff members is specified in Staff
Rule 112.6 (doc. No. (l S)):
..Service and Conduct Reports
ln the Professional category and lower salary levels, the service and
conduct of a staff member shall be the subject of reports made from
time to time by his supervisors. Such reports, which shall be shown to
the staff member, shall forma part of his permanent cumulative record."
(b) This general provision is detailcd in Administrative Instruction ST/AJ/115
(doc. No. (16)), the pertinent parts of which are:
Staff/0 be reported 011andperiodicity of reports
2. Reports will be made on ail staff below the level of Director (D2)
on temporary or permanei1t appointments. They will be made at the end
of each year of service on staff serving under temporary appointments ....
The reporting period shall be based on the date of the staff member's first
appointment to continuous service.38 APPLICATION FOR REVIEW
The new forms and their use
5. The first sectîon, which covers in detail most aspects of a staff mem
ber's performance, will be completed by the immediatc responsible super
viser. who will sign this section. There is a second section which will be
completed by the next superviser in 1ine who is not Iower in rank than
Chief of Section. All reports will be seen by the Head of the Depanment
or Office or by a Director dcsignated by him. He will have space to add his
comments, ifany.
llllerim and specia/ reports
7. In addition to the regular periodic reports, fnterim reports written
on the ordinary periodic report form willbe made:
(a) on the transfer or reassignment of a staff member (whether at Head
quarters or to 3 Mission) when such service excecds or is expected to
exceed a period of six months;
{b) whenever feasible, when the immediate supervisor is about to leave.
No interim report will be required jfthe supervisor has made a reguJar
report on the staff member in question within the last three months.
9. \Vhile intcrim reports under paragraph 7 (a) above will only be re
quired if the service has been of more than six months' duration, a staff
member may request a special report, for submission to his own reporting
officer, inrespect of any assignment of less than six months in anothcr
Department, Office, Unit or Section.
Reports tobe sfwwn tosta/fmember
11. Each staff member reported on in a regular or intcrîm or special
report shall be given a copy of the report a/fer it has becn completed by the
appropriate reporting oflicers. As soon as possible thereafter he shall sign
a statement on the original that he has seen it and has rcceived a copy.
13. Ifthe staff member so desires, he may make a written staternent in
explanation or rebuttal of part or all of any report, which statement shall
be joined to the report to which itrefers. Where a staff mcmber makes
such a statement, the Head of the Department will investigate the case and
will record his appraisal of it in writing. This record will be filed together
with the report and the staff member's statement."
(c) No rule or administrative instruction exists regarding the prepararion of
Fact Sheets used in summarizing information about staff members for
whom it is desired to seek another post in the Organization, \Vhile there
is no general obligation to effect or to attempt to effect such placement,
Staff Regulation 4.4 (doc. No. (14) or (15)) does oblige the Secretary
General to consider the mcrits of exisüng staff in filling any vacancies:
"Regulation 4.4: Subjcct to the provisions of Article 101, Paragraph 3,
of the Charter, and without prejudice to the recruitment of fresh talent at all
levels, the fullest regard shall be had, in filling vacancies, to the requisite STATEMENT OF THE SECRETARY-GENERAL 39
qualifications and experience of persons already in the service of the United
Nations. This consideration shall also apply on a reciprocal basis to the
specialised agencies brought into relationship with the United Nations."
{d) In addition, in respect of Mr. Fasla, the Administrative Tribunal deter
mined that UNDP's Ietter of 22 May 1969(doc. No. (3), Annex 50) created
a forma! commitment to try to find another assignment for him (doc. No.
(11), part IV of the judgement).
24. Fact Sheets used in placing staff members are designed to summarize the
record of their employment by the United Nations. Though such record does
not cansist salely of the Periadic Reports (Staff Rulel l2.6specifies merely that
these reports constitute part of the permanent cumulative record), these
necessarily constitute an important ingredient of each such Sheet. As Mr.
Fasla's charges of injury to his reputation and career rest almost exclusively
on his complaints concerning the Periodic Reports that were, or according to
him should have been, summarized in the Fact Sheet that was circulated in
July 1969 (doc. No. (3), Annex 51 l,his objections are analysed in the Annex
hereto, in the light of ail relevant points of which the Tribunal could take
account in evaluating the merits of these complaints. ln summary itwould ap
pear that white a number of technical departures from the applicable Admini
strative Instructions could be established, Mr. Fasla cannot show convincingly
that these faults substantially prejudiced him; moreover, he was aware of the
practicesof which he belatedly complains and did not object to them currently,
even to the extent of failing to utilize certain procedures prescribed for this
purpose in the Instructions.
25. Moreover, the one repart with serious prejudicial implications, whîch in
1970 belatedly covered Mr. Fasla's service from June' 1968 in Sierra Leone to
March 1969 in Yemen and whose invalidation the Tribunal directed (see para.
30 below), was necessarily not included in the June 1969 Fact Sheet, the only
one that circulated outside of UNDP. Thus the only paper as to whîch the
Tribunal reached a strongly negative conclusion (which Mr. Fasla interprcted
as a finding of "malicious distortion"-doc. No. (3),para. A.7) was not one
that could have affected his reputation or career. The several gaps in the
evaluation of Mr. Fasla's service record in the 1969 Sheet, while perhaps not
satisfactory to a personnel officer seeking information about a potential can
didate, certainly could not suggest that the omitted periods were in any way less
satisfactory than those reported on, since unfavourable reports weresummarized
as well as favourable ones. Thus an incomplete record, while not suitab1e for
the purpose for whîch it was circulated-to stimulate offers of employment
would not by itself leave a negative impression.
26. In his Application to the Administrative Tribunal, Mr. Fasla briefly and
in a somewhat different context (i.e., to establish prejudice) touched on two
more points that might be con~idered as bearing on his daim for damage to
professional reputation. ln April 1967 his supervisor recommended him for a
post with FAO, but after some initially promising correspondence the FAO
indicated that the positions for which Mr. Fasla might be considered were no
longer open (doc. No. (3), Annexes 16-19); he suggested to the Tribunal,
without any proof at ail, that this rather routine contretemps in any personnel
office indicated some malevolent intervention on the part of the United
Nations (ibid.,Annex 86, paras. 31 and 147).
Secondly he asserted, again without submitting any proof to the Tribunal,
that a senior UNDP official had made derogatory and discriminatory comments
about him and had even shown misleading items from his Official Status File40 APPLICATION FOR R.EVIEW
in order to discourage an offer of employment from the Yemen Planning
Board (ibid., para. 72); however, aside from failing to substantiate this incident
in any way. Mr. Fasla asserted (ibid., para. 147) that it constituted a violation
of Staff Regu\ation 1.5 (doc. No. (14)), which prohibits staff members from
communicating "any information known to them by reason of their official
position which has not been made public, except in the course of their duties
or by authorization of the Secretary-General". Thus, even if this incident ac
tually did take place, Mr. Fasla himself conceded that the UNDP official acted
privately and improperly, rather than by authorization of the Secretary-General.
2. Dm THE TRIBUNAL EXERCJSE ITs JURISOICTION
WITH RESPECT TO THE CLAIM FOR DAMAGES?
(a) The Trihunal's Decision with Respect to Ille Claim for Damages
27. The Administrative Tribunal took account of Mr. Fasla's daim for
damages in respect of his professional reputation and career prospects, as it
included that daim in its recitation at the beginning of its Judgement No. 158
(doc. No. (!l), p. 2).
28. ln its lengthy analysis of the case the Tribunal dealt briefly with certain
procedural and peripheral matters (see para. 17 above). But the bulk of the
Judgement (doc. No. (11), pp. 15-20) is devoted to the principal issue in the
case: the nature and extent of UNDP's responsibility to assist Mr. Fasla in
finding a new position, the appropriateness of the means used by UNDP to
carry out such responsibility, the harm suffered by Mr. Fasla through any
deficiencies in these means, and finally the compensation to which he should be
entitled by reason of any such harm. ln making this analysis the Tribunal was
obviously not assisted by the fact that the relevant claims made or measures
requested by Mr. Fasla to a considerable extent duplicated or at least substan
tially overlapped each other: thus he requested the invalidation of a Perîodic
Report or a\ternatively payment of two years' salary (see subpara. 15 ( f J
above), and also compensation amounting to two years' pay for UNDP's
violation of the Administrative Instruction regarding Periodic Reports (ibid.,
15 ( h)), as well as correction and completion of his Fact Sheet with all the re
quired Periodic Reports or once more two years' salary as damages (ibid.,
15 (e)); he also requested a retroactive two-year extension of his fixed-term
contract or three years' net salary (ibid., 15 ( cl)),plus further serious efforts
to plac_ehim elsewhere (ibid.,15 (g )) or two years' salary, plus two yearn'
salary as compensation for the previous failure to make a serious effort (ibid.,
15 (i))plus five years' salary as compensation for the prejudice that had been
displayed against him (ibid.,15 (j)),plus symbolic compensation for emotional
and moral suffering (ibid., 15 (k)), plus compensation for the damage inflicted
on his professional reputation and career prospects as a result of the use of an
incomplete and misleading Fact Sheet (ibid., 15 (n)). Thus requests for spe
cific remedies (always with an alternative of compensation) were admixe<lwith
demands for damages for alleged injuries. Altogether, Mr. Fasla daimed a
total of 30 years' net base salary (plus additional amounts under the daims
listed in subparagraphs 15 (k), (m) and (b') above), of which no Jessthan 23
years would pertain to the interrelated q:implex of the principal c\aims.
29. Faced with this web of inseparable and largely duplicative requests for
monetary and other relief, the Tribunal, as is its wont and duty, analysed the
substantive issues raisen by Mr. Fasla's application in terms of "allegations of STATEMENT OF THE SECRETARY•GENERAL 41
non-observance" made pursuant to paragraph I of article 2 of its Statute, and
of the remedies requested and available under article 9. In parts III-XIII of the
Judgement it discussed the various questions of responsibility, fault and
damage, and attempted ta fashion appropriate remedies within the limits of its
jurisdiction. In doing soit did not give a point·bY·point analysis of each heading
under which a different relief was claimed. Indeed, Mr. Fasla's Application
to the Tribunal also did not attempt such an exercise, but instead concentrated,
as did the Tribunal later, on the validity of the Periodic Reports, the effort to
provide further employment, and the evidence of prejudice; thus no specific
mention is made in his explanatory statement (doc. No. (3), Annex 86, paras.
124-156) of the daim that Mr. Fasla now asserts the Tribunal disregarded.
30. The Tribunal thus evaluated al! the issues as to which evidence and/or
arguments were presented by Mr. Fasla, and concluded that the belated
Periodic Report for June 1968 to March 1969 (Sierra Leone and Yemen) be
invalidated and that compensation of six months' salary be awarded. ln fixing
this compensation it took into account the type and amount of harm that Mr.
Fasla was able to demonstrate he had suffered or might suifer, including the
considerations discussed in paragraphs 24.26 above. To the extent that Mr.
Fasla's daims exceeded what the Tribunal considered proper, it explicitly
decided that these "requests are rejected" (doc. No. (11), part XVJII.4 of the
Judgement). lt thus fu!Iy exercised its jurisdiction in respect of the daims
presented to it.
31. Even if, by applying a different measure of damages than that used by
the Tribunal, the award were considered as not fully compensatory, this would
still not constitute a failure on the part of the Tribunal to exercise itsjurisdiction,
as that term is normalty understood and especially as the General Assembly
understood it in formulating article 11of the Statu te of the Tribunal (see paras.
95.96 below).
(b) The Tribunal's Obligation to Award Monetary Compensation
32. The power of the Administrative Tribunal to award compensation derives
from paragraph I of article 9 of its Statute (doc. No, (13)). Jt is there specified
that while the normal relief to be ordered by the Tribunal is the rescinding of
the decision contested or the specific performance of the obligation invoked,
the Secretary-General may decide that in the interests of the United Nations an
applicant should instead receive monetary compensation. Such compensation
is thus conceived of as an alternative to specific performance, to be chosen, not
at the discretion of the Tribunal or of the applicant, but solely of the Secretary
General. The amount of compensation that may be granted is also limited by
that provision of the Tribunal's Statute (to the equivalent of two years' net base
salary), though provision is made for increasing this amount under exceptional
circumstances. .
33. Mr. Fasla was mistaken in arguing, in his Application to the Committee
for Review, that paragraph 3 of article 9 of the Tribunal's Statute obliges the
Tribunal, without allowing it any discretion, to award compensation where a
wrong cannot be remedied by the relief provided for in paragraph I of that
article (doc. No. (3), para. A.6). Jnstead it is clear from the text of paragraph 3,
in part\cular in its·French version ("Lorsqu'il y a lieuà indemnité, celle-ci est
fixée par le Tribunal"), that the only purpose of the clause in question is to
specify that while it is the Secretary.General who is empowered to determine
the circumstances under which compensation should be paid rather than specific
relief granted, it is theribunal that determines the amount of such compensa-42 APPLICATION FOR REVIEW
tion. This interpretation is also supported by the history of article 91.Thus the
only circumstances under which monetary compensation may be awarded by
the Tribunal are those specified in paragraph I of article 9 of its Statute. '
3. DID THE TRIBUNAL COMMIT ANY FUNDAMENTAL ERROR IN PROCEDURE
WHICH HAS ÜCCASlONED A fAILURE OF JUSTICE WITH RESPECT TO THE CLAIM
FOR DAMAGES?
(a) The Tribunal's Procedure
34. The Administrative Tribunal considercd Mr. Fasla's Application in
gencral and the daim relating to damages in respect of professional reputation
and career prospects in particular, strictly according to its Statute and Rules
(doc. No. (13)). Mr. Fasla was represented by counsel provided to him by the
United Nations. He presented lcngthy statements in support of his Application
and the Supplement thereto, and later in commenting on the Replies by the
Secretary-Gencral, and these statements were considered by the Tribunal in
formulating its Judgement. No request for oral procccdings or for the examina
tion of witnesses or experts was made, nor did the Tribunal consider any such
stcps necessary. Mr. Fasla has raised no objection with respect to these aspects
of the Tribunal's consideration of his appeal.
35. Mr. Fasla rcquested the Tribunal to ordcr the production of three docu
ments (subparas. 15 (Ci)-c) above). Of these one was submitted in full, one
in relevant extract, while one could not be located by UNDP (doc. No. (11),
part liof the Judgement). The missing document, as described by Mr. Fasla, is
at best marginally relevant to his daim for damages in respect of his professional
reputation, since it merely would provide some support for a possible favour
ab!e assessment of ~'Ir. Fasla's service in Yemen-as to which no evaluation,
and in particular not the unfavourable one later prepared by his supervisor,
was included in the Fact Sheet circulated by UNDP. In any event, in his Ap
plication to the Committee for Review, Mr. Fasla did not raise any question or
objection in this regard.
(b) Thc Tribunal's Obligatîon ta Expfain the Basis on
Which /tFixes Amounts of Compensation ta Be Paid
36. As appears from his Application to the Committee for Review (doc.
No. (3), part 111.D), Mr. Fasla's complaint that the Tribunal committed a
fundamental errer in procedure rests principally on his assertion that the ·
Tribunal did not fully consider his daim for damages in respect of professional
reputation. This assertion isanswered in section II.A.! abovc, which indicates
that the Tribunal plainly intended to and did exercise its jurisdiction with
respect to that claim. lt remains to consider whcther the factthat the Tribunal,
while referring to the daim at the beginning of its Judgement, failed to mention
' See in particular the Report of the Secretary-Gcneral cxplaining the first draft in
which substantially the present language appears, A/986, para. 5 (b) and Annex I,
draft Article ID,reproduecd in Official Record~o/tlre General Assembly, Nimh Session,
Annexes, agenda item 44, p. 146, and included as document No. (60) in Part I of the
dossier presentcd to the Court in relation to the Advisory Opinion of 13 July 1954
(I.C.J. Reports 1954,p.47). STATEMENT OF THE SECRETARY•GENERAL 43
it explicitly in the concluding portion thereof, constituted a fundamental error in
procedure which has occasioned a failure of justice.
37. Paragraph 3 of article 10 of the Tribunars Statute (doc. No. (13)) re·
quires that: "The judgements sha\l state the reasons on which they are based."
The Tribunal did comply with this requirement, in analysing at considerable
length the various daims of Mr. Fasla, induding in particular the complex
of which the claim for damages in respect of professional reputalion constituted
a part (see paras. 17 and 29-30 above). Neither the Statute of the Tribunal nor
any general principle of Jaw requires that a Judgement mention and deal ex
plicitly with every daim, question or argument induded in an application; a
reasoned statement indicating the Tribunal's understanding and disposition of
the issues presented to it is amply sufficient.
38. ln interpreting the above-mentioncd provision of the Tribunal's Statute,
it should be noted that that instrument nowhere requires or even provides for
the submission of individual daims. The requirement to do so was established
by the Tribunal itsclf, in Scptember 1962, when it amended Article 7 of its
Ru\es 1to require specific listing of individual pleas. Thus the statutory require
ment for reasoned judgemcnts should not be read as requiring specific reasons
stated with respect to cvcry daim or plea.
39. In panicular, the Tribunal is not required to e)(_plaineKplicitly the basis
on which it fixes amounts of compensation to be paid. Such a requirement is
on\y specified, in paragraph 1of Article 9 of its Statute, for the contingency that
it should order, in a case it considers exceptional, an indemnity payment higher
than the usual Jimit of two years' net base salary specified by that paragraph.
The fact that such a statcmcnt is cxplicitly required for that circumstance sug
gests that the General Assembly die! not consider it necessary or appropriate
for cases in which lesser amounts of compensation are fixed.
40. But even if it wcre considcrcd that the Tribunal did not explain its dis
position of the daim in question in sufficient detail, it cannot be asserted that
this "occasioned a failure of justice" within the meaning of paragraph I of
article 11 of its Statute. To corne within the purview of that provision a fault
must be one that prevents one or bath of the parties from effcctively presenting
thcir case, or permits the introduction into the processes of the Tribunal of
some external, prejudicial clement. In this connection it might be noted that if
the General Assembly had wished to make a failurc ta state sufficiently the
reasons for a Judgement a ground for review, it could have done so by induding
this as an appropriate ground in the list included in paragraph 1 of article 11 of
the Tribunars Statutc-as the Exccutive Directors of the International Bank
for Reconstruction and Devclopment did in article 52 (1) (e) of the Convention
on the Settlement of lnvestment Disputes between States and Nationals of
Other States (United Nations, Treaty Series, Vol. 575, p. 159).
(c) The Adequacy of the Award
41. Mr. Fasla also asscrts that the Tribuna!'s failure "to utilize its established
procedure and method of dealing with applications" resulted in a "woefully
inadequate judgement" (doc. No. (3), para. IJJ.D.1). White it is truc that
compared to his total daims for up to 30 years' net base salary, the six months'
actuaily awarded by the Tribunal appears "woefully" small, questions of the
1 Doc. No. (13), an earlier version of which appears as doc. No. (18) in Part I of the
dossier presented to the Court in relation toits Advisory Opinion of l3 July 1954.44 APPLICATION FOR REVIEW
adequacy of the Tribunal's judgement do not involve any question of its
procedure, nor are they otherwise reviewable under article 11 of its Statute.
42. Jn this connection it should be recalled that the General Assembly itself
incorporated in the Statute a standard to limit and guide the Tribunal in award
ing monetary compensation. The Assembly established a normal maximum
limit of two years' net base salary. Only in cases that the Tribunal considers
exceptional may it exceed that limit, and it must support its reason for doing so
by a special statement. The Tribunal's award in the instant case thus appears to
have been properly guided by the standard established by the General Assembly,
rather than by the formidable demands of Mr. Fasla.
(d) Summary
43. The Tribunal's procedure in dealing with Mr. Fasla's daim for damages
in respect of his professional reputation and career prospects complied fully
with üs Statute and Rules, as well as with the general principles governing the
conduct of judicial organs. lt stated the reasons for the Judgement in question
at considerable length, and any failure to deal sufficiently specifically with the
daim in question could in no event have occasioned a failure of justice. While
the amount awarded may have disappointed Mr. Fasla, this issue is not one
as to which the General Assembly has authorized a request for an advisory
opinion-particularly since the amount in question appears to be proportionate
to guidelines establîshed by the Assembly itself.
B. Claim for Award of Costs Incurred in the Previous Proceedings
1. FACTUAL AND LEGAL ISSUES
44. On 18 May 1970, after the Joint Appeals Board had taken Mr. Fasla's
first appeal under advisement but before it issued its Report on Case No. 172,
Mr. Fasla's counsel called the Board's attention to the fact that Mr. Fasla had
incurred about $500 in expenses in presenting that appeal: $300 for roundtrip
travel from San Francisco to New York to be present at the hearings of the
Board on 11 and 13 May, $120 for hotel and meals in New York, and $80 for
long-distance telephone calls from Caiifornia to the Secretary of the Board and
to his counsel. While recognizing that there was no provision for the United
Nations to caver such costs, counsel suggested that if the Board should find in
favour of Mr. Fasla on the substance of his appeal, it might also recommend
that UNDP reimburse these expenditures for reasons of equity. The Board did
not, however, make any recommendation on this subject.
45. In his Application to the Administrative Tribunal, Mr. Fasla included
théfollowing claim (doc. No. (3), Annex 86, para. 8 (m)):
"(m) Payment to the Applicant of the sum of $1,000.00 for expenses in
view of the fact that, although the Applicant was represented by a
member of the Panel of Counsel, the complexity of the case neces
sitated the Applicant's travel from California to New York in May
1970 (see ANNEX 2, para. 6) as we11as frequent transcontinental
telephone calls to the Applicant's Counsel before and after that
date."
He did not, however, support this daim through any evidentiary annexes,
or through any arguments in the text of the Application. STATEMENT OF THE SECRETARY-GENERAL 45
46. ln his Reply, the Secretary-General opposed this claim on the ground
that no rule or regulation provided for such reimbursement, no agreement had
been concluded concerning such expenses, and no administrative practice
would support such payments (doc. No. (3), Annex 87, para. Vll.1).
47. The Tribunal concluded that(doc. No. (11), part XVll of the Judgement):
"XVU. The Applicant requcsts payment of one thousand dollars for
exceptional costs in preparing the case. Since the Applicant had the as
sistance of a member of the panel of counsel, the Tribunal finds this request
unfounded and rejects it."
48. In his Application to the Committee for Review, Mr. Fasla indicated
that he had spent $1,530 from December 1969 to 28 April 1972 in preparation
for the Joint Appeals Board and the Administrative Tribunal (doc. No. (3),
Annex 92, part A). In the supporting breakdown of costs he indicated $250
expended for typing and copying, $360 for the round-trip from California to
New York, $240 for eight days of living expenses in New York in April-May
1970 while consulting counsel, and S680 for telephone calls from California to
New York, Rome, Beirut, etc., for legal consultations and the collection of
documents.
49. Except at the initiation of his first appeal in the Joint Appeals Board,
Mr. Fasla was represented throughout both proceedings in the Board and
before the Administrative Tribunal by a lawyer chosen by him from the Sec
retariat's Panel of Counsel in Disciplinary and Appeals Cases. Consequently
that counsel was assigned to do so as part of bis official duties, and received the
necessary secretarial and other supporting services. This assistance was available
to Mr. Fasla gratis.
2. DID THE TRIBUNAL EXERCISE ITS JURISDICTION
WITH RESPECT TO THE CLAIM FOR CoSTS?
(a) The Tribunal's Jurisdiction to Award Costs
50. No provision of the Tribunal's Statute (doc. No. (13)) explicit1y author
izes itto award costs. The only provision for it to fix amounts of compensation
to be paid to applicants· under certain circumstances (i.e., article 9) neither
mentions nor is applicable to the award of costs.
51. Consequently, when the Tribunal awarded costs in its very first sub
stantive judgements', the Acting Secretary-General requested the Tribunal to
hear arguments on the question of its authority to assess costs and on the nature
and amount of such costs (doc. No. (19)). The Tribunal thereupon considered
the matter in plenary session, taking into account a document reciting two
precedents for such awards by the League of Nations Tribunal (doc. No. (20)),
a memorandum by the Legat Department of the United Nations (doc. No.
(21)), and a note by the Vice-President of the Tribunal (doc. No. (22)).
52. On 14 December 1950 the Tribunal decided (as recorded in its Statement
of Policy of 18 December 1950-doc. No. (23)), that by creating the Tribunal
the General Assembly must be assurned to have granted it the powers necessary
to carry out the objectives of the Assembly, including the power to preserve the
equitable rightsof the interested parties by granting compensation for necessary,
1 Judgements Nos. 2 and 3, Aubert and 14 Others and Hall against The Secretary
General of the United Nations (AT/DEC/ 1 to 70pp. 3 and 7).46 APPLICATION FOR REV!EW
reasonable and unavoidable costs of litigation. However, in view of the sim
plicity of the proceedings of the Tribunal, it would consider awarding costs
only in cases presenting special difficulties, to the extent such costs are de
monstrated to have been:
(a) unavoidable;
(b) reasonable in amount; and
(c) in excess of the normal expenses of litigation before the Tribunal.
The Tribunal thus acknowledged that its authority to award costs is at best
strictly circumscribed.
53. Shortly afterwards the Board of Auditors of the United Nations took
note of the award of costs in the Aubert et al. case (cited in footnote on p. 45)
and of the Tribunal's subsequent general decision; the Board concluded that
costs awarded by the Tribunal within the stated limitations might be treated
by the Secretary-Gencral asex gratia payments 1•The Advisory Committee on
Administrative and Budgetary Questions (ACABQ), in its second report to the
General Assembly in 1951, concurred in the view expressed by the Board of
Auditors as to the ex gratia nature of such payments, but expressed the further
view that these payments should have been deferred pending specific authoriza
tion of the General Assembly 2• By resolution 571 (VI) of 7 December I95l
(summarized in doc. No. (24), para. 3) the General Assembly accepted the
report of the Board of Auditors and explicitly concurred in the observations of
ACABQ. To the extent that this concurrence confirmed the authority assumed
by the Tribunal in respect of the award of costs, ît also reinforced the limitations
stated by the Tribunal and noted by the Auditors.
54. Though article 6 of its Statute authorizes the Tribunal to establish mies,
it never promuigated îts decision of 14 December 1950 in that form. Never
theless (as discussed in para. 56 below), the Tribunal has frequently cited this
decision in explaining particular awards made in respect of daims for costs.
(b) The Decision in the Instant Case
55. The Tribunal, in the instant case, dld not fail ta exercise jurisdiction with
respect to the daim for costs. Tt took explicit cognizance of the daim and
rejected it as unfounded (see para. 47 above). In this rejection the Tribunal
neither explicitly stated nor implied that it considered that itlacked competence
to decide in Mr. Fasla's faveur; it decided against him on the merits, as the
Tribunal saw them, and following the considerations discussed in the section
below.
3. Dm THE TRIBUNAL COMMIT ANY FONDAMENTAL ERROR
IN PROCEDURE WHlCH HAS ÜCCAS!ONED A FAILURE OF
JUSTICE WITH RESPECT TO THE CLAIM FOR CosTS?
(a) The Tribunats Practice in Awarding Costs
56. In stating its decision on whether or not to award costs in a given case,
the Tribunal has frequently referred, explicitly or by implication, toits decision
of 14 December 1950 and to the limitations set forth therein (see, for example,
Judgement Nos. 11, 12, 15, 18,28-38, 76and 123).
1 A/1800, paras. 17-19, reproduced in doc. No. (24), para. 1.
l A/1853, para. 369, reproduced in doc. No. (24), para. 2. STATEMENT OF THE SECRETARY·GENERAL 47
57. Except for statements re!ating toits competence in this area, the Tribunal
has not felt obliged to give lengthy explanations of the reason for making a
particular award or refusing to rnake one at ail 1.In one instance it explicitly
held that its mere failure to award (i.e., even to mention) costs ln an earlier
judgement should be deemcd as a refusai of such a daim 2•
58. Because of the brevity of the Tribunal's discussions concerning the award
of costs, the principles on which these awards have been based must, apart
from conformity to the 1950 policy statement, large!y be determined induc
tively from the awards themselves. The Tribunal makes no award when the
3
applicant is unsuccessful in his principal daim • Even when the applicant was
partiallyor fully successful, costs were not awarded where the criteria established
on 14 December 1950 were not deemed met 4•Finally, it appears that the Tri
bunal does take into account the extcnt to which the applicant was successful in
his principal daim, though in this respect monetary amounts are not the only
relevant consideration.
(b) The Factors in the Instant Case
59. It is dear from the practice, summarized above, that the Tribunal takes
most seriously its determination of 14 December 1950 that if costs are to be
awarded they must be dernonstrated "to have been unavoidable", "reasonable
in amount", and in excess of "the normal expenses of litigation before the
Tribunal". Plainly it is for the applicant to establish that his claim falls within
each of these criteria. But in the instant case, except for the statement of the
daim (see para. 4Sabove), Mr. Fasla made no attempt to establish these points,
and especially not the reasonableness of the daim.
60. Mr. Fasla's Statement of Costs submitted to the Commîttee on Appli
cations for Review(doc. No. (3), Annex 92, Part A) suggests that with respect to
at least a substantial part of his daim he would have had ditliculty in estab
lishing reasonableness. His expenses for long-distance telephone calls (S680
claimed) are, for instance, over three times the amount aUocated for such calls
to the entire Office of Legal Affairs of the United Nations for a full year. Nor
does he exp!ain the increase in the daim for travel and subsistence for the April
May 1970trip from California to New York, from $420 as originaUy submitted
to the Joint Appeals Board (see para. 44 above) to $600 (sec doc. No. (3),
Annex 92, paras. A.2 and 3).
61. Nor has Mr. Fasla sought to cstablish that his $250 costs for ''typing and
copying" were unavoidablc, since his counsel had access to the necessary
secretarial and printing services of the Secretariat (sec para. 49 above).
62. More importan Jy, it was a\ready clear from Mr. Fasla's daim, as
presented to the Tribunal, that the expenses claimed did not relate prirnarily to
the proceeding before the Tribunal, which was initiated only in October 1970,
but to the first proceeding in the Joint Appeals Board in the sprîng of that year.
This is even more evident in the Statement of Costs presented to the Committee
on Applications for Review (doc. No. (3), Annex 92, paras. A.2-4), considered
1See, for example, Judgement Nos. 2, 3 (where some detail had to be given since
the award related to 16 separate applicants),11, 19,28-38,48, 52, 76 and 123.
2
Judgement No.men68,oButsara against Tire Secretary-Generat of the United Nations.se
' Sec, for example, Judgement Nos. 19,48, 50, 52, 54,60 (by implication), 66 (by
implication), 71 (by implication); 81 (by implication) and 129.
• See, for example, Judgcment Nos. 11 and 12.48 APPLICATION FOR REVIEW
in conjunction with the original request to the Joint Appeals Board (see para.
44 above), from which it appears that no less than $680 of the daim related to
the Board proceeding, even on the doubtful assumption that $600 for telephone
calls and $250 for typing and copying were all incurred in the Tribunal pro
ceeding.Neithe.r theTribunal's decision of 14December 1950nor its subsequent
practice suggests that it is prepared to make any awards for ex.penses incurred
in stages of a proceeding that did not relate to the Tribunal itself, and indeed
such awards would depart from the principles on which the general decision
was founded (see doc. No. (32), paras. 3 ( c),4 and 5). Therefore the Tribunal
bas repeatedly refused to award costs incurred in other stages of a proceeding 1•
63. Finally, Mr. Fasla asserted, in presenting this daim to the Cornmittee
on Applications for Review, that "The Tribunal in this case substantiated in
large measure the claims of the Applicant" (doc. No. (3), para. III.B.7). But an
examination of Judgement No. 158 reveals that this is not so: in his various
substantive daims Mr. Fasla requested various types of relief from the Tribunal
with the alternative of compensation, or he requested straight compensation,
amounting in ail to the equivalent of 30years' of net base salary (see subparas.
15 (d}-(j), (/), (n), (a'), and (c'J); of these daims the Tribunal in effect
allowed one (the invalidation of a Periodic Report, for which Mr. Fasla had
stated the alternative measure of two years' salary), plus an additional six
months' salary-in effect rejecting 27-!-years' of salary claimed as direct or
alternative compensation, amounting to a rejection of ll/12ths of the daims
quantified in terms Mr. Fasla established himself; in addition, the Tribunal in
substance rejected the remaining substantive claims (ibid., 15 (k)and (b') (as
to the latter, see section11.C. below)).
(c) Summary
64. The Tribunal's brief dismissal (doc. No. (11),part XVII of the Judgement)
of Mr. Fasla's claim for the award of costs is consistent with its practice,
adopted in the light of its Jimited competence in this area, of makîng such
awards only when the expenses to which they relate are demonstrated by the
applicant to meet three stringent criteria. As the United Nations had supplied
Mr. Fasla with counsel who had access to secretarial assistance, and as only a
small fraction of the substantive daims raised in the application were accepted
by the Tribunal, the denial of the claim for expenses is consistent with the Tri
bunal's practice. Most of these expenses were in any event ineligible for sub
mission to the Tribunal because they had been incurred at a previous stage in
the proceeding, and other portions were plainly unreasonable.
C. Claim for Recalculation of Salary and Allowances
1. FACTUAL AND LEGAL ISSUES
65. The third claim as to which Mr. Fasla requested the Committee on Ap
plications for Review to address the Court, related to his salary and a!Iowances
during his period of service in Yemen (see subpara. 15 ( b') above or para. 71
. •_See Judgement No. 15, Davidso,t against The Secretory-General of Jhe Uniled
Nations (AT/DEC/71 to 86, p. 28, at p. 34, para. 9); JudgemenNo. 114, Khederia11
against TheSecretary-Ge11erao/ f the U11itedNatio11s(A/DEC/114, p.23, part XVIII);
see also JudgernenNo. 15, Robinsonagainst TheSecretary-Generalof the U11itedNations
(AT/DEC/J to 70, p. 43, at p. 53, para. 29 (4)). STATEMENT OF THE SECRETARY-GENERAL 49
below). For an analysis of this daim it isuseful to understand the basis on which
the pertinent United Nations (including UNDP) salaries and allowances are
normally calculated for Professional category staff members:
(a) Ail staff members in the Professional category receive, wherever they may
serve, a base salary dependent on their level (P-1 to P-5) and step wîthin
that level, in accordance with a scale set forth in the Staff Regulations (doc.
No. (14), Annex 1, para. 3), subject to staff assessment (ibid.,Regulation
3.3).
(b) In order to adjust the income of staff members serving in various posts to
the varying costs of living at such posts, a system of adjustments has heen
established: each post is from timè to time classified according to the level
of its then prevailing cost-of-livingindex in relation to that which prevailed
in the city that served as the base point for the base salary determination;
for each such classification a Post Adjustment is determined, depending
on the level and step of the staff member, and on whether or not he has
dependants (ibid., Annex I, para. 9).
(c) ln addition, certain payments are made or benefits granted according to
the length of a staff member's appointment and assignments to a given
post:
(i) if the appointment and assignment (or extensions thereof) are expected
to be of a long duration (generally a minimum of two years), the
United Nations will usually arrange for the transportation of a staff
membe'r'shousehold goods and persona! effects to such post, and for
their removal at the end of the assignment (ibid., Staff Regulation 7.2
and Staff Rule 107.27-!07.28, doc. No. (15));
(ii) if the assignment is expected to be of intermediate duration (generally
from one to two years, but possibly shorter or longer, up to five
years), and no payments are made for moving household goods, an
Assignment Ailowance is paid (at a rate depending on the staff
member's grade and dependency status, Staff Rule !03.22) to com
pensate him, in effect, for the non-availability of his normal furnish
ings by enabling him to make arrangements, commensurate with the
expected length of his stay at the post, for securing other necessary
furnishings (e.g., by renting a furnished apartment);
(iii) if the assignment is expected to be of a short duration (generally less
than a year), then instead of the Assignment Allowance a staff member
receivesSubsistence Payments (Staff Rule 103.7 ( c) (ii)) to enable him
to make more expensive arrangements on such a basis (e.g., by staying
in a hotel).
(d) Also, on moving to a new post on an intermediate·or long-term basis an
Installation Grant (Allowance) is paid (Staff Rule !07.20) to cover the
extraordinary living expenses incurred by a staff member when arriving
at a new post (e.g., stay in a hotel) while he makes his arrangements for his
longer residence; no such payment is made in case of short-term assign
mentsfor whichSubsistence Payments are made, sincethere isnoexpectation
that the initial expenses will differ markedly from those during the re
maining period.
66. Naturally these general principles are expressed in precise and to some
extent rather detailed rules, the most pertinent ones of which are set out in full
below. In addition, because the circumstances of individual staff members50 APPLICATION FOR REVIEW
difîer so widely in respect of their precise expectations on entering on a parti
cular post, the place to which they expect to move from there and the basis of
such move, the number and types of their dependants and whether any or all
of them join them at a post or for some reason live separately in a more or less
expensive location, etc., no rigid set of rules can adequately cover all contingen
cies and thus a wide measure of discretion has been left to or reserved by the
Secretary-General.
67. In the instant case, Mr. Fasla was as of IS September 1968 reassigned
from Sierra Leone to Yemen for a term that was not expected to end before
the expiration of his then current appointment: 31 December 1969, some 1St
months hence. Consequently he received:
(a) an Installation Allowance pursuant to Staff Rule 107.20 (a) (doc. No.
(lS));
(b) an Assignment Allowance, at the dependency rate of $1,200 per annum,
pursuant to Staff Rule 103.22 ( a} (i):
''Assignment AUowance
(a) Subject to the provisions of Rules 103.21and 107.27,an assignment
allowance shall be paid to a staff member in the Professional category
and above who is appointed or assigned to a duty station outside his
home country for a spccified period of service under the following circum
stances:
(i) The allowance will be authorized when the fixed-term appointment
or temporary assignment is for a period of one year or more but less
than two years;
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Post Adjustment, still continuing at the New York rate where he had been
stationed before his assignment to Sierra Leone and where his family was
then still staying, pursuant to Staff Rule 103.7 (e) (i). However, when his
family joined him, his Post Adjustment was, as of 1 December 1968,
reduced, pusuant to Personnel Directive PD/8/60/Add.1 (doc. No. (18)),
to the rate appropriate for Yemen (approximately 15 per cent. lower than
the New York rate), in accordance with Staff Rule 103.7 (a):
"Post Adjustmenl
(a) Subject to paragraphs ( d) and ( e) below, post adjustments under
Annex 1, paragraph 9, of the Staff Regulations shall be applied in accord
ance with the schedules provided below in the case 0f staff members in the
Professional category and above who are assignea to a duty station for
one year or more."
68. After his recall from Yemen in May 1969, Mr. Fasla asserted, inter a/ia,
that since his stay in Taiz had in fact amounted to only some eight months,
the various payments made to him under the above headings should have been
recalculated as if the assignment had from the beginning been a short-term
one, to which the following provisions would have applied:
(a) Staff Rule 103.7 (e) {ii):
"(e) While the salary of a staff member is normally subject to the post
adjustment of his duty station during assignments for one year or more,
alternative arrangements may be made by the Secretary-General under
the following circumstances: STATEMENT OF THE SECRETARY-GENERAL 51
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) When a staff member is assigned to a duty station for less than one
year, the Secretary-Genera! shall decide at that time whether to apply the
post adjustment applicable to the duty station and, if appropriate, to pay
installation grant under Rule 107.20 and assignment allowance under
Rule 103.22, or, in lieuof the above, to authorize appropriate subsistence
payments.
(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) Staff Rule 103.22 (c):
"( c) When a staff member is assigned to a duty station for Jessthan one
year, the [assignment] allowance will normally not be paid. However,
appropriate subsistence payments will be made where no assignment
allowance is payable."
69. UNDP refused to accede to this demand, primarily on the ground that
Mr. Fasla had not fqrmally been reassigned from Yemen but during the con
tinuation ofhis home and special leaves was still maintained at that duty station
(as iscustomary when staff members are on leave). Mr. Fas!a thereupon filed
his second appeal with the Joint Appeals Board (see paras. 12-l3 above). The
Board summarized the contentions of the parties in its Report of !8 January
1971 to the Secretary-General (doc. No. (3), Annex 67) and held in pertinent
part (ibid.,paras. 40 and 4l):
"40. The Board finds that the appellant's assignment as Assistant
Resident Representative in Yemen was intended to continue for more
than one year and that his salary and allowances were correctly deter
mined on that basis. The Board finds further that when it was decided in
May 1969 that the appellant would go on leave while a search was made
for a new assignment for him, the appellant was transferred to Head
quarters and his duty stationwas changed to New York....
41. In the absence of any guidance in the Staff Regu\ations or Rules or
in administrative instructions as to whether salary and allowances should
be recalculated when an assignment for one year or more is eut short, the
Board does not make any recommendation for the readjustment of the
appellant's salary and allowanccs for the period during which he served
in Yemen. The Board recomrnends, however, that the Secretary-General
consider making an ex gratia payment to the appellant in the amount of
any tosses that he can show that he has suffered as a consequence of his
precipitate recall from Yemen."
One of the three members of the Board dissented on this point (ibid.,p. 11,
para. 2):
"2. However, l cannot agree with the majority view of the Board, re
corded in paragraph 41 of its report, that no recommendation should be
made in favour of retroactive adjustment of the appellant's salary in
Yemen, ln my opinion, a c\ear case for such an adjustment has been
established by the statement of the representative of the Secretary-General
which affirms that the UNDP would have recalculated the appellant 's
salary and allowances if he had been assigned to another post within one
year of his assignment to the Yemen post (paragraph 34 of the report). 1
am supported in this opinion by the fact that the UNDP has not attri-S2 APPLICATION FOR REVIEW
buted to the appellant the responsibility for his abrupt recall. Under
the circumstances, 1 must regard the Board's recommendation of a
conditional ex gratia payment as neither adequate nor equitable to the
appellant."
70. The Secretary-General accepted the recommendation of the majority
of the Joint Appeals Board and decided that "sympathetic consideration be
given to such daims as [Mr. FaslaJ may be abJe to substantiate for financiaJ
tosses... which occurred as a result of [his) recall to Headquaners on short
notice in May 1969" (doc. No. (3), Annex 68).
71. Mr. Fasla, dissatisfied with this decision, submitted bis SupplementarY
Application to the Administrative Tribunal, which in pertinent part (doc.
No. (3), Annex 89, para. 7 (b)) reads:
"(b) Recalculation .by the Respondent of the Applicant's salary and
allowances in Yemen on the basis of the actual duration of the Applicant's
assignment there, and payment to the Applicant of the dilference between
the recalculated amount and the amount the Applicant received."
72. The Tribunal concluded (doc. No. (11), part XV of the Judgement):
"XV. The Applicant maintains that the allowances he received in
Yemen should bè recalculated on the basis of the subsistence allowances
which he contends are payable because, owing to the Respondent's action,
his stay in that country was less than one year, contrary to the original
intention.
According to Staff Rule 103.22 (c), 'When a staff member is assigned
to a duty station for less than one year, the allowance will normally note
paid. However, appropriate subsistence payments will be made where no
assignment allowance is payable'. The Tribunal observes that this text
leaves the Respondent a margin of discretion with respect to the payment
of an assignment allowance: itis possible for the allowance tobe paid for
a stay of Jess than one year. In addition, the text lays down a very strict
rule: the subsistence allowance is payable only where an assignment
allowance has not been paid. In the present case, however, the Applicant
received an assignment allowance and is therefore not entitled, under the
Staff Rules, to a subsistence allowance.
Following the second report of the Joint Appeals Board, the Respondent
agreed to make the Applicant an ex gratia payment in the amount of any
fossesthat he couIdshow he had sufferedas a result of his precipitate recall
from Yemen. Since the Applicant maintained his daim to a subsistence
allowance, he did not avail himself of that opportunity. The Tribunal
considers that, in view of the above decision concerning the subsistence
allowance, the Applicant is entitled to take advantage of the possibility
offered by the Respondent within a reasonable period of time from this
judgement, and that this périodmust be fixedat two months."
It accordingly decided (ibid., partXVIII, para. 3):
"3. Any requests for payment made in accordance with paragraph XV
above shall be submitted, together with the necessary supporting evidence,
by the Applicant to the Respondent within a period of two months from
the date of this judgement ;". STATEMENT OF THE SECRETARY-GENERAL 53
2. Dm THE TRIBUNAL EXERCISE hs JURISDICTION
WITH RESPECT TO THE CLAIM FOR RECALCULATION?
(a) The Tribunal's Conclusions with Respect
to the Claim Jor Recalculation
73. The Administrative Tribunal gave extensive consideration to Mr. Fasla's
daim for the recalculation of his salary and allowances, and held against him
on the ground that it found that the pertinent Staff Rules left the Secretary
General a sufficient margin of discretion to decide as he did, and hence no
recalculation was called for (see para. 72 above). Nowhere did the Tribunal
suggest that it lacked authority to direct the Secretary-General to make such a
recalculation. Rather, it held that no obligation to make such a recalculation
existed,and therefore none would be ordered by it.
(b) The Correctness of the Tribuna/'s Conclusions
with Respect to the C/aim for Reca!cu!ation
74. ln challenging the Tribunal, M r. Fasla asserts (doc. No.(3),para. 111.C.3)
that the Secretary-General had an obligation to recalculate his emoluments
upon the recall from Yemen. This argument is actually not addressed to the
jurisdiction of the Tribunal but to the correctness of its conclusions, which,
not being among the reviewable issues Iisted in paragraph 1 of article 11
of ils Statute (doc. No. (13)),are by reason of paragraph 2 of article 10 of
that instrument "final and without appeal". Nevertheless, in view of the
earnestness with which this point is argued in the Application to the Committee
~n Applications for Review (doc. No. (3), part 111.C), it is analysed briefly
herein.
(i)The Secretary-Genera/'s Discretion in Determining
Emoluments Applicable to an Assignment
75. For the reasons indicated in paragraph 66 above, the Staff Regu!ations
and Rules leave the Secretary-General an ample area of discretion in determin
ing the types of emoluments payable to staff members on various lengths of
assignments. With reference to the payments here at issue, Staff Rule 103. 7 (e)
(ii)(reproduced in subpara. 68 (a)) clearly specifies that on assignments of Jess
than one year the Secretary-General shall decide whether to apply the Post
Adjustment of the new post and pay Installation and Assignment Allowances,
or to authorize Subsistence Payments. Moreover, Rule 103.22 (c) (reproduced
in subpara. 68 (b) above}-on which the Tribunal specifically relied-pro
vides that on assignments ·or less than one year, appropriate Subsistence
Payments will norma/ly (i.e., not neccssarily)be substituted for the Assignment
Allowance.
76. Against the clear language of these two rules indicating discretion, Mr.
Fasla asserts that nevertheless the practice of granting the higher payments has
become so fixed that the margin of discretion found by the Tribunal has dis
appeared. To reinforce this argument he assert.s that ifhe had initially been
offered the lower payments for an eight-month assignment, he might have
refused it (doc. No. (3),Annex 69, para. 17); but to have done so would have
brought him into conflict with Staff Regulation 1.2 (doc. No. (14)), according
to which "staff members are subject ... to assignment by [the Secretary-General l54 APPLICATION FOR REVIEW
to any of the activities or offices of the United Nations". In this connection
he als.o recalls the fact that on his short-term (five months) transfer from
Damascus to Beirut he was asked to signa waiver ofhis Subsistence Allowance
(doc. No. (3), Annex 72); however, that very incident indicates that the type of
emoluments to be paid in respect of a short-term assignment are not rigidly
determined by the Staff Rules or by practice, but are subject to accommodation
in particular circumstances.
(ii) The Secretary-Genera/"s Obligation to Recalculate
Emoluments for a Foreslrortened Assignment
77. The actual issue in the present case was not, however, the dctermin
ation of emoluments on initial assîgnment, but rather the possivle need to
recalculate them if the originally expected length of the assignment should
change.
78. As the Joint Appeals Board determined (doc. No. (3), Annex 67, para.
34), there is no Staff Regulation or Rule, or any administrative instruction that
provides for such recalculatîon or gives guidance about how and when it should
take place. lnstead, the applicable Staff Rules ail appear to provide plainly that
emoluments are determined on the basis of the nature of the assignment and its
expccted duration, rathcr than on the basis of its actual Icngth as ultimately
determined. Thus Rule 103.7 {a) (reproduced in subpara. 67 (c) above) pro
vides for the payment of Post Adjustment to staff members ·'who arc assigned
to a duty station for one year or more", rather than to pcrsons "stationcd"
for the requisite period. Staff Rule 103.7 (e) (ii) (reproduced in subpara.
68 (a) above) is even more explicit: "When a staff member is assigned to a
duty station for less than one year, the Secretary-General shall decide at rhat
rime" the pattern of emoluments to be paid. Similarly Rule 103.22 (reproduced
in part in para. 68 (b) above) makes itclear that the paymcnt of Assignmcnt
Allowances depends on the length of the "assignment" or "appointment".
Finally, Rule 107.20 makes the Installation Grant payable ''on an assigmm.>111
expected to be of at least one year's duration··.
79. Mr. Fasla relies, in the face of thcse clear statements in the Staff Rules
that emoluments dcpcnd on the expectcd length of assig"nment, on a statemcnt
by the rcpresentative of the Secretary-General in the Joint Appeals Board that if
Mr. Fasla had bccn regularly reassigned from Yemen after a stay of less than
one year, his emoluments would have bcen recalculated (doc. No. (3), para. C.4,
and Annex 67, para. 34). That statement was not, however, sufficient to con
vince the majority of the Board of the existence of the practice asscrted. As
explained in the Supplementary Reply submitted to the Tribunal', thestatcment
in question was not meant to assert that the Secretary-General had an obligation
to make such a recalculation, but rather that he might do so, if the circum
stances warranted, on an ex gratia basis-which is substantially the approach
endorsed by both the Joint Appeals Board and the Administrative Tribunal.
Jndeed, Mr. FasJa's assertion of a regular practice of such recomputation is
refuted by his own experience in Sierra Leone: originally assigned there for a
period of over a year, he was granted the usual Installation and Assignment
Allowances; when he was transferred from Freetown to Taiz after only three
and a half months (see subpara. 2 (b) above) he neither claimed nor was he
' Doc. No. (3), Annex 90, para. 21. STA.TEMENT OF 1'HE SECRETARY-GENERAL SS
offered any recalculation of emoluments or a Subsistence Allowance for the
time spent in Freetown.
80. More fundamentally, a recalculation such as demanded by Mr. Fasla
would run counter to the pattern of these emoluments as explained in para
graph 65 above. The transfer of household goods on long-term assignments, the
payment of an Assignment Allowance on intermediate-term ones and of a high
Subsistence Allowance on short-term ones is meant to enable a staff member to
adopt a certain style of living depending on the expected length of his stay-a
point explicitly conceded by Mr. Fasla in his final written statement to the
Tribunal (doc. No. (3), Annex 91, para. 87). If these expectations are dis
appointed for any reason, it is futile to ask: what arrangements would have
been made had it been known from the beginning that the stay at the post
would be longer or shorter (i.e., would the staff member have stayed in a hotel,
rather than buying and furnishing a house?); rather the question is: what
damage was suffered through the disappointed expectatîon (i.e., the need to
terminate a lease prematurely) and whether, under the circumstances, the
Organization should compensate the staff member for such losses-which might
be much larger or smaller than would result from a retroactive recalculation of
emoluments, based on hindsight.
81. lt is this reasoning that moved a majority of the Joint Appeals Board
to recommend an ex gratia settlement based on lasses Mr. Fasla can show
he had suffered as a result of his sudden recall from Yemen. The Secretary
General accepted this recommendation, and so did the Tribunal, rejecting
thereby Mr. Fasla's plea that to expect him to demonstratc his losses would
be ''highly inequitable" (doc. No. (3), Annex 89, para. 23, and Annex 91,
para. 88).
(c) Summary
82. The Administrative Tribunal carefully examined Mr. Fasla's daim that
his emoluments for his unexpectedly abbreviated service in Yemen should be
retroactively recalculated. ln doing soit exercised its jurisdiction to pass judge
ment on this daim. lts failure to grant the relief demanded did not constitute a
failure to exercise its jurisdiction, but resulted from its unreviewable, and
legally correct, decision that Mr. Fasla's claim was not maintainable.
3. DID THE TRIBUNAL COMMIT ANY FUNDAMENTAL ERROR
IN PROCEDURE WHICH HAS ÜCCASIONED A FAILURE OF
JUSTICE WITH RESPECT TO THE CLAIM FOR RECALCULATION?
83. Mr. Fasla's charges regarding procedural faults of the Tribunal rest
wholly on his assertion that the Tribunal failed to consider, analyse, decide or
even mention ail the daims he submitted toit (doc. No. (3), part 111.D).None of
these charges are at al! applicable to the claim for the recalculation of his
emoluments, which was specifically considcrcd and discusscd at length in
the Judgcment of the Tribunal (doc. No. (11), parts XV and XVIII.3 of the
Judgement). As pointed out above (see para. 74), Mr. Fasla's actual corn
plaint in respect of this aspect of the Judgement is that it is not correct (a
charge analysed in paras. 75-81 above), and not that the procedure was in any
way defective.56 APPLICATION FOR REYIBW
UI. REQUEST FOR THE AWARD OF COSTS
A. Claims for Costs
1. IN CONNECTION WITH THE APPLICA.TION TO THE
COMMITTEE ON APPLICATIONS FOR REYIEW
84. As part of his Application to the Committee on Applications for Review,
Mr. Fasla presented a Statement of Costs Incurred from 28 April to 6 May,
1972: Preparation of Application for Certification to the International Court
of Justice (doc. No. (3), Annex 92, part B). The expenses listed totalled $3,135,
of which the major part was for legal fees: $2,400, and for 15 days of living
expenses in New York (on visit from Montreal) in May 1972: $450.
85. The Application to the Committee on Applications for Review requested
"the Committee and/or the International Court of Justice" to award Mr. Fasla
the costs incurred in its presentation for certification. The Committee, after
considering its powers under article 11 of the Statute of the Administrative
Tribunal and the financial provisions of paragraph 5 thereof, as well as Article
64 of the Statute of the Court, decided to express no opinion on the request for
costs (doc. No. (10), para.9).
2. IN CüNNECTION WITH THE PROCEEDJNG BEFORE THE COURT
86. To assist him in preparing the views to be presented to the Court pur
suant to paragraph 2 of article 11of the Tribunal's Statute, Mr. Fasla has again
chosen to be assisted by the same lawyer, from the Panel of Counsel main
tained by the Organization, who represenled him before the Joint Appeals
Board and the Administrative Tribunal (see para. 49 above). That staff member
has therefore been assigned to do so as part of his official duties, and is receiving
the necessary secretarial and other support. Though Mr. Fasla has not yet
submitted any daim with reference to expenses incurred in connection with
the present proceeding in the Court, since he has presented such claims at each
earlier stage of the proceeding (see paras. 44, 45 and 85 above}, itmay be
expected that he wiil also do so at this stage.
B. The Court's Authorlty to Award Costs
87, Neither the Statute nor the Rules of the Court provide explicitly for the
award of costs in proceedings in regard to advisory opinions. ln contentious
proceedings, Article 64 of the Statute authorizes the Court to decide which
party is to bear the costs, and Rules 74 (I)and 77 (1946) version add approp
riate details. The question therefore is whether this Regulation and these Rules
may be held applicable to advisory proceedings pursuant to Article 68 of the
Statute and Rule 82 (1).
88. ln deciding whether to consider the provisions as to contentious cases
applicable toa proceeding pursuant to article 11 of the Statute of the Admini
strative Tribunal, the Court might take account of the fact that, as Rule 82 (1)
indicates, that Rule, and presumably Article 64 of the Statute on which the
Rule is based, are meant to apply to situations in which the request for an
advisory opinion relates to a question "pending between two or more States"
that is, to situations in which, for some reason, the advisory procedure is sub
stituted forthe contentious one between parties that could utilize the latter. STATEMENT OF THE SECRETARY•GENERAL 57
89. ln considering the app!icability to the present proceeding of Article 64
of its Statute and of Article 82 (1) of its Rules, the Court might also take ac
count of the fact that the General Assembly clearly intended to create a sui
generis procedural framework for review proceedings under article 11 of the
Statute of the Administrative Tribunal;
(a) ln its resolution amending the Tribunal's Statute, the Assembly also
recommended that no oral statements be made (resolution 957 (X), para.
2, doc. No. (60), pp.44-45);
(b) ln paragraph 2 of article 11 of the Tribunal's Statute, it directed the
Secretary-General to transmit to the Court the views of the person in
respect of whom the judgement under review has been rendered;
(c) By paragraph 3 of that article it in effect assigned binding force to the
opinions of the Court; .
(d) In paragraph 5 of that article it authorized special financial arrangements
to prevent a person concerned from being handicapped in prerenting his
interests, but these arrangements clearly do not involve the possible award
of costs.
90. In carefully formulatingartide 11of the Tribunal's Statute, the Assembly
sought to define precisely the function of each participant in the procedure:
.the Secretary-General, the Tribunal, the Committee on Applications for Review
·and the Court. lt also sought to define carefully the nature of the proceeding,
which itdeliberately denorninateci as one for ''review" rather than as an
appellate one. lt narrowly defined the issues that might be presented to the
Court, and it made financial provisions, not involving the participation of the
Court, to deal with the impact of the proceeding on the staff member concerned.
While these provisions may not be such as would apply in other kinds of
judicial proceedings, it does not appear that the General Assembly expected
the Court to supplement or supersede them.
IV. CONCLUSIONS
A. The Nature of the Review by the Court
91. The questions as to which an advisory opinion was requested .by the
Committee on Applications for Review were addressed to the Court pursuant
to article 11 of the Statute ·or the Administrative Tribunal (doc. No. (13)),
which article also established the Committee. Consequently the Court, in
rendering the opinion requested, willno doubt follow the principle it enunciated
in declining to respond to Question Il addressed to it by the United Nations
Educational, Scientific and Cultural Organization in relation to certain judge
1
ments of theAdministrative Tribunal of the International Labour Organisation ,
and willinterpret the questions now addressed toit strictly whhin the context of
the cited article of the Statute of the United Nations Tribunal.
92. In establishing the procedure for review by formulating and adopting
article 11 of the Tribunal's Statute, those participating in the debate in the
General Assembly and its organs repeatedly emphasized the desire, indeed the
necessity in view of the purposes for which the Tribunal was established, of
1 Judgm,mts of the Administrative Tribunal of the JLO upon Complaints Made against
Unescv, Advisory Opinion of 23 October 1956, I.C.J. Reports 1956, p. 77, at p. 99.58 APPLICATION FOR REVlEW
limiting review to exceptional cases 1• White these strictures might in the first
instance be considered as addressed to the Committee on Applications for
Review as the organ charged with regulating the rcview process, they may also
be considered relevant by the Court in deciding whether any aspect of the in
stant case is of the exceptional nature foreseen by the General Assembly in
establishing the review procedure.
B. Issues for Review
93. The issues with respect to which a review of judgements of the Admini
strative Tribunal may be requested of the Court are stated precisely in paragraph
1 of article 11 of the Tribunal's Statute. ln all other respects such judgements
remain "final and without appeal", pusuant to paragraph 2 of article 10 of the
Statute, as confirmed by the Court in its advisory opinion of 13 July 1954 2•Of
the four possible questions listed in article 11, the Committee for Review ad
dresscd two to the Court in respect of the instant case.
94. In intcrpreting the two questions addressed CO the Court, account should
be taken of the fact that neither the Statute of the Tribunal, nor its Rules at
the lime that article 11 was formulated by the General Assembly, provided for
the submission of individual picas or daims. As already pointed out (see para.
38 above), that requirement was established by the Tribunal only many ycars
later, so that neither the term "jurisdiction" nor "procedure'' in paragraph 1
of article 11 of the Statute, nor the requirement in paragraph 3 of article10 that
judgements must state reasons, should be read in the light of the subsequent and
subordinate requirement established by the Tribunal as to the formulation of
pleadings. Instead, these concepts should be understood in terms of the
allegations defining the Tribunal's competence under paragraph I of article
2 of its Statute, and the remedies it is entitled to grant pursuant to article 9.
1. FAILURE TO ExERCISE JuRISDJCTION
95. The possibility of requesting an opinion of the Court on whether "the.
Tribunal has failed to exercise jurisdiction vested in it" was proposed by a
representative to the Fifth Committee at the tcnth session of the General
Assembly, with the explanation that this should constitute a counterpart of the
question whether the Tribunal had exceeded its jurisdiction or competence
a grourid already specified in the Statute of the ILO Tribunal and previously
proposed for incorporation into the Statute of the UN Tribunal • Itwas accep
tcd by the sponsors of the principal resolution4, apparently with the expectation
that it would seldom be used 5•
' See, in particular, the observations of the Seeretary-General, recorded by the
Special Committee on Review of Administrative Tribunal Judgements, in its report
to the General Assembly, A/2909, doc. No. (60), p. 1, at p. 4, para. 13, and again
rcferred to by the Fifth Committee in its report to the Assembly, A/3016, doc. No.
{60), p.38, at p. 39, para9 {a); 1heconsensus of the rnembers of the Special CommiHee
recorded in A/2909, doc. No. t60), p. 1,at p. 4,para. 19; and the concurring view of
the sponsors in the Asscmbly of the proposais for a rcview procedure, recorded by the
Fifth Committee, A/3016, doc. No. (60), p. 40, para. 15.
1 Ejfecl of Awards of Compc11satio11Made by the U11i1edNations Admi11is1rative
Tribunal, 1.C.J. Reports 1954, p. 47.
3 A/C.5/SR.496, doc. No. (51), para, 25.
• A/C.5/SR.499, doc. No. (54), para. 11.
s See remarks by the representative of the United Kingdom, A/C.5/SR.498, doc.
No. (53), para. 3. STATEMENT OF THE SECR6TARY-GENERAL 59
96. ln view of both the plain meaning of the term "jurisdiction" and the
circumstances of its inclusion in the relevant clause of the Tribunal's Statute,
it is appropriate for the Court to interpret it in the same sense as in its decision
in relation to the ILO Tribunal (cited in para. 91 above), and to draw the same
distinction, as it did there, between questions relating to the jurisdiction of the
Tribunal and the decision of the Tribunal on the merits of the dispute submitted
to it. ln effect, the same severe standard should apply to an assertion that the
UN Tribunal in a judgement failed to exercise jurisdiction vested in it, as the
Court applied to the assertion by Unesco that the ILO Tribunal in its judge
ments exceeded the jmisdiction vested in it (ibid.,p. 100).
97. The Application submitted to the Committee on Applications for Re
view, and referred to by the latter in the questions it addressed to the Court,
charges that the United Nations Administrative Tribunal failed to exercise,
in its Judgement No. 158, its jurisdiction with respect to three out of seventeen
daims that Mr. Fasla had submitted to it. These charges have been examined at
length in section Il above.
98. As to the first of these daims, relating to alleged damage inflicted by
UNDP on Mr. Fasla's professional reputation and career prospects, the
Tribunal gave adequate consideration to the issues raised in its lengthy analysis
of the numerous daims relating to the means used by UNDP to locate a suit
able position for Mr. Fasla within the United Nations or the organizations
related to it. The Tribunal did not assert or imply any Jack of jurisdiction, nor
did it fail to exercise such jurisdiction.
99. The second of these claims related to the award of costs, as to which the
Tribunal has at most a strictly drcumscribed jurisdiction. The Tribunal mea
sured the sparse assertion relating to this claim against its established standards,
and found the claim unpersuasive. Il thus fully exercised its jurisdiction in
respect of the daim.
100. The third daim, for the recalculation of certain emoluments pertaîning
to Mr. Fasla's final period of active service, was explicitly examined at length
by the Tribunal, which rejected the substantive legal assertion made by Mr.
Fasla that the Secretary-General was under an obligation to make the desired
recalculation; for this reason the Tribunal rejected the remedy demanded. lts
decision thus raises no question of jurisdiction, but merely one of the inter
pretation of the pertinent regulations and rules, as to which the judgements of
the Tribunal are not reviewable.
2. FUNDAMENT AL ERRORS IN PROCEDURE
101. The possibility of requesting an opinion of the Court on whether the
Tribunal had "committed a fundamental error of procedure which has oc
casioned a failure of justice··was adapted by the General Assembly from para
graph I of article XIl of the Statute of the lLO Tribunal'. However, the words
"which has occasioned a failure of justice'', which do not appear in the ILO
Tribunal's Statute, were added at the proposai of a representative to the Fifth
Committee at the tenth session of the General Assembly, "to make the in
tention clearer" that it"was intended to preclude review on account of trivial
2
errors of procedure or errors that were not of a substantial nature" •Thus, the
t See report of the Special Committee on Review of Admini11,trativeTribunal
Judgements, A/2909, doc. No. (60), p. J, at p. JO,para. 71.
• A/C.5/SR.496, doc. No. (51), para.26.60 APPLICATION FOR REVIEW
standard set by the General Assembly for review on the ground of procedural
errors is intended to be even morestrict than that specified in the Statute of the
ILO Tribuna!.
102. ln particular, a failure by the Tribunal to state the reason on which
every part of its judgement is based is dearly not a ground that the General
Assemb!y wished to indude among serious departures from a fondamental
rule of procedure (see paras. 36-40 above), for although the Secretary-General
explicitly mentioned the possibility of including this among the grounds for
review 1, no action to that effect was taken.
103. Mr. Fasla's assertions regarding a!leged fondamental errors of proce
dure committed by the Tribunal and occasioning a failure of justice in respect
of the same three daims, appear from his Application to the Committee on
Applicatlons for Review to be merely derivative from bis assertions regarding
the Tribunal's alleged failure to exercise jurisdiction with respect to the same
three daims.
104. Mr. Fasla does not assert that the Tribunal failed to receive any evi
dence or arguments he desired to submit or that any prejudicial influences im
pinged on the proceedings of the Tribunal. In effect, he suggests that the Tri
bunal did not correctly consider the three daims in question, and in any event
awarded only inadequate damages. But these assertions are again addressed
to the unreviewable conclusions of the Tribunal, rather than to any aspect of
its procedure. And even if the Tribunal's failure to mention explicitly each and
every one of the many arguments included in the several extensive pleadings he
submitted toit were to be deemed a procedural fault it would not be one that
could reasonably be held to have occasioned a failure of justice.
105. Whatever procedural faults the Tribunal may have committed, these
did not, as the Court has held in a different context in its most recent judge
ment 2,prejudice in any fondamental way the requirements ofajust procedure.
3. ÛTHER ISSUES
106. As indicated in section II above, most of the challenges induded in
Mr. Fasla's application to the Committee on Applications for Review (doc. No.
(3), part JII.A-D) do not actually pertain to the jurisdiction or procedure of the
Tribunal, but to Hie correctness of its decisions. As the Court has pointed out
in its Advisory Opinion of 23 October 1956,"a challenge of a decision confirm
ing jurisdiction cannot properly be transformed into a procedure against the
manner in which jurisdiction has been exercised or against the substance of the
decision" (l.C.J. Reports 1956, pp. 98-99).
107. Questions of the correctness of decisions of the UN Tribunal are per
haps even less appropriate for review than similar questions with respect to
the ILO Tribunal, for the General Assembly explicitly considered the extent
to which errors of law might be subject to review by the Court of the UN
Tribunal's judgements; the Assembly decided that such a review might be un
dertaken only in respect of whether the Tribunal "has erred on a question of
law relating to the provisions of the Charter of the United Nations" (doc.
No. (13), article 11, para. l). However, in the instant case no error in relation
pp. 22-23, para. 53.produced as Annex li.A to A/2909, doc. No. (60), p. 1, at
• Appeal Relating to the Jurisdicrion of the /CAO Council, I.C.J. Reports 1972,
para. 45 of the Judgment. STATEMENT OF THE SECRETARY-GENERAL 61
to the Charter has been alleged, and the Committee on Applications for
Review therefore did not formulate any question in these terms.
108. The gravamen of Mr. Fasla's complaint to the Committee on Appli
cations for Review was of course his allegation of "a woefully inadequatejudge
ment" (doc. No. (3), para. 111.D.I). But the adequacy of the awards made by
the Tribunal is nota question as to which the General Assembly has authorized
a review of Tribunal judgements, nor is it a ground on which an appeal can
normally be taken even in national administrative jurisdictions.62 APPLICATION FOR REVIEW
Annex
ANALYSIS OF ALLEGATIONS CONCERNING MR. FASLA's
PERIODIC REPORTS 1
A.!. 30 June 1964 Jo 30 June 1965 (Damascus)
(a) With respect to the regular Report for his initial period of service from 30
June 1964to 30 June 1965in Damascus (doc. No. (3), Annex 9), on which
he was rated as maintaining "only a minimum standard"', Mr. Fasla
complains that although he filed a rebuttal (ibid.,p. 5), the head of his
departmcnt, in violation of paragraph 13 of the relevant Administrative
Instructions (doc. No. (16), quoted in subpara. 23 (b} of the Statcment),
did not investigate the matter and file an appraisal, nor was the rebuttal
itselffiled with the Report or referred to in the original Fact Sheet.
(b) Though it is correct that no final appraisal was made by the department
head, an investigation was initiated by querying Mr. Fasla's supcrvisor as
to the allegations in the rcbuttal. From the supervisor's response (doc. No.
(3), Annex JO) it appears that white he saw some improvement in Mr.
Fasla's performance subsequent to the reporting period, he was able to
support the ratings hc had originally glven by detaile<lanalysis.
A.2. / J11/yto 31 December 1965 (Damasc11s)
(a) With respect to the remainder of his servicein Darnascus until 31 December
1965, Mr. Fasla complains that no interim Report was filed, evcn though
one would seern to have been required by paragraph 7 of the relevant
Administrative Instructions on his transfer to Beirut or on his supervisor's
transfer from Damascus, nor was a favourable appraisal by that super
visor (doc. No. (3), Anncx 10, final paragraph) included in his records or
reflected on the Fact Sheet.
(b) The cited Instruction requires interim Periodic Reports only when the
relevant period is in excess of six months-but Mr. Fasla's service in
Damascus was just six months and his remaining period of service, until
the expiration of his first contract, would bejust short of six months; thus
there was no violation of the rule. Morcover, if Mr. Fasla had desired
an interim report he might have requested one or complained about the
failure to receiveone. The favourable appraisal by his supervisor was in the
context of a letter (see para. A.l {b) above) in which the latter justified
his originally low evaluation of Mr. Fasla during the first reporting period,
and rnerely indicated tr.at there had been some improvernent since.
A.3. I Jan11ary1966 to 31 May 1966 (Beir11t)
(a) With respect to the five-months service in Lebanon, Mr. Fasla complains
that no regular or interim Report was prepared conternporaneously,even
though such a report was rcquired by paragraph 2 of the relevant Admi
nistrative Instructions at the end ofthe second year of his appointment, and
perhaps also, under paragraph 7ofthe Instructions, on his transfer to New
York. On the basis of the Joint Appeals Board's recornrnendation accepted
by the Secretary-General (see paras. 8-10 of the Statement), a Report was
1Seeparas. 2 ( c) and 23-24of the Statementabove. STATEMENT OF THE SECRETARY-GENERAL
63
Iater prepared which summarized his service as maintaining "a good
standard of efficiency" (doc. No. (3), Annex 13), but this had of course
not been included in the original Fact Sheet.
(b) Again, the five months Mr. Fasla served in Lebanon was close to the
minimum period considered essential for any useful appraisal, and again
it should be noted that he did not request a Report until he initiated the
current set of proceedings.
A.4. 1 November 1966 to 30 June 1967 (UNDP, New York)
(a) Mr. Fasla complains that no Report was made at the end of June 1967,
on the third anniversary of his original appointment, as required by
paragraph 2 of the relevant Administrative Instructions.
(b) The Instructions foresee that appointments of staff members are normally
granted in multiples of a year, and thus anniversary reports are useful
devices in con~idering renewals or extensions of appointments. But Mr.
Fasla's first extension (see para. a)(of the Statement) was for six months,
and then for a year, so that it became more useful to prepare reports on
him in the months before the expiration of his appointment. lndeed a Report
had been prepared in November 1966 covering the first five months of
Mr. Fasla's service in UNDP's Bureau of Evaluation and Reports in
New York (June-October 1966, doc. No. (3), Annex 14), rating him as
"an efficient staff member giving complete satisfaction"; this Report was
summarized on the Fact Sheet. Another Report (see para. A.5 below) was
prepared in November 1967,some weeks before his Iatest appointment was
due to expire.
A.5. November 1966 to November 1967 (New York)
(a) Mr. Fasla objects that in preparing the Periodic Report covering his
service inUNDP's New York office (for the most part in the Bureau of
Operations and Programming) from November 1966 to November 1967
(doc. No. (3), Annex 21), paragraph 5 of the relevant Administrative
Instruction was violated in that the regular second reporting officer, bis
next supervisor in Iine, was by-passed, and instead the department head
completed both the second and third parts of the Report; Mr. Fasla also
asserts that a persona! letter that he addressed to the departrnent head
at the tirne (ibid., Annex 76) constituted a rebuttal within the meaning of
paragraph 13 of the Instructions, which should have been investigated
and treated as required by that paragraph.
(b) Though the second reporting offi.cer(who may not have been availab!e at
the time) did not sign the Report, the essentiat first part was cornpleted
by Mr. Fasla's immediate supervisor, with whom he was in most frequent
contact and whose evaluation is therefore of the greatest significance;
again, Mr. Fasla raised no contemporaneous objection on this point. His
"persona\" letter could not be considered as constituting a formai rebuttal,
nor does its language suggest that it was originally intended to serve that
purpose. In any event, aside from vague charges of prejudice, Mr. Fasla
merely asserted therein that he had once more been placed in work for
which he was not particularly suited, and that he could do better in an
other assignment-hardly an argument that would persuade a reviewing
authority to give him a significantly higher rating for the period covered.
A.6. January to March 1968 (UNITAR, New York)
(a) Mr Fasla cornplains that no interim Report was initially made for his
three-months service on loan to UNITAR from January to March 1968;64 APPLICATION FOR REVIEW
later, in response to the Joint Appeals Board's recommendation, such a
Report was filed (doc. No. (3), Annex 22)-which could no longer be
complete since his immediate supervisor had meanwhile left the service
of the United Nations; naturally, this belated Report was not reflected on
the original Fact Sheet.
(b) Ordinarily no interim Reports are prepared for perîods of service as short
as three months, but Mr Fasla could have requested a special Report under
paragraph 9 of the Instructions-a step that he failed to take.
A.7. December 1967-June1968 (UNDPand UNJTAR, New York)
(a) Mr. Fasla also cornplains that no Report was made on the fo~rth anni-
versary of his original appointment.
(b) The reason for this omission is that stated in paragraph A.4 (b) above.
A.8. June 1968 to March 1969 (Freetown and Taiz)
(a) Mr. Fasla complains that no Report was originally fi.Ledcovering his
brief (abbreviated due to illness) service in Sierra Leone or his service in
Yemen from September 1968 until May 1969. Later, consequent on the
Joint Appeals Board's recommendation, a report was obtained from his
supervisor, who had meanwhile retired from the United Nations, covering
Mr. Fasla's service in Sierra Leone and Yemen until the supervisor's
departure (doc. No. (3), Annex 60), in which Mr. Fasla was rated
"on the whole, an unsatisfactory staff member"; it was this Report that
Mr. Fasla attempted to present to the Joint Appeals Board as evidence of
prejudice (para. JO of the Statement) and whose invalidation he then
successfully demanded of the Tribunal (para. 30 of the Statement), where
upon the Secretary-General directed its withdrawal from Mr. Fasla's files.
(b) The original reason for the failure to file a timely report on Mr. Fasla's
service in Sierra Leone and Yemen was the illness of his supervisor, which
forced him to leave Taiz in February 1969-thus precipitating the chain
of events that Iead to Mr. Fasla's recall. The belated Report that the
Tribunal considered to be prejudicial was included in the revised Fact
Sheet (doc. No. (3), Annex 66), which however was never circulated and
was suppressed after the Tribuna\'s Judgement; it thus could not have
injured Mr. Fltsla's reputation or career in any way. Incidentally, in con
sidering the extent to which his supervisor may have been motivated by
prejudice, account should be taken of the fact that while Mr. Fasla's
relations with his supervisor became so unsatisfactory in their last post
that the latter was finally unwilling or unable to write a balanced evalua
tion, the relationship had not always been so strained or the supervisor so
prejudiced: during Mr. Fasla's brief stay in Sierra Leone he served under
the same Resident Representative, and both seemed to have found the
collaboration sufficiently satisfactoryto agree to continue it in Yemen; as
a matter of fact, Mr. Fasla was able to submit to the Tribunal copies of
three private manuscript letters that his supervisor had written from Sierra
Leone to the UNDP Personnel Chief and which contained basically fa
vourable reference to Mr. Fasla (doc. No. (3), Annexes 81-83)-by means
of which the latter attempted to refute a very poor evaluation privately
communicated to headquarters by the Acting UNDP Resident Represen
tative in Sierra Leone (doc. No. (3), Annex 64). 65
CORRECTED STATEMENT
OF THE VIEWS OF MR. MOHAMED FASLA
SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE
BY THE SECRETARY-GENERAL OF THE UNITED NATIONS
1. The following views of Mr. Mohamed Fasla with respect to Judgement
No. I 58 of the United Nations Administrative Tribunal, are set forth in ac
cordance with Article 11,paragraphs I and 2, of the Statu te of the Tribunal. The
text of those provisions is as fo\lows:
"Article 11
1. If a Mernber State, the Secretary-General or the person in respect of
whom a judgement has been rendered by the Tribunal (including any one
who has succeeded to that person's rights on his death) objects to thejudge
ment on the ground that the Tribunal has exceeded its jurisdiction or
competence or that the Tribunal has failed to exercise jurisdiction vested
in it,or has erred on a question of law relating to the provisions of the
Charter of the United Nations, or has comrnitted a fundamental crror in
procedure which has occasioned a failure of justice, such Mernber State,
the Secretary-General or the person concerned may, within thirty days
from the date of the judgement, make a written application to the Com
mittee.established by paragraph 4 of this article asking the Committee to
request an advisory opinion of the International Court of Justice on the
matter.
2.Within thirty days from the receipt of an application under para
graph I of this article, the Committee shall decide whether or not there is a
substantial basis for the application. If the Committee deddes that such a
basis exists, it shall request an advisory opinion of the Court, and the Sec
retary-General sha/1arrange to transmit to the Court the views of the persan
referred to inparagraph l." (Emphasis added.) (Doc. No. (13)).
2. ln the foliowing pages, the views of the Applicant are presented under the
following headings: General Background and Brief Statement of Facts (pp.
65-70); Applicant's Arguments (pp. 70-97) and Conclusions (pp. 97-99).
GeneralBackground
3. ln presenting the views of Mr. Mohamed Fasla to the International
Court of Justice it is desirable to keep in mind the basic policy context of the
controversy. We believe larger issues are at stake than the recomputation of
damages or the review of the proper rote of the United Nations Administrative
Tribunal in an employment grievance of this type. We believe that underneath
this appeal is the entire question of moral integrity within the international civil
service as it has been evolved by the United Nations. Itseems important to
view the Applicant's technical complaints, substantial as they are for the proper
functioning of justice, in this larger perspective.
4. What stands out in the voluminous record that has been built up in this
case is that Mr. Fasla was assigncd to a post in the United Nations Develop
ment Programme (UNDP) in the Yemen with a specific mission to clear up a
shocking mess that had been allowed to grow up in that office. United Nations66 APPLICATION FOR REVIEW
officiais and facilities were being abused in the most flagrant ways involving
persona! corruption, blackmarketeering, illicit currency exchanges, and nar.
coties trame. As a consequence, the UNDP was a symptom of Yemeni misery
and degradation rathcr than part of any cure. The highest officiais in Yemen
confirmed this view by expressing thcir disappointment with the way UNDP
was functioning in their country. No one denies the fact that Mr. Fasla tried to
clean up the mess and to get the Yemen UNDP programme back on the track
of economic and technical assistance. As a consequence of his efforts, which
necessarily included challenging the veracity and morality of his bureaucratie
superiors, Mr. Fasla was effectively ruined as a United Nations civil servant.
In other words, having been sent on prccisely the mission he tried to carry out
under conditions of distress, possibly even danger, Mr. Fasla deserved w be
rewarded and thanked for his efforts. lnstead he was punished in a way par·
ticularly insidious bccause it was disguised beneath the forms of bureaucratie
routine.
5. This prime fact has an importance that extends beyond Mr. Fasla ·sown
misfortunc, serious as this is. How can any employcc in the United Nations
not learn from Mr. Fasla's experience that it is bettcr to reach an accommoda·
tion with corruption and incompetencc than to rectify it? IfMr. Fasla suffers
as he has, despite his clearmandate to act, who in the future would be foo\ish
enough to interfere with even the grossest abuses of United Nations fonctions
of the sortgoing on in the Yemen office of UNDP? Civil servants arc notoriously
subservicnt to begin with, normally willing to subordinate all scruplcs to the
imperatives of careerism. These institutional impulses toward subscrvience are
now in danger of being strongly reinforced in relation to Mr. Fasla in the most
extreme of circumstances, and such an endorsemcnt will constîtute a message
that wïll be heeded by the United Nations civil service as a whole.
6. lt is for this reason that official United Nations responses to Mr. Fasla's
gricvanccs have been so disappointing. Clearly this is a case whcre one would
have expected the Administrator of the UNDP or evcn the Secrctary·General
io makc a special effort to find Mr. Fasla another job, if for no other rcason
than to nullify any possible impression that he was being "sacked .. because he
trled to stop corruption during his Yerneni assignmcnt. In this respect, any
contentions about Mr. Fasla's earlier mediocre employment record, even if
they wcre reliable (which they are not) are dramatically beside the point. If
Mr. Fasla was good enough to warrant the Ycmeni assignmcnt with ail its
difficulty and he was honest and dedicated enough to carry it out as well as
he could, !hen he certainly was good enough for a funher routine job assign.
ment in the UNDP' or elsewhere in the United Nations civil service. Therefore,
the minimal efforts, if indeed they werc effortst ail, to find Mr. Fasla a further
assignment implicate the higher bureaucracy, howcver unwittingly, in the
failingsin the Yemcn. How else are we to interprct the Hcadquartcrs' responsc
to Mr. Fasla's experience?
7. rn this regard, the Secretary.General's response has been deeply regrettable
as wcll.Jthas been at all tirnes technica\ and aloof fron, the human and policy
issuesat stake. There is no indication at any stage of the dispute that the
Secretary·General was disposed to unravcl the proccdural and bureaucratie
tangle and so corne to terrns with the elemental issue of integrity and fairness
raised by the plight of Mr. Fasla. ln the current papers to the International
Court of Justice one searchcs in vain for any acknowledgcment by the Secretary.
General that Mr. Fasla was a tragic victim of circumstances over which he had
no control and was, accordingly, deserving of a special effort by the Organiza.
tion after his return frothe Yemen. Large institutions have a way of bccoming STATEMENT OF MR. FASLA 67
impersonal, and it is important for this Court, in approaching these facts that
underlie the question before it, not to abet this tendency by viewing this un
precedented proceeding as merely raising technical issues.
8. Jt is clear that at every stage in Mr. Fasla's proceedings there has been
uneasiness on the part of the reviewing authorities about the way in which his
situation has been handled. The Joint Appeals Board, the Administrative
Tribunal, and the Committee for Review of Judgements all seemed to accept
a large part of Mr. Fasla's basic contention about the circumstances of his
Yemeni assignment and the failure of the Headquarters organization to treat
him fairly and reasonably, and yet at none of these administrative review stages
was there a willingness to follow through with a decision that in any sense was
commensurate with the wrongs done to Mr. Fasla. Instead there has been a
retreat into traditions of bureaucratie deference and conservativism, a refusai
to confront the issue squarely. As a result Mr. Fasla is today a broken man,
impoverished and denied his chosen career. This Court is Mr. Fasla's last
chance. Jt is a!so a final opportunity to avoid the deepening impression that a
personal career disasteris the result of standing in the way of corruption, even
of a criminal kind, if one is a subordinate employee in the United Nations
bureaucracy. Given the role of the United Nations in human affairs, it would
seem even more important than for national or corporate bureaucracies to
protect an employee who made Mr. Fasla's kind of effort to correct official
misconduct.
9. The facts concerning Mr. Fasla's employment with the United Nations
are described in sufficient detail in the documents contained in the dossier and
supplementary folder transmitted to the Registrar of the International Court
of Justice by the Director of the General Legal Division in charge of the Office
of Legal Affairs, United Nations, on 24 August 1972, and more particularly
.in the two reports of the United Nations Joint Appeals Board (doc. No. 3,
Annexes 2 and 67) and in the Applicant's application and supplementary ap
plication to the United Nations Administrative Tribunal (doc. No. 3, Annexes
86 and 89). For that reason, the Applicant does not intend to recount to the
International Court of Justice all the particulars of his case but mere\y wishes
to highlight, by way of general background, certain of its more outstanding
features.
10. Mr.Fasla, an Algerian national,joined the service of the United Nations
inJune 1964, at the age of 39. He did so at the invitation of the Chairman of the
United Nations Technical Assistance Board and relinquished both his perm
anent residency status in the United States and his long-term employment with
the Stanford Research Institute in Menlo Park, California, where he held the
position of Industrial Economist.
11. From August 1964until July 1968, Mr. Fasla worked in variouscapacities
as a professional officer for the United Nations Development Programme in
Syria, Lebanon, New York and Sierra Leone. Subsequently, the United Nations
Joint Appeals Board unanimousty found that, already during these initial four
years of Mr. Fasla's service, the United Nations Developrnent Programme failed
to provide him with several required service reports, denied him the protection
of the required investigation of his rebuttats to certain other service reports,
and withheld certain complimentary assessments of his work from his official
status file (doc. No. 3, Annex 2, para. 45).
12. In September 1968, Mr. Fasla was reassigned to the office of the United
Nations Development Programme in the Yemen Arab Republic, on the ex
plicit understanding that this assignment would be for one year or longer.
Prior to his departure, Mr. Fasla was briefed by several high officiais of the68 APPLICATION FOR REVIEW
United Nations Development Programme about the very deplorable situation
prevailing there with regard to the Programme's work in the Yemen Arab
Republic. The Co-Administrator of the United Nations Development Pro
gramme specifically asked Mr. Fasla to exhibit ..a missionary spirit" and to
..clean up the mess".
13. Upon his arrivai in the Yernen Arab Republic, Mr. Fasla soon found
that the situation there exceeded even his worst fears. For example, United
Nations diplomatie pouches and official vehicles regularly were used to smuggle
contraband into and out of the country. United Nations funds were being
routinely misapplied or misappropriated. United Nations personnel repeatedly
engaged in illegal currency transactions. Indispensable office files and records
were completely missing.
14. Under the circumstances, the work of the United Nations Development
Programme in the Yemen Arab Republic was at a virtual standstill. In fact,
at about the same time, the Minister for Foreign Affairs of the Yemen Arab
Republic found it necessary to make the following statement to the General
Assembly of the United Nations, which reflected their particular disappoint
ment with the UNDP effort:
"The United Nations was expected to assist our people in their striving
for peace and security and for the prevention of externat intervention in
our internat affairs, as well as to assist them in the task of reconstruction
and development. It pains me to have to mention here in this connexion
that the role of this international organization has been minimal and is
at present almost non-existent." (United Nations, GA, OR, 23rd Session,
1706th Meeting, 25 October 1968.)
15. Mr. Fasla attempted, to the extent possible, to eliminate some of the
worst outrages that were being committed under the umbrella of the United
Nations Development Programme in the Yemen Arab Republic. However, in
this endeavour Mr. Fasla immediately aroused the active hostility of his super
visor, the Resident Representative of the United Nations Development Pro
gramme in the Yemen Arab Republic. It became abundantly clear to Mr.
Fasla that the Resident Representative, who was approaching retirement,
placed considerations of persona} gain above any United Nations interest,
regularly engaged in a considerable number of illegal transactions, and showed
no concern whatever for improving the performance of the United Nations
Development Programme in the Yemen Arab Republic (doc. No. 3, Annex 86,
paras. 45-59).
16. Against this background, Mr. Fasla was confronted by the need to
make a difficult choice. The United Nations Charter required of him "the
highest standards of efficiency, competence and integrity" (Article 101(3)). By
accepting an appointment with the United Nations, he had pledged himself to
discharge his fonctions and to regulate his conduct "with the interests of the
United Nations only in view" (doc. No. 14, Staff Regulation 1.1).On the other
hand, Mr. Fasla was aware that action to correct abuses in the VNDP office
in the Yemen would be resisted by the Resident Representative and might even
jeopardize Mr. Fasla's own future with the United Nations.
J7. Mr. Fasla chose to carry out his original assignment and to uphold his
conception of duty to the United Nations and on 17January 1969 forwarded a
comprehensive report in the form of a letter about the derelictions of the
Resident Representative to the headquarters of the United Nations Develop
ment Programme in New York.
18. Remarkable as it may seem, the record of the present case makes it STATEMENT OF MR. FASLA
69
appear that, upon receîpt of this letter, the Director, Bureau of Administrative
Management and Budget, United Nations Development Programme, virtually
decided then and there to dispense with Mr. Fasla's further services. Thus, in
subsequent months, the United Nations Development Programme in New York
virtually ceased to communicate with Mr. Fasla, although the Resident Re
presentative had by that time Jeft the Yemen Arab Republic, and Mr. Fasla
was effectively in chargef the UNDP officein that country (doc. No. 3, Annex
86, paras. 66, 84-88). A senior official of the UNDP who visited the Yemen
Arab Republic late in February 1969 told Mr. Fasla, making reference to his
complaint about the Resident Representative, that Mr. Fasla would be "finished
for this" (doc. No. 3, Annex 86, para. 69). Another senior officialof the UNDP,
after visiting the Yemen Arab Republic in March 1969, reported in writing to
New York that "Mr. Fasla is running the office well and is trying hard to bring
some efficiency to the office and to straighten out certain unlawful activities of
United Nations personnel", however, and consistent with the Headquarters
pattern, that favourable report was withheld from the Applicant's official status
file,nd for months the UNDP even denied to the United Nations Admini
strative Tribunal that the report even existed (doc. No. 11, paras. II (b) and
XII). The Resident Representative of the UNDP in Turkey, who had access to
information concerning planned personnel movements in the area, wrote to
Mr. Fasla on I April 1969, expressing the hope that the letter "will reach you
wherever you may be" (doc. No. 3, Annex 43). Finally, at a later stage, when the
former Resident Representative in the Yemen Arab Republic prepared a
periodic service report conceming Mr. Fasla which was subsequently deemed
by the United Nations Administrative Tribunal to have been manifestly moti
vated by prejudice, the Director, Bureau of Administrative Management and
Budget, UNDP, endorsed the report's contents without any reservation or
persona] comment on his part and thus abetted the prejudice displayed against
the Applicant (doc. No. 11, para. XII). Such an endorsement must be under
stood against the background of Mr. Fasla's earlier complaints about the
Resident Representative and the UNDP's awareness of irregularities in the
Yemen office.
19. The silence which the UNDP maintained toward Mr. Fasla was broken
by a cable which arrived in the Yemen Arab Republic on 14 May 1969 and
instructed Mr. Fasla to report to New York on the morning of 20 May 1969
for consultations, "on assumption that you will not return to Yemen" (doc.
No. 3, Annex 48). Mr. Fasla was left with only two working days during which
he was to wind up his affairs, including closing down his household which he
had established in the expectation that his assignment in the Yemen Arab Re
public would last for one year or longer.
20. In New York, Mr. Fasla was informed by the Director, Bureau of
Administrative Management and Budget, UNDP, that he was being placed on
special leave and that "every effort will be made to secure another assignment
for you" (doc. No. 3, Annex 50). However, no further assignment was subse
quently offered to Mr. Fasla by the UNDP and his fixcd-term appointment was
not renewed when it expired on 31 December 1969.
21. Asa result ofappellate proceedings initiated by Mr. Fasla, both the United
Nations Joint Appeals Board and the United Nations Administrative Tribunal
found that in its search for a new assignment for him the UNDP had circulated
an "incomplete and misleading" performance record of the Applicant which
"seriously affected his candidacy for a further extension of his contract or
for employment by other agencies" (doc. No. 3, Annex 2, para. 45 (e), and
doc. No. 11, para. V). The United Nations Administrative Tribunal reached70 APPLICATION FOR REVIEW
the conclusion that "the Res.pondent did not perform in a reasonable manner
the obligation which he had undertaken to seek an assignment for the Appli
cant" and awarded to the Applicant six months' net base salary (doc. No. 11,
para. Xlll). Apart from the invalidation of the prejudiced periodic service
report, and from the setting of a deadline for the submission of a specific
claim, this was the only award made by the Tribunal to Mr. Fasla.
22. Mr. Fasla has been without gainful employment since the expiration of
his appointment with the UNDP. This sustained period of unemployment is
directly attributable to his service with the United Nations.
23. Regrettably, the problems encountered by Mr. Fasla in his search for
alternative employment did not end at that point. Although Mr. Fasla requested
late in 1969 the issuance by the UNDP of a certificate of service as provided
for in Staff Rule 109.11 (doc. No. 15) the UNDP so far has failed to furnish
him with such a certificate. In fact, the UNDP is unable to issue the requested
certificate since the United Nations Administrative Tribunal ruled as early as
1953that certificates of service should "use the very words which have been put
in the periodic reports by the superior which comment as to overall rating"
(Judgement No. 49 of the United Nations. Administrative Tribunal, 11Decem
ber 1953, para. 11). Such issuance is impossible because the UNDP has so far
failed either to investigate Mr. Fasla's contentions in rebuttalf certain of his
periodic reports or to provide Mr. Fasla with a new periodic report covering
his service in the Yemen Arab Republic in place of the prejudiced periodic
report which was declared invalid by the United Nations Administrative
Tribunal. The consequence of this state of affairs is that, as a direct consequence
of unfair and negligent actions by the UNDP, Mr. Fas.la today is unable to
provide any suitable evaluation of his six-year period of employment with the
United Nations to a prospective employer. In addition, Mr. Fas.lahas evidence
to support his belief that the Bureau of Administrative Management and
Budget of the UNDP actively dis.courages prospective employers from hiring
him.
24. After six.years of service to the United Nations, a period during which
he acted conscientiously and in harmony with the purposes and principles of the
Organization and with constant regard to the clear requirements of the United
Nations Charter, Mr. Fasla today finds himself unemployed and virtual!y
unemployable. At the age of 47, Mr. Fasla is unable to provide support for his
family and has no reasonable prospect of continuing his career in the inter
national civil service. His only remaining hope for vindication lies in this
recourse to the International Court of Justice.
Applicant'sArguments
25. ln his submissions to the United Nations Administrative Tribunal, the
Applicant requested the Tribunal to order the following measures:
(a) As a preliminary measure, production by the Respondent of the report by
Mr. Satrap, Chief, Middle East Area Division, UNDP, on his investiga
tion of the UNDP office in Yemen in February 1969.
(b) As a preliminary measure, production by the Respondent of the report
by Mr. Hagen, Consultant to the UNDP Administrator, on his investiga
tion of the UNDP officein Yemen in March 1969.
(c) As a preliminary measure, production by the Respondent of the report by
Mr. Hagen, UNDP Special Representative in Yemen, concerning the STATEMENT OF MR. FASLA 71
Applicant's performance, prepared at the request of the UNDP in the
summer of 1969.
(d) Restoration of the Applicant to the status quo ante prevailing in May 1969,
by extending the Applicant's fixed-term appointment for a further two
years beyond 31 December 1969, with retroactive pay of sa\ary and
related allowances; alternatively, payment by the Respondent to the Ap
plicant of three years' net base salary.
(e) Correction and completion of the Applicant's Fact Sheet which is intended
for circulation both within anù outside the UNDP, with al\ the required
periodic reports and evaluations of work; alternatively, payment by the
Respondent to the Applicant of two years· net base salary.
(f) Invalidation of the Applicant's periodic report covering his service in
Yemen, prepared in September 1970; alternatively, payment by the Re
spondent to the Applicant of two years' net base salary.
(g) Further serious efforts by the Respondent to place the Applicant in a
suitable post within the UNDP or within the United Nations Secretariat
or within a United Nations Spccialized Agency; alternatively, payment by
the Respondent to the Applicant of two years' net base salary.
(h) As compensation for injury sustained by the Applicant as the result of
the repeated violation by the Respondent of Administrative Instruction
ST/AI/115, payment by the Respondent to the Applicant of two years'
net base salary.
(i) As compensation for injury sustained by the Applicant as the resu!t of the
continuous violation by the Respondent of his o,bligation to make scrious
effortsto find an assignment for the Applicant, payment by the Respon
dent to the Applicant of cwoyears' net base salary.
(j) As compensation for injury sustained by the Applicant as the result of
prejudice displayed against him, payment by the Respondent to the Ap
plicant of five years' net base salary.
(k) As compensation for the emotional and moral suffering inflicted by the
Respondent upon the Applicant, payment by the Respondent to the Ap
plicant of one Yemen rial.
({) As compensation for delays in the consideration of the Applicant's case,
especially in viewof the fact that no Joint Appeals Board was in existence
during the first four months of 1969 since the Respondent had failed to
appoint a Panel of Chairmen, payment by the Respondent to the Ap
plicant of one year's net base salary.
(m) Payment to the Applicant of the sum of $1,000 for expenses in view of the
fact that, although the Applicant was represented by a member of the
Panel of Counsel, the complexity of the case necessitated the Applicant's
travel from California to New York in May 1970 as well as frequent
trans-continental telephone calls to the App!icant's counsel before and
after that date.
(n) As compensation for the damage inflicted by the Respondent on the Ap
p\icant's professional reputation and career prospects as the result of the
circulation by the Respondent, both within and outside the United
Nations, of incomplete and misleading information concerning the Ap
p\icant, payment by the Respondent to the Applicant of five years' net
base sa\ary.
(o) As compensation for the further delay in the consideration of the Ap
plicant's case early in197 l, payment by the Respondent to the Applicant
of one year's net base salary.
(p) Recalculation by the Respondent of the Applicant's salary and allowances72 APPLICATION FOR REVIEW
in Yemen on the basis of the actual duration of the Applicant's assignment
there, and payment to the Applicant of the difference between the recal
culated amount and the amount the Applicant received.
(q) As compensation for the illegal suspension of the Applicant from duty,
payment by the Respondent to the Applicant of five years' net base
salary. (Doc. No. 11.)
26. As far as the three preliminary pleas are concerned, namely p!eas (a)
through (c), the UNDP complied fully only with plea (a) (doc. No. 11, para.
Il (a)). Mr. Satrap's letter was annexed to the Applicant's file. However, in
excusable confusion surrounded the production of M r. Hagen 's letter of 9
March !969. After an initial denial of several months that such a leuer existed
at ail, the UNDP finally complied with the second request of the Applicant;
however, the entire letter was never shown to the Applicant. Fol!owing the
UNDP's instructions, the Tribunal decided that ail paragraphs except one were
"irrelevant to the case", and could be withheld from the Applicant '.
The Applicant has reason to believe that the paragraphs contained in this
letterare highly relevant to the Court's understanding of the nature of the case
and would respectfu\ly request that the production of the whole letter would
establish this belief. As a preliminary measure, the Applicant would also re
quest production of a letter dated 26 April 1969 from the President of the
Yemen Arab Republic to the Secretary-General of the United Nations. The
reply to this letter by the AdministrationUNDP is dated 28 May 1969 under the
symbol DP/310/Yemen. Although this request was originally made before the
Joint Appeals Board, the UNDP did not comply with it. The production of
these two letters would help greatly to clarify the issues at stake and disclose
the extreme pressure inflicted upon the Applicant during his stay in Yemen.
26a. With regard to plea (c), the UNDP Headquarters maintained to the
very end of the administrative proceedings that it did not have the letter in
question in its file, leading the Administrati~'e Tribunalto observe that it "can
only take note of the statement" (doc. No. 11, para. li (c}). ln fact, the Tribunal
was in possession of a document which made reference to this letter, raising a
presumption of its existence and a suspicion, at least, in view of the pattern of
irregularity in relation to Mr. Fasla, that it had been suppressed or removed
from the file. Evidence on this point can be submitted to this Court. The point of
importance, however, is that the Administrative Tribunal was in a position to
enquire further about the treatrnent of Mr. Fasla's situation and its determina
tion not to do so, given information at its disposai, involved a failure to
exercise the jurisdiction conferred upon it and, hence, contributed to a sub
stantial failure of justice flowing out of this procedural error.
27. As far as the 14 substantive pleas are concerned, namely, pleas (d}
through ( q), the United Nations Administrative Tribunal fully granted the
Applicant's request only with regard to plea (!), concerning the invalidation
of the prejudiced periodic report covering the Applicant's service in the Yemen
Arab Republic (doc. No. 11, paras. IX-Xll). The Tribunal also partially ac
cepted the Applicant's plea (i), requesting compensation for injury sustained
by the Applicant as the result of the continuous violation by the Respondent
of its obligation to make serious efforts to find an assignmentfor the Applicant;
the Tribunal awarded the Applicant six months' net base salary in place of the
two years' net base salary requested (ibid.,para. XIII). The Tribunal partially
considered in its Judgement pleas (I) and (o) concerning compensation for
1 Attachment 1. STATEMENT OF MR. FASLA 73
delays in the consideration of the Applicant's case (ibid., para. XVI), plea (m)
concerning the Applicant's expenses in the preparation of his case (ibid.,
para. XVIII), plea (p) concerning recalculation of the App\icant's salary and
allowances in Yemen on the basis of the actual duration of the Applicant's
assignment there (ibid., para. XV), and plea (q) concerning compensation for
the illegal suspension of the Applicant from duty (ibid., para. XIV).
The Applicant believes that the Tribunal did not fuliy address itself to the
questions presented by the above five pleas. Furthermore, the United Nations
Administrative Tribunal did not even consider the merits of the Applicant's
remaining seven pleas, namely, plea (d) concerning the restoration of the Ap
plicant to the status quo ante prevailing in May 1969, plea (e) concerning cor
rection and completion of the Applicant's Fact Sheet, plea (g) concerning
further serious efforts by the Respondent to find suitable employment for the
Applicant, plea (h) concerning compensation for injury sustained by the Ap
plicant as the result of the repeated violation by the Respondent of Admini
strative Instruction ST/Al/115 dealing with periodic reports, plea ( j) concern
ing compensation for injury sustained by the Applicant as the result of pre
judice disp[ayed against him, plea (k) concerning compensation for the cmo
tionaland moral suffering inflicted by the Respondent upon the Applicant, and
plea (n) concerning compensation for the damage inflicted by the Respondent
on the Applicant's professional reputation and carccr prospects. The concluding
paragraph of the Tribunal's Judgement No. 158, rendered in respect of the Ap
plicant, reads as follows:
"The Tribunal accordingly decides that:
l. The Respondent sha!l pay the Applicant a sum equa\ to six months'
net base salary;
2. The periodic report prepared for the period June 1968-March 1969
is invalid and shaH be treated as such; ·
3. Any requests for payment made in accordance with paragraph XV
above shall be submitted, together with the necessary supporting evidence,
by the Applicant to the Respondent within a period of two months from
the date of this judgement;
4. The other requests are rejccted." (Doc. No. 11, para. XVIII.)
Paragraph 3 of Article JO of the Tribunal's Statute (doc. No. 13) requires
that: "The judgements shall state the reasons on which they are based."
The Tribunal's decision (4.) that "the other requests are rejected" constitutes
a violation of Article 10 (3).Rejection of a plea is defective without a statement
ofreasons. No such statement is provided despite, as will beshown, fundamental
aspects of the Applicant's grievances that were embodied in the unconsidered
pleas.
28. Against this background, the Applicant applied to the Committee on
Applications for Review of Administrative Tribunal Judgements, arguing that
in his case the United Nations Administrative Tribunal, by failing to consider
ful\y and pass upon all the daims prcsented by the Applicant, and by failîng
to compensate adequately the Applicant for damage suffered by him, failed
to exercise the jurisdiction vested in it and furthermore committed a fundamen
tal error in procedure which had occasioned a failure of justice; accordingly,
the Applicant asked the Committee to request an advisory opinion of the In
ternational Court of Justice (doc. No. 3).
29. Jn an unprecedented decision, the Committee on Applications for Re
view of Administrative Tribunal Judgements held that there was "a substantial74 APPLICATION FOR REVIEW
basis" within the meaning of Article 11 of the Statute of the Administrative
Tribunal for the Applicanfs request. For that reason, the Committee requested
the International Court of Justice for an advisory opinion (doc. No. 10).
30. Before addressing himself briefiy to each of the substantive pleas which
had becn submitted by Mr. Fasla to the United Nations Administrative Tri
bunal, the Applicant wishes to draw the attention of the International Court
of Justice to two points, each of which, in his view, by itself fully justifies an
affirmative response by the Court to the questions asked of it.
31. Earlier in the present submission, it was emphasized that the problems
that arose between the Applicant and the UNDP were a direct consequcnce of
the Applicant's faithful fulfilment of his obligation, under Article 101 (3) of
the United Nations Charter and under United Nations Staff Regulation 1.1,
to display the highest standards of integrity and to conform his conduct with
theinterestsofthe United Nations (para. 16above). ltisanelementary principle
of law and equity that this obligation of the Applicant gave rise to a corrcspond
ing righl, namely, the right to be fully and appropriately protectcd oy the
Organization, and more particularly by the Secretary-Gcneral as the chief
administrative officer of the United Nations, against any negative effects that
might arise as a consequence of fulfilling his statutory obligations as a United
Nations staff member. Such a principle is an illustration of" ... gcneral prin
ciples of law recognized by civilized nations··, which is affirmed as a suitable
basis for decision in Article 38(1) (c) of the Statute of this Court.
32. The United Nations Administrative Tribunal utterly failed to rccognîze
and uphold this fundamental legal principlc as it applics to employment rela
tions within the international civil service. As a result, while explicitly rccogtiiz
ing that the Applicant had bccn the victim of prejudicc during his association
with the United Nations, the United Nations Administrative Tribunal failcd to
exercisc ils jurisdiction and/or commîtted a fundamental error in procedure by
not basing its Judgemcnt on the inherent right of the Applîcant not 10 be
penafü:ed for the faithful performance of his duties as prescribed by the United
Nations Charter and the United Nations Staff Regulations. The Applicant
respectfully submits that this considcration, by itself, fullyjustifies the rendcring
of an affirmative response by the International Court of Justice to the questions
posed in the present litigation.
33. A second general, overall basis for reaching a decision in favour of the
Applicant, that is, an affirmative responsc to the questions put in the request for
an advisory opinion, involves the failure of the United Nations Administrative
Tribunal to uphold Article 10 (3) of ils Statute which provides: "The judge
ments shall state the reasons on which they are based" (doc. No. 13). ln fact,
half of Mr. Fasla's pleas were rejectcd without any statement of reasons, even
though, as we shall demonstrate, these pleas each rested on a substantial basis
that was developed by the Applicant in his presentations before the United
Nations Administrative Tribunal. The Applicant respectfully submits that this
failure to give reasons constitutes by itself prima facie evidencef the Tribunal's
failure to exercise jurisdiction and of the Tribunal's commission of a funda
mental error in procedure which has occasioned a failure of justice. Such a
contention is supplementary to the Applicant's arguments that the Tribunal
also failed to excrcise its jurisdiction and committed a fundamental error of
procedure which has occasioned a failure of justice by its insufficient and inade
quate enquiry in relation to those pleas for which it did provide a reasoned
statement in accordance with Article 10(3) of its Statute.
34. The Applicant, to facilitate consideration of the case requests the pro
duction of the dossier of the Administrative Tribunal as required by Article 12, STATEMENT OF MR. FASLA 75
section 2, of the Statute and Rulcs of the United Nations Administrative
Tribunal which states:
"The Executive Secretary shall make for each case a dossier which shall
record all actions taken in connection with the preparation of the case
for trial, the dates thereof, and the dates on which any document or
notification forming part of the procedure is received in or dispatched
from this office."
The Applicant also requests the production of the minutes of the Tribunal
involving the proceedings of his case.
35. The Applicant will now review briefly each of the unanswered pleas he
submitted to the Administrative Tribunal, i.e., pleas ( d) through ( q). The
emphasis will be put on these pleas that the Applicant believes have been given
inadequate consideration. The contention that the Administrative Tribunal
failed to exercise jurisdiction on these pleas, thereby committing a fondamental
error in procedure, can, hopefully, be adequately established. This failure has
been recognized at least as a substantial possibility, by the Committee on Ap
plications for Rcview of Administrative Tribunal Judgements through its un
precedented determination to request this advisory opinion from the Interna
tional Court of Justice.
Plea (d)
36. 'Under this plea, the Applicant requested the Administrative Tribunal to
order his restoration to the status quo ante prevailing in May 1969,by extending
the fixed-term appointment of the Applicant for a further two years beyond
31 December 1969, with retroactive payment of salary and related al!owances;
alternatively, the Applicant requested payment to him of three years' base
salary.
37. The attention of the International Court of Justice is respectfully drawn
to the fact that this plea was formulated on 31 December 1970, in the expecta
tion that the Administrative Tribunal would consider it during the course of
1971. Through no fault of the Applicant, this has not been the case. Accord
ingly, the restorationof the status quo ante would now entai! a retroactive exten
sion of the Applicant's last fixed-term appointment by at least four years, until
31 December 1974, the alternative pica of compensation is similarly amended
to cover payment of six years' net base salary.
38. The Applicant wishes to emphasize that he attaches the highest impor
tance to restoring him to the status quo ante. In fact, he regards it as the only
conceivable procedure by means of which justice can begin to be done in his
case. The acknowledged gaps in the periodic reports that reduced the Appli
cant's chances for further employment at the time; the damages to the reputa
tion of the Applicant caused by the circulation of such incomplete reports; the
abrupt recall from Yemen and the imposed leave, are among the charges that
can never be entirely offset by monetary compensation. Monetary compensation
cannot alter the fact that the Applicant's reputation among higher officiais
affiliated with the United Nations has been effectively ruined and his future
destroyed, through no fault whatsoever on his part. No amount of compensa
tion can alter the fact that the Applicant has lost the possibility of making a
positive contribution to the international community through his participation
in the international civil service. Restoration to the status quo ante is the only
way that partial justice can be given for the basic injustice inflicted upon the
Applicant. Furthermore, restoration to the status quo ante has been an accepted76 APPLICATION FOR REVIEW
principle in the practice of the national civil services whenever wrongs of this
magnitude have been demons.trated.
39, In the paragraphs that follow the Applicant will set forth some of the
circumstances that existed in Yemen with a view to providing this Court with a
sense of why a miscarriage of justice has taken place. This recital of circum
stances is presented in an informai and incomplete way, but it is the best that
can be done given the time and resources available to the Applicant. The
Applicant believes that, at least, it should become clear that an authoritative
investigation can corne to terms with the fondamental contention that he has
been victimized by calling attention to and opposing a pattern of corruption,
negligence, and even criminality in which United Nations personnel and facili
ties were deeply implicated. To ignore this set of background conditions is to
render no appropriate relief whatsoever, especially when the record amply and
incontestably demonstrates that the UNDP Headquarters staff behaved in a
most irregular way toward the Applicant. The emphasis on plea { d) reflects
Applicant's basic contention that he has been punished for rendering construc
tive and conscientious service and that it is essential for symbolic and substan
tive reasons that this punishment be effectively repudiated. lt is the Applicant's
forther contention that suëh a repudiation, at this stage, can only be accom
plished by restoring him economically at least to a condition corresponding to
the status quo ante. This cannot be done in a complete sense because of the
grief sustained by the Applicant, but at least full monetary restoration can be
accorded.
40. The Applicant respectfully wishes to draw attention to his situation in
Yemen to emphasize the extreme difficulties of that period and the cost to him
self of his attempt to correct fondamental irregularities in United Nations
operations. Only in this way can the Court grasp the extent to which the
United Nations Administrative Tribunal's failure to render Applicant satis
faction under this plea or even to state its reasons for not doing so constituted a
procedural error resulting in a fondamental failure of justice. Prior to his
departure from New York to Paris, the Applicant had been briefed by several
high UNDP officiais on the situation obtaining in Yemen. The UNDP Co
Administrator, in particular, asked the Applicant to show "a missionary spirit"
and to "clean up the mess". (Doc. No. 3, Annex 86, paras. 38-44.) ln Cairo en
route to his assignment the Applicant was given further background informa
tion conceming the situation in Yemen. He was told that it had been found
necessary to dismiss a UNDP Administrative Officer for smuggling, misap
propriation of funds, currency irregularities, and the like. The Applicant was
also informed that United Nations experts in Yemen were still engaged in
illicit activities and were bribing their government counterparts with mis
appropriated United Nations goods and with a percentage of their earnings
from illegal currency transactions (such transactions were facilitated by the
existence of three different rates for conversion of currency; the official rate, a
preferential rate for United Nations officials and experts, and the black market
rate). The Applicant was shown copies of numerous confidential reports which
had been sent to the UNDP in New York concerning this state of alfairs. What
he had already learned in his briefing in New York about the situation in Yemen
and the two Sarfraz missions which had gone to Yemen at a cost of $67,000
was fully in evidence upon his arrivai.
41. Proceeding in the company of the Resident Representative-designate to
Yemen, the Applicant encountered there a truly chaotic situation the full
dimensions of which had been indicated to him only in part durîng his pre·
assignment briefings. Files in the UNDP office in Taiz either were incomplete STATEMENT OF MR. FASU. 77
or did not exist at ail. The New York-Yemen UNDP pouch (routed via Cairo)
as well as a speciaCairo-YemenUNDP pouch were regularly used to smuggle
currency into Yemen and gold watches and jewellery out of Yemen. United
Nations experts neglected their assignments since they were preoccupied with
other ventures; indeed~ the acting FAO Country Representative regularly sold
UNDP-financed farm produce on the market for bis persona! profit. A store
had been established in Taiz dealing solely in smuggled goods. Experts fre
quently undertook private travel to Cairo or Aden for which they subsequently
claimed and received UNDP subsistence payments.
42. The Applicant was not successful in all his endeavours aimed at improving
the scandalous situation pertaining to the United Nations activities in Yemen.
The primary°reason for this failure was lack of support as well as outright op
position on the part of the Resident Representative who was approaching
retirement and, in any event, consistently placed considerations of persona!
gain above any United Nations interest and was not in the least concerned with
improving either·the UNDP performance in Yemen or the relationship between
the Organization and the Yemen Government. Even when the Resident Re
presentative was in Taiz, he usually didnot appear in the office. The number of
days on which he was present in the office, though never more than for 1 or 2
hours during which he abused the United Nations staff in violent language,
were as follows: 8 days in October 1968,6 days in November 1968, 7 days in
December 1968, 12days in January 1969,and I day in February 1969(doc. No.
3, Annex 86, paras. 45-58).
43. In view of these circumstances, relations between the United Nations
and the Yemen Government were characterized by bitterness and even hostility.
As further evidence of this deteriorating situation Mr. Hagen, a UNDP Head
quarters official, said in a brief summary draft report on bis mission in Yemen
dated 23 March 1969, inter alia:
"Quite unexpectedly I ran into a rather hot situation here. Whenever I
had discussions with the Government they complained about the UNDP
and the agencies. Unfortunately I had to convince myself, that many of the
complaints are justifi.ed.(What I have heard here and seen myself is
shameful for the United Nations fami1yand I prefer not to write anythirlg
about this but to report verbally only.) I consider the situation as rather
severe. The Foreign Minister even suggested to make a case against UNDP
at the International Court of Justice in The Hague for betrayal and mis
leading the Republic. He said that if all the money which the country bas
spent for the United Nations since its membership with the United Nations
were spent on development of the country some results would at least be
visible now. But the fact is that many of the high level United Nations
officiais did nothing but make the best personal useof their position here.
And it is really tragic that the first UNDP project which will be im
plemented here (Wadi Zabid) is hopelessly ill-conceived and will be a sure
failure if carried out." (Doc. No. 3, Annex 42.)
The entire situation in Yemen can be clarified by the production by Re
spondent of the Hagen letter to Mr. Cohen dated 9 March 1969 which the
Administrative Tribunal has incorrectly ruled that all its paragraphs except one
are "irrelevant to the case" (doc. No. 11, para. II, p. 18),and by the production
by Respondent of the letter from the President of the Yemen Arab Republic
dated 26 April 1969 (the reply to this letter from the UNDP Administrator is
filed under the symbot DP/310/Yemen).
44. The Applicant further forcefully reaffirms all the statements which he78 APPLICA.TION FOR REVIEW
made in the Application concerning the use of UNDP pouches and UNDP
vehicles for the purpose of smuggling, concerning the improper activities of
various UNDP experts, concerning the manifold illicit and fraudulent dealings
of the Resident Representative, concerning the resultant breakdown in the
UNDP operation in Yemen, and concerning the total silence of UNDP Head
quarters when confronted with Applicant's repeated urgent requests for advice
and assistance. Attention of the Court is respectfully, but forcefully, drawn to
the fact that nota single sentence of the Applicant's account has been contested
by the Respondent, nor could it be.
45. At the time of Applicant's presentation to the Administrative Tribunal it
was expected that the United Nations Administrative Tribunal would ascertain
the true nature of the situation in Yemen and the reasons underlying the recall
of the Applicant, as well as other features of his subsequent mistreatment. In
fact, no attempt was made by the Administrative Tribunal to enquire into the
basis of Applicant's recall from Yemen. As a consequence, the Tribunal ex
cluded from its enquiry the only possible basis for assessing the magnitude of
the wrongs done to the Applicant, and hence, by such a procedural foreclosure
was .natural\y led to under-estimate the damages done to the Applicant. The
Applicant now presents some uncontested material to clarify the circumstances
surrounding his recall and to tend support to his basic daim that he was a
scapegoat who was being used to cover up the improprieties, neglîgence, and
illegal dealîngs of various UNDP and other United Nations officiais. This
contention is basic to Applicant's argument that the United Nations Admini
strative Tribunal failed to exercise the jurisdiction vested in itand by such a
failure rendered a grossly unjust decision which made Applicant an award of
damages that was trivial in relation to the real Iosses sutTered.The factual back
ground is given as Applicant appreciates it only to demonstrate before this
Court that the Tribunal could not respond to plea ( d) without considering
these wîder contentions and the specific daim by the Applicant that adequate
reliefrequires a restoralionof the status quo ante.
46. Applicant was under fire from various agencies in the United Nations
system which evidently sought to eliminate him from service in order to protect
staff members against exposure. As an example, on 21 April 1969 he learned
that an entire shipment of the World Food Program for its school feeding
programme was going directly to the black market with the connivance of
United Nations officiais and Yemeni officiais, bath Republican and Royalist.
The international agencies involved in this project were FAO and WFP. During
Applicant's assignment on both occasions when a shipment would arrive the
officer in charge of the WFP arranged to be out of the country and asked the
UNDP office to be represented for the delivery of the shipment by the acting
FAO representative. On 21 April 1969 a revolutionary situation broke out in
Hodeida. Many students were injured and arrested and Applicant was informed
by a high military officialthat this disturbance started following accusations
by high school students that there was a plot to divert to the black market an
entire food shipment, consisting of a loaded cargo ship, and sent as part of
World Food Program. Many high-level officiais in Hodeida were co-operating
with United Nations officiais in an effort to hide this plot. In a letter of 9
April 1969 from the UNDP Adniinistrator (doc. No. 3, Annex 44) Applicant's
authority had been expanded to cover a situation of this kind:
"You are hereby authorized to sign on behalf of the Organizations
participating in the United Nations Development Programme, the Agree
ment entitled: 'Standard Agreement on Operational Assistance' STATEMENT Of MR. FASLA 79
between
the United Nations, the International Labour Organisation, the Food
and Agricultural Organization of the United Nations, the United Nations
Educational, Scientific and Cultural Organization, the International Civil
Aviation Organization, the World Hcalth Organization, the Jnternational
Telecommunications Union, the World Meteorological Organization, the
International Atomic Energy Agency, the Universal Postal Union, the
lnter-Governmental Maritime Consultative Organization and the United
Nations Industrial Development Organization
and
The Government of the Yemen Arab Republic."
Acting upon his responsibilities as Officer in Chargeof the UNDP operation,
Applicant requested in a meeting on 2\ April with the Officer in Charge of the
WFP a fullaccount of the situation. After a fullinvestigation, the Applicant
found, in fact,that people from the United Nations in co-operation with high
level Yemeni officiais did, beyond any doubt, intend to divert the shipment. A
somewhat similar incident had occurred some two months earlier when an
entire shipment of arms from the Soviet Union, including 13 tanks and much
ammunition, had been diverted without the Government's awareness. Applicant
had a meeting with the WFP officer and insisted upon a written explanation
of why this official arranged to be out of the country at the time when major
shipments were scheduled to arrive. Becausethere were so rnany people involved
in this situation the Applicant went himself to begin negotiations with the
Government at Sanaa, the military commander at Hodeida, and even with the
Royalist tribes of the area to see if the shipment of food could be rediverted to
its proper destination. At some persona! risk to himself, Applicant entered into
an area where no one else had been able to travel to begin negotiations with
the chief of a Yemeni Royalîst tribe, who was persuaded to assist the Applicant
and did so by ordering a meeting of the officiais in Hodeida and securing the
proper disposition of the shipment. The Applicant believed that the WFP
officer himself was an honest man who had been victimized by other organized
groups and, hence, did not report on his behaviour at the time, e.xpecting to be
able to solve the prob\em by himself, without causing embarrassment to the
United Nations or its personnel. Upon his return to Taiz an attempt was made
on Applicant's life. Although it was unsuccessful, it scems reasonable that this
assassination plan was connected with Mr. Fasla's subsequent peremptory
recall from his position in Yemen, The Applicant isubmitting seven documents 1
covering the period fiom the beginning of the incident until the successful
clearing of the entire shipment to support his interpretation of these extra
ordinary occurrences.
47. Within a few hours of Applicant's return to Taiz after the successful
completion of this operation he sent a cable jointly addressed to the Director,
Bureau Administration, Management and Budget and to the Director, Bureau
of Programming Operation requesting an opportunity to visit Headquarters
''forco11s11ltationfsor 24 hours", to discuss "programme coverage of our opera
tions in YAR which cannot be discussed by comm11nications". (Doc. No. 3,
Annex 45, 24 April 1969.) The cablc solicited no response and the matter was
treated as routine. Applicant, however, was criticized because he sent the
1 Attachments 2, 3, 4, 5, 6, 7 and 8.80 APPLICATION FOR REVIEW
cable jointly to the two Directors. Applicant had requested this consultation
because he felt that the situation was of the utmost gravity and delicacy, and
that it was far too sensitive to discuss in written communication due to the
possibilities of a scandai arising from these happenings resulting in bad publicity
for the United Nations. Two days following this incident the President of the
Arab Republic, who was aware of the situation because his office had assisted
in obtaining the eventual clearanceof the shipment, sent a letter to the Secre
tary-General complaining about ail of the activities of the United Nations in his
country. This Ietter is one of those which the Applicant has requested the
production of by Respondent in order to emphasize the plausibility of his
construction of the facts.
48. A further illustrative incident reinforces Applicant's basic daim that his
recaU from Yemen was designed to cover up the deplorable condition of the
UNDP and that the termination of the Applicant's assignment in Yemen was
motivated by similar considerations. Sometime in October 1969 the UNDP
officein Taiz received a letter from the Director-General of FAO informing him
that the Government had requested that Mr. Badran, Locust Control Expert,
be removed from the project by 31 December 1969. The [)irector-General of
FAO requested the assistance of the UNDP office in intervenîng with the
Government to allow Mr. Badran to remaîn. If the Government însisted upon
his removal we were to report that FAO would terminate Mr. Badran. The
Applicant was surprîsed by receipt of this letter since the Government, a few
days earlier, had informed the Applicant that they felt that Mr. Badran was
one of the few honest and trustworthy experts in Yemen. The Applicant began
negotiations with the Minîstry of Foreign Affairs which was also surprised
since the request had not been initiated by them. Applicant was assured that
the situation could be settled and that careful consideration would be given the
matter. Within days, despite a letter of the Director-General, the Applicant
received an unexpected and unannounced visit from Beirut by a Mr. Lubani,
Regional Locust Control Expert, who had come from Beirut solely for the
purpose of handing him a !etter informing him that on behalf of his department
the Applicant should request clearance from the Government for the appoint
ment of a Mr. Muafa as Locust Contrai Expert to replace Mr. Badran and to
expand the new appointee'sjurisdiction to cover Southern Yemen as well as the
Yemen Arab Republic. In view of the content of this letter and of the insistence
by Mr. Lubani that this matter would have to be done in his presence, the Ap
plicant dictated a letter to the Government informing them of the request of
FAO for the appointment of Mr. Muafa as Locust Control Expert.
49. Because Applicant was relatively new in Yemen, it was impossible for
him to know immediately everything involved in the !>ituation. He was later
informed by reliable sources that there was a well-organized contraband opera
tion in the process of being established stretching from Aden to Saudi Arabia
and relying on United Nations vehicles. During his investigation Applicant
discovered that not only was Mr. Muafa, a Yemeni national, entirely without
education, but also that politically he was a large risk for the United Nations
because he and his brother were working with the Royalists who had occupied
the territory around Sanaa. His brother was, in fact, deputy to General Kassem
Monnasser. During this period, Applicant obtained written evidence that Mr.
Giurdas Singh from FAO had met with Mr. Muafa in Asmara, Ethiopia, during
a Locust Control meeting to decide the termination of Mr. Badran and his
replacement by Mr. Muafa. Considering the rumours, which were confirmed
in Yemen, that a deal had been made between Mr. Singh and Mr. Muafa to use
the huge automobile park of the United Nations Locust Control Project at STATEMENT OF MR. FASLA 81
Hodeïda, and supported by a network of short-wave radios, for illicit traffic,
Applicant initiated an investigation of these allegations.
50. Applicant discovered that Mr. Singh had also tried through the Resident
Representative in Aden to extend the responsibility of the proposed expert to
Southern Yemen. Before the Yerneni Government rcsponded officially to the
letter concerning Mr. Muafa, the Applicant was subjected to unusual pressure
in the form of urgent cables and \etters sent by various FAO officials to urge
the prompt approval of _the appointment and to seek explanation of why the
approval of Mr. Muafa had not been received. Ali correspondence from FAO
dealt only with this case. ln the meantime, Applicapt learned that Mr. Muafa had
already been using United Nations trucks and jeeps for persona! use even for
tripsto the dangerous borders of Saudi Arabia in an area that was still occupied
by Royalist tribes.Applicant proceeded to Aden to ask the Resident Represen
tative there about the appointment of Mr. Muafa. He was very cautious about
responding toany of Applicant's qnestions but confirmed that Mr. Singh was
pressuring him to obtain clearance from the Government of Aden for the ap
pointment of Mr. Muafa in Aden and to extend his jurisdiction to Southern
Yemen. The Resident Representative informed Applicant, however, that if
Mr. Muafa had corne to Aden the Government would have put him in gao!.
He also informed the Applicant that many of the United Nations Locust
Controljeeps were coming into Aden, for no reason he knew about.
51. There was another Locust Control meeting in Baghdad between Mr.
Singh and Mr. Muafa. After this the UNDP office learned from FAO that Mr.
Muafa had withdrawn his candidacy for the post. The UNDP was as.ked to
seek the approval of the Yemeni Government of an Egyplian expert, named Mr.
Hosni, for appointment to the post. This proposai caused even greater puzzle
ment since the Government had made it clear that it did not want any Egyptians
as experts in the country at that time due to the difficult relations between Egypt
and Yemen. By Presidential decree the Ministry of Foreign Affairs had been
designated as the only government agency to initiate requests to any United
Nations organization and any such request was to be co-ordinated through the
UNDP office.
52. ln April 1969 Applicant sent to Headquarters a full report with evidence
and supporting documents sufficient to enable any responsible official to un
derstand that something unusual was occurring and to suggest the need for an
effort by the UNDP to contact the FAO with specific reference to this problem.
One copy of Applicant 's report was sent to the Director of the Bureau of Oper
ational Programming and another to the Chief of the Field Service Division.
This report was sent first to the Director of the Bureau of Operational Pro
gramming because Ap,Jlicant knew him to be a man of principle who would
grasp the gravity of the situation. Applicant now knows that this report never
reached the Director but was instead placed in a file by the Chief of the Middle
East Division in the Bureau of Programming as if it were a routine matter. At
this time the FAO Locust Control discovered that Applicant had already ini
tiated a serious investigation which threatened to reveal one of the darkest
chapters in the history of the United Nations-organized traffic of contraband
goods carried in United Nations vehicles from Aden to Saudi Arabia and
facilitated because the jurisdiction of the Locust Control Project extended
across the relevant borders. Applic,mt received a visit from a member of Mr.
Singh's department in Rome requesting him to support the recommendation
for more equipment and vehicles for the Locust Contrai Project to be financed
by UNDP. While, in the meantime, two officers from Mr. Singh's department,
Mr. Lubani and Mr. Skaff, were dispatched by Mr. Singh from FAO Rome to82 APPLICATION FOR REVJEW
Beirut to seek the removal of Applicant from Mr. Paul Marc Henry, Associate
Director, Bureau of Programming Operations, who was travelling to Turkey
with the Chief of the Middle East Division in the Bureau of Operational
Programming. Undoubtedly, Mr, Paul Marc Henry was already distressed, and
likely antagonized by the Applicant's request to postpone the Wadi Zabid
project as being ill-conceived (doc. No. 3, Annexes 39 and 42) and by the
Applicant's repeated complaints about mismanagement of programming for
Yemen at UNDP Headquarters. The App!icant had comp!ained particularly
about approval by UNDP Governing Council of the extension of projects that
even the Yemeni Government wanted terminated, but whose extension was
insisted upon by the United Nations agencies involved, solely for the purpose
of maintaining work for experts too gravely compromised to be relocated. Mr.
Henry, while unaware of the criminal aspects of the deplorable situation in
Yemen, was evidently wil\ing to allow the organizational incompetence he was
apprised of to continue. He apparently regarded it as essentialto remove the
Applicant from the scene as soon as possible, and used his authority to obtain
Applicant's removal from Yemen.
53. During the same period Applicant received a letter (ibid.,Annex 43)
from the Resident Representative in Turkey who, without doubt, was aware
of the situation and of Applicant's pending removal. ln it he said, inter alfa,
that he hoped that the letter "will reach you wherever you may be'' and con
tinued, "Toni toJd me that you had done an excellent job in Yemen and I was
glad indeed to hear this but you must take care of your health and not allow
the buffoons at Headquarters to gel you down".
54. Applicant would like to emphasize that his rccall may also have bcen
motivated by an investigation that he had undertaken to uncover behaviour
that was of a grave criminai character. In February 1969the Applicant reccived
a visit from the Administrative Officer, a Swedish national, of the Childrcn's
hospita! financed by the Swedish organization "Save the Children Fund". This
Administrator, accompanicd by two Swedish volunteer nurses, before re
turning to the country, rcported to the Applicant that a criminal action had
been covered up by United Nations officiais. Various medicincs provided as
aid by WHO and UNICEF found their way on to the she!vcs of pharmacists
instead of having been delivered to the appropriate facilities. The Swedish
official, supported by the two nurses, stated that if this medicine had been
directed to the proper channels and not to the black market, the lives of many
children could have bcen saved.
55. Within a month a similar complaint was made by a French doctor from
the French Medical Mission. ln April, after the departure of the WHO Country
Representative, a young doctor from the Soviet UniLn who had Just been
assigned by WHO, informed the Applicant of the discovery of an important
inventory of medicines provided by WHO and UNICEF, which had not
been delivered to the Government of Yemen. By the time of his discovery of
this shocking waste the medicines were useless as their expiration date was a
whole year earlier. If this medicine had been delivcred, as intended, many lives
might have been saved as severe shortages hampered treatment in Yemen.
56. Applicant wouJd emphasize that this.incident had bren one of the matters
which he had hoped to discuss with Headquarters in his cable on 24 April
1969, which had referred to "programme coverage of our operations in YAR
which cannot be discussed by communications" (doc. No. 3, Annex 45).
57. Article 101 of the Charter of the United Nations requires that the "para
mount consideration in the employment of the staff and in the determination
of conditions of service shalbe the necessity of securing the highest standards of STATEMENT Of MR. FASLA 83
efficiency, competence, and integrity". In attempting to meet these standards
of integrity and to fulfil the oath Applicant took as an employee of the United
Nations, Applicant has been penalized, his persona! and professional reputation
has been destroyed, he and his fami!y have suffered severe financial and emo
tional damage; but perhaps most importantly, the ideal of service to the
United Nations has been tarnished. Representatives of the United Nations
must place fidelity to the ideals of that Organization above considerations of
personal prudence, let alone gain.
58. As a representative of the United Nations, Applicant was bound by the
provisions of the Charter and by the Convention of Privileges and lmmunities
of the United Nations adopted 13 Fcbruary 1946.Section 21of that Convention
requires that:
"The United Nations shall co-operate at ail times with the appropriate
authorities of Members to facilitate the proper administration of justice,
secure the observance of police regulations and prevent the occurrence of
any abuse in connection with the privileges, immunities, and facilities
mentioned in this article."
Instead of ensuring that "the highest standards of efficiency, competence,
and integrity" would be maintained, the Respondent actually, even if unin
tentionally, penalized Applicant for his effort to uphold a standard of service
that one would expect of representatives of the United Nations in circumstances
where shocking derelictions were a daily aspect of United Nations operations.
59. Accordingly, the International Court of Justice is respectfully requested
to find that the United Nations Administrative Tribunal, by its failure to en
quire into the underlying circumstances and by its failure to explain its denial
of the Applicant's plea, failed to exercise its jurisdiction and committed a
fondamental error in procedure which has occasioned a failure of justice. Ap
plicant has presented, with as much documentation as possible gi-.,enhis diffi
cult circumstances of destitution, an account of the conditions in Yemen that
he was confronted by and of his efforts to rectify this situation by securing the
assistance of Headquarters officiais in UNDP. lt is in this context of routine
dereliction by the United Nations operation in Yernen that the treatment of the
Applicant as unworthy of further assignment at his post in Taiz and as unsuit
able for employment within the United Nations system as a whole becomes so
shocking and is likely to have, may already have had, a demoralizîng impact on
other conscientious employees in the United Nations system. lt is for these
basic reasons that a request to restore the basic condition of the Applicant to the
status quo ante involves a reasonable plea and one that, alone, conveys the
sense that Applicant is not being penalized for what he has done. The Applicant
realises that the Respondent may wish to contest or qualify the account of the
facts, and would welcome such an exchange, but feels confident that the accur
acy of his interpretations, given the extremity of the derelictions, would be
upheld by any impartial investigation, and that the failure to conduct such an
investigation was perhaps the most fondamental jurisdictional failure in the
proceedings before the United Nations Administrative Tribunal.
Plea (e)
60. Under this plea, the Applicant requested the Administrative Tribunal to
order the correction and completion of the Applicant's Fact Sheet which is
circulated both within and outside the United NationsDevelopment Programme,84 APPLICATION FOR REVIEW
with all the required periodic reports and evaluations of work; alternatively the
Applicant requested payment to him of two years' net base salary.
61. The attention of the International Court of Justice is respectfully drawn
to the fact that, in response to the unanimous recommendation of the United
Nations Joint Appeals Board dated 3 June 1970(doc. No. 3, Annex 2, para. 46
(i)), the UNDP formally agreed, on August 1970,to "re-examine the appellant's
fileswith the viewto filling the gaps in the recordsïn accordance with established
procedures, and bringing them up-to-date with ail required periodic reports
and evaluations of work which should then be reflected adequately in the
appellant's fact sheet" (doc. No. 3, Annex 58). However, the Administrative
Tribunal explicitly noted in its Judgement that the UNDP has not fulfilled the
obligation voluntarily accepted by it:
"... fo\lowing the Joint Appeals Board's recommendation the UNDP
prepared additional reports in order to cover ail the Applicant's service.
The Tribunal however notes that this new fact sheet produced by the Re
spondent has gaps.... No report is mentioned for the period June 1965-
June 1966." (Doc. No. li, para. Vlll.)
62. Given these circumstances, it is totally incomprehensible why the
Tribunal should have passed over in silence the Applicant's plea. Accordingly,
the International Court of Justice is respectfully requested to hold that the
Tribunal failed to exercise its jurisdiction and/or committed a fondamental
error in procedure which has occasioned a failure of justice. Although the
injustice done here is of far less consequence than the recital under plea (d),
it still represents an important failure to treat equitably a United Nations
employee who was faced with a persona! matter of great urgency. Inadequate
periodic reports create a bad impression and make it virtually impossible to
secure alternative employment within the United Nations system.
Plea (f)
63. Under this plea the Applicant requested the invalidation of the Ap
plicant's periodic report covering his service in Yemen, prepared in September
1970; alternatively, payment by the Respondent to the Applicant of two years'
net base salary, Since the Tribunal ordered the invalidation of this periodic
report, Applicant has no further comments on this plea, and accepts the relief
granted.
Plea (g)
64. Under this plea, the Applicant requested the Administrative Tribunal to
order further serious efforts by the UNDP to place the Applicant in a suitable
post within the UNDP, or within the United Nations Secretariat, or within a
United Nations Specialized Agency; alternatively, the Applicant requested
payment to him of two years' net base salary.
65. Plea (g) should not be confused with plea ( d) whîch refers to the re
storation of the Applicant to status quo ante of May 1969. By extending the
Applicant's fixed term appointment for a period of two years beyond 31 Decem
ber 1969 (plea (d)) on!y compensation for the period 1969 to 1971 would be
covered. The Applicant sought to pursue a United Nations career as a malter
of his life work. Given his recall from Yemen under such circumstances there
seems to be a basic right to have the best possible opportunity to receive a new
assignment within the United Nations system. The failure to place the Applicant
in another suitable United Nations job constitutes a permanent liability to him STATEMENT OF MR. FASLA 85
that can be partially offset by the payment sought. Plea (g) refers to the period
which would have followed the legal termination of the App\icant's employ
ment on a fixed-term basis.
"On 31 August 1970, the UNDP informed the Applicant that it did not
intend to offer him another appointment in the future, as ail possible
efforts had been made to find a suitable post for him within UNDP or with
other agencies when he wfü',under contractual status with UNDP.''
The Applicant wishes to stress that the daim of "ail possible efforts" had
been made on the basis of an incomplete and misleading Fact Sheet. Although
the Tribunal argued that "the preparation of a corrected Fact Sheet becomes
meaningless once UNDP decided not to take the necessary further steps to
find the Applicant a new assignmcnf' (doc. No. 11, para. Vlll, p. 16), the
Tribunal did not exerdse its jurisdiction and order further meaningful efforts
with a corrected Fact Sheet. lnstead, the Tribunal confined itself to making the
totally unfounded and unsupported statement that "it is not possible to rcmedy
the situation by rescinding the contested decision, by ordering performance of
the obligation contracted in 1969" (doc. No. 11, para. Xlll, pp. 18-19). lt
should be appreciated that the Tribunal reached the conclusion that the Re
spondent "did not perform in a reasonable manner the obligation which he
had undertaken". Accordingly, the International Court of Justice is respectfully
requested to advise that the Tribunal failed to exercise its jurisdiction and/or
committed a fundamental error in procedure which has occasioned a failure
of justice. Here again the U:NDP behaviour seems so unreasonable that it is,
at minimum, necessary for the Administrative Tribunal to investigate Appli
cant's argument and explain why it is unfounded.
Plea (h)
66. The Applicant would here like to state that whereas p!ea ( e) pertained
to the pending corrections, plea (h) pertains to injuries sustained by the Ap
p!icant for inadequate correction of his file in the past. A brief review of the
violations already committed by the Respondent on this issue is provided for
the Court.
The Respondent violated paragraph 13of Administrative Instruction ST/Al/
115 (Doc. No. 16) by not undertaking the required investigation of the Ap
plicant's statement of rebuttal 10·his periodic report covering his service in
Syria from 30 June 1964 to 30 June 1965.
The Respondent violated paragraph 7 of the above Administrative Instruc
tion by not providing the Applicant with an interim periodic report upon the
Applicant's reassignment to Lebanon in December 1965. Under the terms of
paragraph 7 of Administrative Instruction ST/Al/115, such an interim periodic
report was also required in view of the fact that Applicant's immediate super
visor in Syria left his post at about the same time.
The Respondent violated paragraph 7 of the above Administrative Instruc
tion by not providing the Applicant with an interim periodic report upon the
App\icant's reassignment from Lebanon to New York in June 1966. lndepen
dently of the requirements of paragraph 7 of Administrative Instruction ST/Al/
115, a periodic report in June 1966 was also called for under the terms of
paragraph 2 of the same Administrative Instruction.
The Respondent violated paragraph 2 of the above Administrative Instruc
tion by not providing the Applicant with a periodic report in June 1967.86 APPLICATION FOR REVIEW
The Respondent violated paragraph 5 of the above Administrative Instruc
tion by his erroneous choice of the Second Reporting Officer in the case of the
periodic report covering the Applicant's service from November 1966 to
November 1967.
The Respondent violated paragraph 7 of the Administrative Instruction by
not providing the Applicant with an interim periodic report upon the conclusion
of the Applicant's assignment with UNITAR in March 1968.
The Respondent violated paragraph 2 of the above Administrative Instruc
tion by not providing the Applicant with a regular periodic report in June 1968.
The Respondent violated paragraph 7 of the Administrative Instruction by
not providing the Applicant with a periodic report upon the Applicant's recall
from Yemen in May 1969. Alternatively, the Respondent violated paragraph 2
of the above Administrative Instruction by not providing the Applicant with a
regular periodic report in June 1969.
Since the Applicant served on a fixed-term appointment, the extension of
which obvious\y depended largely on his periodic reports, these repeated vio
lations of the Applicant's right to reccive regular and interim periodic reports
on the occasions specified in Administrative Instruction ST/Al/115 were
particular\y harmful.
67. The aforementioned violations by the Respondent necessarily constituted
injuries for the Applicant. The Administrative Tribunal's silence concerning
pica (h) is, therefore, all the more incomprehensible as the Tribunal expli
citly accepted the Applicant's contention that repcated violation by the UNDP
of the Administrative [nstruction ST/A(/115 had occurred (doc. No. 11,
para. IV).
68. Accordingly, the International Court of Justice is respectfu\ly requested
to advise 1hat the Tribunal failed to exercise its jurisdiction and/or committcd
a fundamental error in procedure which has occasioned a failure of justice.
Plea (i)
69. Under pica (i) the App\icant requested the Administrative Tribunal to
order payment to him of two years' net base salary as compensation for injury
sustained by the Applicant as the result of the continuous violation by the
UNDP of its obligation to make scrious efforts to find an assignment for the
Applicant. Pica (i)represents an effort by the Applicant to identify the sep
arate ingredients of injury that he believes have been incurred. Plea {i) is
closely linked with plea (g) yet the two pleas are not one and the same. Pica
(g) refers to further serious efforts for employment or the payment to the Ap
plicant of two years' net base salary. Plea (i) refcrs to the compensation for
injuries already sustained by the Applicant. The Tribunal by using the word
"compensation" to describe the sum of six months' payment which they ap
parently viewed as overlapping plea ( g) is a serious and unwarranted confusion.
(Doc. No. 1J, para. Xlll, p. 18.)
70. The failure of the Res.pondent to fulfil his obligation to make serious
efforts for the re-employment of the Applicant resulted in the Applicant's
being thrust into a state of flux, of insecurity, and confusion. Furthermore,
the Applicant Iost al!opportunity for gainful employment during this period, and
at least deserves a reasoned denial by the Tribunal of this plea.
71. Accordingly, the International Court of Justice is respectfully requested
to advise that the Tribunal failed to exercise its jurisdiction and/or committed
a fondamental error in procedure which has occasioned a failure of justice. STATEMENT OF MR, FASLA 87
Plea (j)
72. Under plea (j) the Applicant requested the Administrative Tribunal to
order payment to him of five years' net base salary, as compensation for injury
sustained by the App!icant as the result of prejudice displayed against him.
73. Once more, the Tribunal, whi!e coming to the unprecedented conclusion
for the first time in the history of the United Nations that the Applicant had
been the victim of prejudice displayed against him by two senior officiais of
the UNDP, passed over in complcte silence the Applicant's plea for compen
sation. This failure of enquiry and explanation is ail the more blatant given
the Tribunal's finding. Referring to the periodic report on the Applicant's
performance submitted by the Resident Representative in September !970,
the Tribunal concluded that "the ratings and the hand-written comments,
made after an interval of more than one year, can be due only to a violence of
feeling and Jack of self-control which, in this case, reveal prejudice on the part
of the first reporting officer against the staff member who was the subject of the
report". (Ibid.,para. XI, p. 18.) Referring to the second reporting officer's
comments, the Tribunal concluded:
"... that the prejudice shown by the first reporting officer towards the
Applicant was in no way corrected by the superior officer required to
participate in the drafting of the report which the Respondent had agreed
to prepare, as he was obliged to do under the Staff Rules" (ibid.,para. Xll,
p. 18).
74. After considering the whole of the report, the Tribunal acceded to the
Applicant's plea (f) and ordered the invalidation of the previously mentioned
prejudiced report. According to the Tribunal's own statements, two senior
officiais of the UNDP displayed prejudice against the Applicant. This was not
the first time in the Applicant's career that he had been exposed to prejudice.
Evidence of prejudice against the Applicant abounds throughout the history
of the Applicant's association with the UNDP. In November 1965, despite
the circumstances, the Applicant rcceived a surprisingly good periodic report.
Under Section I, the Resident Representative gave to the App!icant average
ratings in nine categories, below-average ratings in three categories, and an
above-average rating in one category. Nevertheless, the second reporting officer
(at United Nations Headquarters) rated the App\icant as being over-all below
average. ltshould be noted that durîng the entire period covered by the report,
the second reporting officcr had been Deputy Resident Representative in Malay
sia; he had at no lime exercised any supervisory authority over the Applicant
and, in fac!, had never even met the Applicant. This second reportîng officer
was the same man who had signed the periodic report ordered invalidated by
the Tribunal, the report covering the period of service in Yemen.
75. When the Applicant signed the report in November 1965, he appended
to it a written statement of rebuttal. Having been informed of the rebuttal, the
Resident Representative wrote to UNTAB/Special Fund in New York, inter
alia:
"l am glad to say that Mr. Fasla's performance has definitely improved
over the past few months. He has shown increasing interest in his work. He
takes his responsibilities seriously." (Doc. No. 3, Annex 10.)
However, these favourable comments which effectively constituted a modi
fication of the Applicant's periodic report were not joined to the report nor
inserted in the Applicant's Official Status File in any other manner. Itwas only88 APPLICATION FOR REVIEW
four years later that they were made available to the Joint Appeals Board. Nor
did UNTAB/Special Fund take further action with regard to Applicant's
rebuttaL Although the Applicant remained in Syrîa for another six months
beyond the period covered in his first periodic report, no further report was
issued to him concerning his performance in the service of the UNTAB/
Special Fund officein Damascus. 1tisevident from the Resident Representative's
modified vfows quoted above that such a further report would have been fa
vourable to the Applicant.
76. There was also the concealrnent of two favourable assessments of the
Applicant's performance in Lebanon (doc. No. 3, Annex 86), followed imme
diately by the failure to request a periodic report from the authors of those
assessments {ibid.).There is the Jack of consultation wîth the Applicant's
supervisor with regard to the Applicant's reassignrnent within the UNDP in
New York in January 1967 (ibid.). There is the mystery surrounding the
acceptance and subsequent rejection of the Applicant's candidacy by the FAO
(ibid.).There is the circumvenlion of the Applicant's second supervising officer
with regard to the periodic report late in 1967 {ibid.).There is the failure to
request a periodic report from UNITAR {ibid.).There is the assignment of the
Applicant to Yemen under a Resident Representative whose character seems
to have been well known to the UNDP. There is the request to the Resident
Representative in Yemen in January 1969 to seek the Applicant's resignation
(ibid.).There is the concealment of the report of the senior UNOP official who
visited Yemen in February 1969.There is the release of prejudicial information
about the Applicant to the Permanent Representative of Yemen to the United
Nations, in violation of Staff Regulation 1.5 (ibid.). There is the apparent
b[aming of the Applicant for errors committed by high-level officials in the
UNDP and at FAO, as well as the apparent decision to remove Applicant
from the scene to accommodate pressures from the FAO (ibid.).There is the
concealment of the favourable assessment of the Applicant's performance by
the Consultant to the UNDP Administrator in March 1969 (ibid.).There is
the apparent decision taken by UNDP in March 1969 to dispense with the
Applicant's services (ibid.).There is the almost total rupture of contact be
tween the UNDP and the Applicant during the period March-May 1969 (ibid.).
There are the perplexing "consultations" with the UNDP in New York {ibid.).
There is the concealment of a further favourable assessment of the Applicant's
performance by the new UNDP Special Representative in Yemen (ibid.).
There are the so-called efforts to find another assignment for the Applicant
which were conducted in such a way as to assure their failure. In light of this
pattern of abuse, the Tribunal's bypassing of plea (j) constitutes a serious
failure of enquiry with damaging results for Applicant's basic contention
77. Accordingly, the International Court of Justice is respectfully requested
to advise that the Tribunal failed to exercise itsjurisdiction and/or committed a
fundamental error in procedure which has occasioned a failure of justice,
P/ea (k)
78. Under plea (k) the Applicant requested the Administrative Tribunal to
order payment to him of the symbolic amount of one Yemen rial, as compensa
tion for the emotional and moral suffering inflicted by the UNDP upon the
Applicant. It is, admittedly, an unorthodox plea, but it does arise out of a very
special set of circumstances.
79. Plea {k) is of extreme symbolic value to the Applicant. lt involves an
acknowledgement of the emotional and moral suffering that was inflicted upon STATEMENT OF MR, FASLA 89
him during the period of his stay in Yemen. During this period the Applicant
made continuous efforts to combat the corruption that he encountered in
Yemen while trying to fulfil the humanitarian mission of the United Nations.
Failure of the Tribunal to even consider this plea implies the legal irrelevance
of the moral and emotional suffering experienced by the Applicant. How can
this denial be reconciled with the Tribunal's explicit acknowledgement that
the Applicant has been the abject of prejudice on the part of the Resident
Representative inYemen? Howcan it bereconciled with the fact that the difficult
conditions prevailing in the UNDP officein Yemen were well known to several
officiaisf the UNDP and explicitly recognized by the Joint Appeals Board?
(doc. No. 3, Annex 2, para. 45). The symbolic amount of one Yemen rial as
requested relief was selected to underscore the fact that due to the iUegal
currency exchange operations engaged in by several UNDP officiais that the
UNDP was at the time a symptom of Yemeni misery and degradation rather
than part of ils rectification.
80. The International Court of Justice is respectfully requested to advise
that the Tribunal, by failing to even consider this plea, failed to exercise its
jurisdiction and/or committed a fundamental error in procedure which has
occasioned a failure of justice.
Plea (/)
81. Under plea (/) the Applicant requested the Administrative Tribunal to
order payment to him of one year's net base salary, as compensation for delays
in the consideration of the Applicant's case, especially in viewof the fact that no
Joint Appeals Board was in existence during the first four months of 1969
because the Respondent had failed to appoint a panel of chairmen.
82. The Administrative Tribunal failed to consider fully this plea. lt con
fined itself to noting certain dates and to stating the conclusion "that no ab
normal delay attributable to the Respondent can be found in the conduct of
this case, and that the request must be rejected" (doc. No. 11, para. XVI).
The Tribunal neither defined its criteria for "abnormal delay" nor commented
on the Applicant's argument that no United Nations Joint Appeals Board was
in existence during the first four months of 1969contrary to the rule established.
The Applicant wishes to reiterate that the non-availability of the appellate
machinery delayed consideration of his case for several months, and that such
delay certain!y is "abnomial" in view of the requirement in Staff Rule 111.3
that the Joint Appeals Board "shall act with the maximum of dispatch" and
"shall submit its report to the Secretary-General within three weeksafter under
taking consideration of an app!!al". (Doc. No. 3,Annex 15.)Asto theTribunal's
statement that the Applicant himseif "requested extensions of the time limits
on several occasions" (doc. No. 11, para. XVI) the Applicant wishes ta point
out that such requests were motivated by the need ta submit the two Joint
Appeals Board cases to the Tribunal jointly rather than separately, as requested
by the Executive Secretary of the Administrative Tribunal, and that, in any
case, the App!icant never asked to be compensated for delays caused by himself.
83. Under the circumstances, the International Court of Justice is respect
fully reque::.tedto advise that the Tribunal failed to exercise its jurisdiction
and/or committed a fondamental error in procedure which has occasioned a
failure of justice.
Plea (m)
84. Under plea (m) the Applicant requested the payment to the Applicant
of the sum of $1,000 for expenses in view of the fact that, although the Ap-90 APPLICATION FOR REVIEW
plicant was represented by a member of the panel of counsel, the complexîty
of the case necessitated the App!icant's travel from his place of residence in
California to New York in May 1970 as well as frequent trans-continental
telephone calls to the Applicant's counsel before and after that date. Concerning
this plea, the Tribunal merely stated: "Since the Applicant had the assistance
of a member of the panel of counsel, the Tribunal finds this request unfounded
and rejects it."(Doc. No. 11, para. XVIII.)
85. lt is true that the Applicant benefited from the assistance of a staff
member on the list of counsel and he gratefully expressed his appreciation for
the diligence and competence of that staff member. Yet, the complexity of the
case which caused the Applicant to incur reasonable and unavoidable expenses
far in excess of normal litigation costs can be attested to by the tremendous
number of documents necessary to support the Applicant's basic contentions.
The Tribunal itself needed 24 single-spaced pages to give a bare outline of the
facts and did not even deal with several of the Applicant's pleas.
86. After the termination of the Applicant's employment, he moved hîs
family back to California, where they had ties, and from where he had been
initia!ly recruited.ot wishing to be separated the whole time from his family,
and naturally wishing to avoid the substantial expenses involved in maintaining
himself in New York separate from the family residence, the Applicant returned
to Ca\ifornia.
87. As the inevitable questions arose in the course of this complex and in
volved litigation, it was necessary for the Applicant to place several trans
continental telephone calls and, on one occasion, to fly to New York to con
suit with his counsel. Anyone acquainted with complex litigation would recog
nize the necessity of frequent consultation between counsel and client, and the
impossibility of consulting solely through correspondence. The Applicant
would also note that his claimed expenses would have been considerably higher
had he remained in New York for the duration.
88. Under these circumstances, it seems evident that these expenses were
reasonable and that they could not have been avoided ex.cept by an extremely
inefficient and ineffective client-counsel relationship (thereby prejudicing the
Applicant's chances of success). The Applicant's costs were in excess of normal
litigation costs before the Administrative Tribunal, which for most app\icants
involve only paper, copying, typing and other incidentals.
89. The Tribunal has failed to exercise the jurisdiction and competence that
it has declared applicable on numerous occasions to cases decided by it. From
its very inception, it has laid down a consistent pattern of awarding costs to
successful applicants. ln Judgement No. 2, Auben and 14 Others, the Tribunal
awarded costs for stenography, typing, translating, and outside attorney's fees.
ln Judgement No. 15, Robinson, 1he Tribunal also awarded reimbursement of
costs. However, a futier explanation of the criteria to be applied to requests for
the reimbursement of costs was given in Judgement No. 18, Crawford, where
the Tribunal stated:
"15. Whereas the Tribunal having received from the Applicant a re
quest for reimbursement of legal costs ... notes, with regard to its power
to pronounce 011 suc/z reques,s, that Article 12 of its Rules authorizes ap
plicants to be represented by counsel, and that accordingly costs may be
incurred in submitting daims. It recalls in a general statement of 18
December 1950 it pointed out that it could grant compensation for such
costs if they are reasonable in amount and if they exceed the normal
expenses of litigation before the Tribunal. Recalling the case law of the STATEMENT Or MR. "i'ASLA 91
League of Nations Tribunal (Judgements No. 13of7 March 1934and No.
24 of 26 February 1946), 'il n'y a aucune raison pour déroger au principe
généralde droit, que les dépens, sauf compensation, sont payés par la
partie qui succombe', the Tribunal considers that it is competent to pro
nounce upon the costs." (Emphasis added.)
See also Bastid, "Les Tribunaux administratifs internationaux et leur
jurisprudence", 92 Hague Recueil des cours, 347 at 503 (1957-11).
90. The Tribunal awarded cosL<i;n that case and in Judgements Nos. 28-38,
Wallach, Gordon, Svenchansky, Harris, Eldridge, Glassman, 0/der, Bancroft,
Elveson, Reed, Glaser. Costs were a]so allowed to the successful Applicants in
Judgements 76-80, Champoury, Cuffinet, Ducret, Fath and Snape.
91. Even after the Tribunal evidently changed its practice of awarding costs
for outside attorney fees becausc there was provision for representation of
applicants by United Nations staff members who were on the list of counsel,
the Tribunal has continued to consider itself competent to assess costs in
favour of successful applicants. (See, e.g., Judgement No. 92, Higgins, and
Judgement No. 123, Roy (31 October 1968).)
92. Applicant here did not request the payment of costs for the assistance of
outside counsel for representation before the Tribunal, such costs were dis
allowed in the Roy case. However. he incurred costs, exclusive of counsel fees,
which were necessary, unavoidablc and in excess of normal litigation expenses
before the Tribunal.
93. The Tribunal itself has previously found that it had jurisdiction to award
such costs to a successful applicant and that such a practice was supported by
the jurisprudence of the League of Nations Tribunal, considerations of fairness
and equity, and by general principles of law. (Applicant would also note that
the Administrative Tribunal of the International Labour Organisation like
wise considers itself competent to award substantia\ costs to successfu\ ap
plicants. See Judgement No. 191, in re Ballo, 15 May 1972.) The Tribunal thus
rejected the argument of the Legal Department of the United Nations that such
general principles do not exist. (See Memorandum of the Legal Department
13 December 1950 [A/CN.5/5].)
94. The Applicant submits that the Administrative Tribunal clearly failed
to consider his p!ea for the reimbursement of costs which were necessary,
unavoidable and in excess of normal litigation expenses before the Tribunal.
95. Accordingly, the International Court of Justice is respectfully requested
to advise that the Tribunal failed to exercise its jurisdiction and/or committed
a fondamental error in procedure which has occasioned a failure of justice.
P/ea (n)
96. Under plea (n) the Applicant requested the Administrative Tribunal to
order payment to him of five years' net base salary, as compensation for the
damage inflicted on the Applicant's professional reputation and career pros·
pects as the result of the circulation by the UNDP, both within and outside
the United Nations, of incompletc and misleading information concerning the
App1icant.
97. Once more, the Tribunal not only did not award compensation but
totally ignored the plea in its Judgement, although it did not challenge the
Applicant's basic contentions concerning the facts underlying his plea. ln
particular, the Tribunal found that an "incomplete and mislcading" fact sheet
concerning the Applicant's performance record was "circulated" by the
UNDP "to the competent departments of UNDP, the United Nations and92 APPLICATION FOR REVIEW
specialized agencies", and that this circumstance ..seriously affected his
candidacy for a further extension of his contract or for employment by other
agencies" (doc. No. 11,paras. IV and V).
98. Applicant believesthat Articles 2 and 9 of the Statute give the Tribunal
legal competence to award compensation to the Applîcant for injuries inflicted
by the Respondent upon the Applicant's professional reputation and future
employment opportunities. Article 9 (3) states that where applicable, ''com
pensation sha/1be fixed by the Tribunal". (Emphasis added.) The use of the
imperative "shall" is significant. The Applicant submits that the correct con
struction of section 3 of Article 9 removes from the Tribunal any discretion to
refrain from awarding compensation where the wrong cannot be remedied by
the relief provided for in section I of Article 9 and where there has been no
refutation of the facts underlying the daim and where the claimant has demon
strated the extent of injury sustained in a reasonable way.
99. The validity of the Applicant's claim that damages were inflicted to his
professional reputation and career prospects as the result of misleading in
formation can be substantiated by the letter of the Chief, Secretariat Recruit
ment Service, United Nations Officeof Personnel to UNDP. He wrote, "Quite
frankly, Mr. Fasla's periodic reports as surnmarized on his fact sheet do not
encourage me to pursue his candidature". (Doc. No. 3, Annex 52.) More
over, the UNDP Acting Resident Representative in Morocco, who received
Mr. Fasla's report, wrote, "I am sorry not to be able to be more positive on
Mr. Fasla'scandidature, but the ratings of mycolleagues at Headquarters and
in the field prevent me from doing so". (Doc. No. 3, Annex 53.)
100. Regarding the award of damages, the Tribunal bas stated:
"... in awarding damages [the Tribunal] has to be satisfied that the
damages claimed follow naturally as a consequenceof the action contested.
It is a well-established rule of law that damages which are remote and
contingent cannot be recovered." (JudgementNo. 92, Higgins, para. XXI.)
ltis dear that damage to professional reputation and employment oppor
tunities claimed by the Applicant follow naturally from the actions of the
Respondent in this case. This is not an instance of tortious acts having little
or no bearing upon the damage and injury claimed. Rather, the acts attributable
to the Respondent concerning falsification and distortion of the Applicant's
employment record and its circulation could not possibly bear more directly
upon his career prospects. That the damage is neither remote nor contingent is
suggested by the two letters quoted above. (Doc. No. 3, Annexes 52 and 53.)
JO!. The Applicant would Iike to point out that there was no justification
for the Tribunal's action by reason ·Ofthe fact that there was no underlying
wrongful act. The Tribunal itself declared that the Applicant's file had been
distorted with the tacit approval, ifnot the actual connivance, of the Director,
Bureau of Administrative Management and Budget, UNDP (doc. No. 11,para.
XII). This is prima facie evidence of misuse of power with improper motive, it
being quite apparent from the findings of the Tribunal that the actions of the
Director, Bureau of Administrative Management and Budget, UNDP, were
motivated by prejudicial considerations. Despite having recognized the wrong
ful acts attributable to the Respondent (doc. No. 11, paras. VIII, IX, X, XI,
XII), the Tribunal failed to provide a remedy.
102. Therefore, the International Court of Justice is respectfully requested
to advise that the Administrative Tribunal failed to exercise its jurisdîction
and/or committed a fundamental error in procedure which hasoccasioneda fail
ure of justice. STATEMENT OF MR. FASLA 93
Plea (o)
103. Under this plea, (o), the Applicant requested the Administrative
Tribunal ta order payment to him of one year's net base salary as compensation
for the further de\ay in the consideration of the Applicant's case early in 1971.
104. This delay was caused by the failure of the Respondent to present his
decision concerning the second Appeal of the Applicant by mid-February 1971.
The sequence of events was as follows:
On 17 September 1970, the Applicant submitted through his counsel a
second Appeal to the Joint Appeals Board concerning the financial and legal
implications of his recall from Yemen by the UNDP in May 1969. The Joint
Appeals Board met to consider the case in November and December 1970, and
transmitted its report to the Secretary-General on 16 January 1971. On
19 January 1971 the Applicant's counsel wrote a memorandum to the Chief,
Staff Services, Office of Personnel, drawing attention to the fact that the Ad
ministrative Tribunal would not be able to consider the Application, together
with the supplementary material at its session in March/April 1971 unless the
Secretary-General's decision concerning the second Appeal was made known
by mid-February at the latest. On 25 January 197I, the Chief, Staff Services,
Office of Personnel, rep1ied that hc had checked with the Acting Chief of Rules
and Procedures of the Office of Personnel and had been assured that the final
recommendation would be submitted to the Secretary-General at the earliest
possible date. (Doc. No. 3, Annex 71, emphasis added.) However, the Secre
tary-General's decision on the second appeal was communicated to the Applicant
only in March 1971 by means of a Jetter from the Director of Personnel dated
8 March 1971, which reached the Applicant on 11 March 1971. Accordingly, it
was not possible to complete the written proceedings concerning the supple
mentary material prier to the opcning of the Tribunal's session on 29 March
I971. This delay was caused by the Respondent and resulted in the postpone
ment of the Tribunal's decision until April 1972.
105. The App\icant contends that this delay on the part of the Respondent
was either deliberate or wrongfully negligent and delayed unreasonably a
decision on this case. To establish this contention, Applicant respectfully
requests the Court to order the production of the dossier of the Administrative
Tribunal, as required by Article 12, section 2, of the Statute and Rules of the
United Nations Administrative Tribunal which states:
"The Executive Secretary shall make for each case a dossier which
shaU record a\\ actions taken in connexion with the preparation of the
case for trial, the dates thereof, and the dates on which any document or
notification forming part of the procedure isreceived in or despatched from
this office" (doc.No. 1, Annex 13).
Applicant also requests the production of the minutes of the Tribunal involving
the proceedings of his case.
I06. The Applicant was entitled ta have the merits of this plea considered
by the Tribunal. Thus the Applicant respectful\y requests the International
Court of Justice to advise that the Administrative Tribunal failed to exercise its
jurisdiction and/or committed a fundamental error in procedure which has
occasioned a failure of justice.
Plea (p)
107. Under plea (p) the Applicant requested the Administrative Tribunal to
seek recalculation by the UNDP of the Applicant's salary and subsistence al-94 APPLICATION FOR REVIEW
lowances in the Yemen Arab Republic on the basis of the actual duration of
the Applicant's assignment there, and to order payment to the Applicant of the
difference between the recalculated amount and the amount the Applicant ac
tually received whi[e in the Yemen Arab Republic.
IOS. The Administrative Tribunal rejected this plea (doc. No. 1l, para. XV)
without giving any evident consideration to the essential fact that in the pro
ceedings before the Joint Appeals Board, the representative of the Secretary
General stated that the UNDP would have recalculated the Applicant's salary
and allowances if he had been assigned to another post within one year of his
assignment to the Yemen post (doc. No. 3, Annex 67, para. 34). However, the
Respondent based the refusai to recalculate on his argument that the Appli
cant had never been reassigned after his recall from Yemen, implying that the
Applicant was in some "floating'' capacity until the date of his separation
(ibid., para. 24). Since the Joint Appeals Board subsequently found that the
Applicant's duty station had, in fact, been changed from Yemen to New York
in May 1969 (ibid., para. 40), and since this finding was accepted by the Sec
retary-General (doc. No. 3, Annex 68), it would appear that the Administrative
Tribunal should have ordered the UNDP to treat this setof circums!ances as
equivalent to a reassignment ordered within one year. Applicant would like to
draw attention to the dissenting opinion by the member elected by the staff,
attached to the report of the Joint Appeals Board of 18January 1971 (doc. No.
3, Annex 67):
''I concur completely with the Board's finding, in paragraph 40 of its re
port,that in May 1969,the appellant was transferred to Headquarters and his
duty station was changed to New York. Accordingly, f support the Board's
recommendation, made in the same paragraph, that the appcllant should
receive the difference between the New York and Taiz post adjustments for
the period from May to December 1969.
However, l cannot agree with the majority view of the Board, recorded
in paragraph 41 of its report, that no recommendation should be made in
favour of retroactive adjustment of the appellant's salary in Yemen. In
my opinion, a c/ear case for such an adjustment has been estab!ished by the
statement of the representative of the Secretary-General which affirms that
the UN OP would have recalculated the appellant's salary and allowances
if he had been assigned to anothcr post within one year of his assignment
to the Yemen post (para. 34 of the report). I am supported in this opinion
by the fact that the UNDP has not attributed to the appel!ant the respon·
sibility for his abrupt recall. Under the circumstances, 1 must regard the
Board's recommendation of a conditional ex gratia payment as neither
adequate nor equitable to the appellant."
109. Applicant believes this statement to be persuasive. ln any event, the
Tribunal had an obligation to at Jeast provide Applicant with a reasoned
rejection of his plea.
110. The International Court of Justice is therefore respectfully requested
to advise that the Administrative Tribunal failed to exercise its jurisdiction
and/or committed a fondamental error in procedure which has occasioned a
failure of justice.
P/ea (q)
111. Under pica ( q) the Applicant requested the Administrative Tribunal
to order payment to him of five years' net base salary as compensation for an
illegal suspension from duty. Applicant contends that he was placed on special STATEMliNT OF MR. FASLA 95
leave with pay from 10 September 1969 until 31 December 1969 against his
will, and that this action was tantamount to a suspension from duty as envisaged
in Staff Rule 110.4 (doc. No. 1, Annex 15):
"Suspension Pending Investigation
Ifa charge of misconduct is made against a staff member, and the
Secretary-General so decides, the staff member may be suspended from
duty, with or without pay, pending investigation, the suspension being
without prejudice to the rights of the staff member."
Since the UNDP brought no charges against him, this suspension was im
permissible, and, moreover, injured Applicant's prospects for obtaining a
further appointment. As such, the suspension constituted a separate wrong.
112. Applicant asserts that he neither had requested permission to go on
home leave nor became a party to any agreement concerning such leave. He
was ordered to proceed on home leave on the original basis of his request
made in April 1969 from Yemen to report in person on very delicate field
circumstances. The imposed and unplanned nature of his home leave may be
seen from the text of his cable from Algiers dated 17 June 1969 ( doc. No. 3,
Annex 54).
113. The Applicant asserts that terms contained in a legal document must be
interpreted according to "their natural and ordinary meaning in the context
in which they occur" (J.C.J. Reports 1950, p. 8).The ordinary meaning of the
key operative term in Staff Rule !05.2 (a), "granted" supports the Applicant's
contention. The te)(tof Staff Rule 105.2 (a) (doc. No. 1,Annex 15)is as follows:
"Special Leave
(a) Special Ieave, with fullor partial pay or without pay, may be granted
for advanced study or research in the interest of the United Nations, in
cases of extended i\lness, or for other important reasons forsuch period as
the Secretary-General may prescribe." (Emphasis added.)
Accordingly, the special Ieave referred to in Staff Rule 105.2 (a) is a leave
requested by the staff member on his own initiative and in his own interest.
This interpretation is strongly implied by the listf purposes in the statement of
the rule for which special leave may be granted. As the Applicant never re
quested special leave, and had no reason to do so, the special leave conferred
by the UNDP fiat clearly does not fallunder the provisions of Staff Rule
105.2 (a).
114. The Tribunal rejected this plea, stating that the Applicant's placement
on special leave in 1969 was correct in view of the wide discretion given the
Secretary-General under Regulation 5.2of the Staff Regulations which provides:
"Special leave may be authori2ed by the Secretary-General in exceptional
cases."
115. The Applicant respectfully submits that the Tribunal's reasoning com
pletely ignores the difference in meaning between authorization and imposition,
and he would draw the attention of the International Court of Justice to para
graph 3 of the dissenting opinion by the member elected by the staff, attached
to the report of the Joint Appeals Board of 18 January 1971 (doc. No. 3, Annex
67):
"Fina\\y, l am unable to subscribe to the majority view of the Board,
stated in paragraph 42 of its report, that the placement of the appellant
on leave represented a valid exercise of administrative authority under the
Staff Rules and Regulations of the United Nations. In my opinion, the96 APPLICATION FOR REVIEW
right to perform one's functions is a fundamental right under any contract
of employment. That right must not be abridged by the imposition of
special leave under Staff Rule 105.2 which applies to an altogether different
situation. In the present case, the arbitrary nature of this action was ag
gravated by the failure of the UNDP to substantiate to the Board the
alleged urgency of this exceptional measure, as well as by the failure of
the UNDP to employ the appe!lant at Headquarters while a new assign
ment was being sought for him. It is also obvious tome that the barring of
the appellant from the functions for which he had been recruited diminished
his prospects of obtaining an extension of his fixed-term contract."
The Tribunal also maintained that "the Applicant raised no objection to the
granting of special leave with full pay when he was informed on 22 May 1969
that he would be placed in that situation after the end of his home leave, if
there was no possibility of employing him" {doc. No. 11, para. XIV). The
Tribunal's statement is misleading in view of the fact that the Applicant had no
opportunity to object to a proposed administrative decision before it was
formally made. After the decision was made the Applicant did protest on
12 September 1969.
116. ln view of this evidence and of the evidence presented in plea ( d),the
International Court of Justice is respectfully requested to advise that the
Tribunal failed to exercise its jurisdictîon and/or committed a fundamental
error in procedure which has occasioned a failure of justice.
117. In considering these various pleas the Applicant has tried to show his
basic rationale for each one to make it clear that he was the victim of a series
of separate injuries. The Applicant also emphasizes in this presentation the
fundamental character of plea ( d) from which the other injuries are ail, in a
sense, derivative. The Applicant did sustain multiple injuries arising from
multiple wrongs and believes that justice would be served by their reimburse
ment. The limited access of Applicant to the documentary record and his
absence of financial resources has made the factual recitals less authoritative
than is desirable. Nevertheless, Applicant believes that a fair consideration of
the whole record in this case would sustain bis basic contentions about the
deplorable rote of the UNDP operation in Yemen and about his subsequent
treatment by the Headquarters office in New York. ln any event, Applicant
believes thereis ample basis for this Court to conclude that the United Nations
Administrative Tribunal "failed to exercise jurisdiction vested in it" and "com
mitted" several fundamental errors "in procedure which has occasioned a
failure of justice" 'l-Vrespect to Applicant.
118. Prior to the conclusion of the Applicant's statement the Applicant
would like to oppose as unacceptable the position taken by the Respondent
regarding the status of the General Committee and the production of docu
ments in the case by referring this Court to "Documentation relating to the
formulation of Article I of the Statute of the Administrative Tribunal",
"Documentation of the Special Committee on Review of Administrative Tri
bunal Judgements", "Documentation of the Tenth Session of the General
Assembly" and "Documentation of the Twelfth Session of the General Assem
bly". Applicant feels that the Respondent seeks to shirt the emphasis from the
two questions for which the advisory opinion was requested to a determination
of the legitimacy of the General Committee and the extent and nature of its
powers.
119. The attention of the International Court of Justice is also drawn to the
following consideration: in the Secretary-General's Bulletin (ST/SGB/131) STATEMENT OF MR. FASLA 97
of October 1966on page 13, the General Legal Division of the Secretariat is ex
pected to "represent the Secretary-General before the Administrative Tribunal
and, on request, advise the Tribunal on legal questions". One must question the
adequacy of such representation in cases, such as the present one, involving
the Secretary-General as Respondent. An advisor is assumed to serve in the
capacity of a disinterested third party. How can the "advisor" simultaneously
be the Respondent and at the samc time be impartial?
Conclusions
120. The Applicant respectfully submits that the prime public issue before
the International Court of Justice centres around bis contention that the
United Nations failure to renew the Applicant's fixed-term contract with the
UNDP, which ran out in Oecember 1969,was an intentional or negligent con
sequence of his efforts to deal with the deplorable conditions in the Yemen
office.
121. Other issues, some of general importance others of particular interest,
are presented by the dispute between the Applicant and the Respondent:
(1) whether some high officiais of the UNDP acted with prejudice toward the
Applicant;
(2) whether the abuses of the United Nations' practice of including periodic
reports in an employee's persona! status file (including rebuttals) were a
factor in the non-renewal of his contract;
(3) whether the Appticant is entitled to independent damages for the loss of
his professional reputation because of the employment consequences of the
Respondent's negligent or malicious failures to maintain the Applicant's
file in good order; the suppression of favourable material is particularly
suspicious in this regard;
(4) whether the Applicant is entitled, under the relevant Staff Rules, to re
adjustments in certain allowances because his tenure in Yemen was suddenly
and prematurely terminated before the lapse of a year;
(5) whether the Secretary-General has the power to impose "special leave"
under the cited Staff Rules in a case of this sort where general interests are
at stake;
(6) whether or not there should be some reimbursement to Applicant of the
extraordinary costs of the appellate proceedings in this case.
122. Ali these issues relate to whether the United Nations Administrative
Tribunal properly discharged its functions in the proceedings below. On the
other hand, the Applkant appreciates the obligation of this Court to respond
to the question put to it by the General Assembly's Committee for the Review
of the Administrative Tribunal Judgements. At the same time Applicant re
spectfully believesthat, important as these issues and terms are, the Court must
shape that response in light of the wider concerns of justice in this case that
arise from the denial of any opportunity by the Applicant, so far, to have his
main grievance evaluated. So far, on this bigger concern, the Applicant has
failed to secure a hearing from either of the two lower bodies before which he
has previously put his case. These tribunals, perhaps understandably for
speciali:tedadministrative tribunais, have viewedthe basic facts of mistreatment
arising out of United Nations dere,lictionin Yemen as beyond their ken. Thus,
both the Joint Appeals Board and the Administrative Tribunal, each of which
nevertheless rendered responses somewhat favourable to the Applicant in some
respects (including, for instance, vindicating his daims on the important98 APPLICATION FOR REVIEW
prejudice issue) refrained from determining whether the non-renewal of the
Applicant's contract was a direc! consequence of his effort to mitigate and end
corruption and irregularity in the United Nations operations in the Yemen
Arab Republic and whether Applicant's actions to clear up the Yemen mess
had "embarrassed" his superiors and organization at Headquarters. In other
words, the acknowledged failures to maintain Applicant's file in fair condition
or to make an adequate search for further employment must be linked to the
underlying factual claim of the Applicant. It is this alleged linkage that gives
this case its peculiar significance and has caused the Applicant to become so
disillusioned with the United Nations. ln a more technical vein, it is the failure
of the Administrative Tribunal to investigate the link between Applicant's
response to corruption in the Yemen office of the UNDP and the subsequent
treatment of him at Headquarters that constituces the main basis for an affirm
ative response to the two questions put to this Court for an advisory opinion.
123. The Joint Appeals Board, for instance, addressing itself to the issue of
the prevalence of corruption among some high United Nations officiais in the
Yemen Arab Republic during the Applicant's period of service there, pleaded
its inabilityto pronounce on it thus:
"42. The Board is conscious that it was not within its responsibilities
to comment upon the conditions prevailing in the UNDP offices in Syria
and Yemen and it is of the view that the appellant's references to the
Resident Representative in Yemen were relevant only if it were shown that
the Resident Representative's aclions had in any way refleçted prejudice
against the appellant."
The Applicant submits that the focus of his case before the International Court
of Justice, the world's highest judicial tribunal,must now necessarily shift to
the question of obtaining guidance as to the relernnce of this issue. The issue is
important not merely because upon its determination depends the dispensation
of justice or injustice to the Applicant, but its resolution bears, indeed, on the
entire question of how United Nations officiais should conduct themse!ves
whenever confronted by a conflict between their solemn oath to serve the
Organization in accordance with its high ideals of integrity and honour and
their narrower concern with career prospects and bureaucratie loyalty.
124. So far the tribunals in this case have not touched on this underlying
question which must be dealt with as the only proper basis on which to assess
the quantum and character of damages in monetary terms. It is for this reason
exceedingly disappointing that the United Nations, a supra-national bureau
cracy dedicated to the highest human ideals, has so far failed utterly to vindicate
the App\icant's efforts to vindicate elimination of corruption in a small but
important corner of its operations, and has instead effectively destroyed his
career as an international civil servant. The Applicant has know\edge that,
following his exposures of the scandalous state of affairs in UNDP operations
in the Yemen Arab Republic, a high-level team of investigators frorn the Or
ganization Jooked into and reported on the situation that confirmed his por
trayal. Such a report should be obtained to enable this Court to confirrn for it
self the accuracyof Applicant's depiction of drcumstances. ltshould be pointed
out that despite the UNDP's own effort to rectify its errors in line with and in
response to Applicant's disclosures, there was, nevertheless, no impulse or
willingness to reconsider the treatment of the Applicant. ltmay be, although
this is speculation, that the Applicant was viewed like the ancient messengers
who brought bad news to the king, and were punished for the news, rather than
being rewarded for their service. STATEMENT OF MR. FASLA 99
125. If, in the light of this central reality in the controversy, this Cowere
to uphold the Respondent's case on some narrow, cechnical or legal ground, it
would, in effect, be sending a signal to the men and women who serve in the
United Nations Organization that they dare not expose any corruption or ir
regularities in their Organizationor they will risk losing their jobs, ruining their
careers and subjecting their families to the traumas of financial insecurity,
possihly for an indefinite period of time.
126. This brief explanation of Applicant's pleas seeks to demonstrate the
various categories of damage inflictcd upon the Applicant in these circumstances
of recall and non-renewal of his contract. The Applicant wishes to stress that,
at this point in lime, after three years of litigation, materia{ compensation with
out some provision for reinstatement, including a rehabilitation of Applicant's
reputation, is not satisfactory relief. Very important issues of principle that
touch on the Charter, on the integrity and morale of the international civil
service, and on fondamental questions of human rights are at stake.
127. Applicant also requests that his counsel, Professor Richard A. Falk of
Princeton University, be given an opportunity to supplement this written
statement with an oral presentation. Because of tîme limitations on counsel
and the absence of any financial resources for the legal preparation, this written
statement does not provide as strong a presentation of Applicant's position as
is possible. Applicant, therefore, rcquests this exceptional grant of an oppor
tunity for oral presentation by his counsel.
Slatement prepared and submîtted on
behalf of Mr. Mohamed Fas/a
(Signed) Richard A. FALK,
Albert G. Milbank Professor
of International Law
Princeton University.
Date: 3 December 1972.100 APPLICATION FOR REVIEW
LIST OF ATTACHMENTS TO THE CORRECTED
STATEMENT OF THE VIEWS OF MR. MOHAMED FASLA 1
1. Cable from Mr. Hardy to Mr. Taff, 24 April 1972
Cable from Mr. Taff to Mr. Hardy, 21 April 1972
Statement by Respondent, 17April 1972
2. Letter from Mr. Hersi to Mr. Fasla, 21 April 1969
3. Letter from Mr. Hersi to Mr. Fasla, 21 April 1969
4. Letter from Mr. Fasla to Mr. Hersi, 21 April 1969
S. Letter from Mr. Hersi to Mr. Fasla, 21 April 1969
6. Cable from Mr. Hersi to Mr. Fasla, 24 April 1969
7. Cable from Mr. Hersi to Mr. Fasla, 24 April 1969
8. Cable from Mr. Hersi to UNDEVPRO, Taiz, 24 April 1969
• Attachments not reproduced. [Note by the Registry.]
Written Statements (Secretary-General of the United Nations, Mr. Fasla)