Written Comments

WRITTEN COMMENTS

OBSERVATIONS ÉCRITES 1. COMMENTS ON BEHALF OF THE

SECRETARY-GENERAL OF THE UNITED NATIONS
SUBMITTED PURSUANT TO ARTICLE 66,

PARAGRAPH 4, OF THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE

INTRODUCTION

1. The present proceeding is designed to enable the Court to respond, in the
formof an advisory opinion, to the two specific questions addressed toit by the
Committee on ~oolications for Reviewof ~dministrative Tribunal Judnements
(the ~ommittee)'\;ithin the context of Article 1I of the Statute of thë~nited
Nations Administrative Tribunal (doc. No. 16).
2. The views of the Secretarv-General were submitted to the Court in his
Written Statement of 26 ~ebruaiy 1985and these views are maintained. How-
ever, as this case concerns a dispute between the Applicant and the Secretary-
General as his ~-~~~~~~~ ~r~~.l .t was consi~ered~ihat it mie-t be useful for
the Court to receive the comments of the Secretary-General on the principal
arguments put forward in the Written Statement submitted to the Court by the

Question 1: In its Judgemenl No. 333 of 8 June 1984 (AT/DEC/333),
did the United Notions Adminisfrolive Tribunal foi1to exercisejurisdiction
vested in it bv no1resuondinn to the ouestion whether a leno1imuediment
exisled 10théfurlher~emplo~menl in ;lie United Nations of the Àpplicont
ofter the expiry of his controct on 26 December 1983?

SUMMARY OFTHE PRINCIPAL CONTENTIONS OF THE APPLICANT

3. The Applicant argues that the Tribunal failed to exercise jurisdiction
vested in if by not responding Io the question whether a legal impediment existed
to his further employment with the United Nations because "lmplicit in [the
Tribunal's] judicial character is that itus1 pronounce independently on the
legal issues submitted IO it" (Applicant's Written Statement, para. 57). The
Applicant. moreover, urges that a reply to the question he posed to the Tribunal
"was a necessary prelirninary to deciding whether the terms and conditions of
his contract had been violated, and whether remedy was due" (ibid., para. 58).
4. The Applicant. relying on press statements made by United Nations
officiais and a letter dated 21 December 1983 written to him bv Mr. Louis-
Pascal Nègre, Assistant Secretary-General for Personnel Services, contends that

theTribunal failed to exercisethe jurisdiction vested in it by concluding wrongly
that the Secretary-General gave the Applicant "every reasonable consideration"
for a career appointment to which hewas entitled pursuant to General Assembly
resolution 37/126 (ibid., paras.58 to 62 and 72 to 75).
5. The Applicant subrnits that his service record was so good and so fitted
the needs of the service-evidenced bya departmental request that he be offered
another contract-that a proper exercise of discretion rnandated the grant of a
further appointment (ibid., paras. 60 and 77). Relying on In re Rosescu (doc.188 APPLICATION FOR REVIEW

No. 34). he areues that the Tribunal failed to exercise iurisdiction because it did
not conclude ihat the Secretary-General improperly deferred to the will of a
member State in not offering the Applicant a new appointment (Applicant's
Written Statement. oaras. 68-71)
6. The ~pplicani also suggestithat the Tribunal failcd to exerrise il5jurisdic-
tion because ilfailed 10conclude ihat resoluiion 37/126 gave him a legalexpec-
tancy of a further appointment because the resolution "had made obsolete the
Tribunal's previous jurisprudence on expectancy, except for periods of four

years or less under fixed-term contracts" (ibid., para. 72).

COMMENTS OF THE SECRETARY-GENERAL
With resoect to the areument that the Tribunal failed to exercise its
7.
jurisdiction by'not deciding the question of the existenceof a legai impediment
against the re-employment of the Applicant, it mus1 be repeated that, as the
~iibunal concluded. the Aoolicant was aiven "everv reasonable consideration"
before the ~ecreta4-~eneral decided aiainst giviig him a new appointment.
Under these circumstances, there was no need for the Tribunal, in logic or in
law. to determine whether there would have been a leeal imoediment to the fur-
the; employment of the Applicant had the ~ecretari-Genéral cbosen to offer
him a career appointment (Written Statement by the Secretary-General, paras.
61-79). The fa& that the Applicant and the Tribunal diffe; on whether the
Secretary-General, in arriving at the conclusion not to offer a further appoint-
ment, had exercised his discretion in a proper way, does not imply a failure by
the Tribunal ta exercise its jurisdiction.

8. The fact that the Applicant and the Tribunal drew different conclusions
from the press statements and Mr. Nègre's letter does not constitute a failure
by the~ribunal to cxcrciscils jurisdictiin. Indeed. the Tribunal clearly enerçised
ils jurisdiction in holding that the Applicant hitd reccivcd "cvcry rcaronable
consideration" for a career appointment (see Written Statement by Secretary-
General. paras. 74-79). Moreover. the Tribunal's conclusion that resolution
37/126, rather than giving Applicant a legal expectancy or right 10 such an
annointment. reauired that he be eiven "every reasonable consideration" for a
c&eer appointmént. This accord; with the plain meaning of the resolution,
which did not intend to give a legal expectancy or right to further employment
and conseauentlv make "obsolete" the Tribunal's orior iurisorudence on expec-
tancy and ihereby take away the discretion of the 'Secreiary-~eneral whether to

grant a staff member with five years service a permanent appointment.
9. The terms of resolution 37/126 clearlv indicate that staff members. unon
completion of fiveyears of continuing good serviceon fixed-term appointrnent,
have a rinht to be considered for a career appointment, which rinht did not exist
prior toihe adoption of the resolution. AS the Tribunal concluded that resolu-
tion 37/126 had been properly applied, it follows that the Applicant's reliance
on In re Rosesnr is misplaced (see further para. 16 below). A right to every
reasonable consideration for a career ao~ointment is not eauivalent to a leaal
expecrancy or righf to further employ&eit that would be v;olated by a fail;re
to nrant a new contract. The Apolicant's service record. which was not in
dispute,does not change the right'to be considered for acareer appointment
into a right to receive such an appointrnent.

Question 2: Did the United Nations Administrative Tribunal, in the
same Judgement No. 333. err on questions of law relating to provisions of
the Charter of the United Nations? COMMENTS OF THE SECRETARY-GENERAL 189

10. The Applicant argues that the Judgement of the Tribunal offended five
areas of the Charter which. in his Written Statement. were characterized as
follows: (0,the principle of merit (hlihc principlc of nîuirality(c/the prinii-
ple of equality: /d/ administririr,e principles; a/r/the career concept of the
international civil service. For reasons of convenience, in the paragraphs that
follow, the Applicant's headings, supplemented by a reference to the relevant
Charter articles,will be used.

A. The Principle of Merit (Article 101, Paragraph 3)

SUMMAR YF THE PR~NCIPNCONTENTION OFS THE APPLICANT

II. The Applicant argues that the Tribunal's Judgement violates the principle
of merit in Article 101,paragraph 3, of the Charter because it does not discuss
the excellent performance of the Applicant while in United Nations service
(Applicant's Written Statement, paras. 86 to 87 and 99).
12. The Applicant also argues that themajority Judgement. and more partic-
ularly the concurring statement, appears to raise, as a new "paramount" con-
sideration. the Aoolicant's refusal to obev orders from his Government reaard-
ing his ~nited ai ionemployment, andhis consequent election "to break his

ties with his country", which allegedly was considered as disabling him from
consideration for a careerappointment (ibid pa,a. 88). The Applicant reaches
this conclusion because themajority ~ud~ementcited a passageof a 1953Fifth
Committee report, which stated that "International officials should be true
reoresentatives of the culture andersonality of the country of which they were
naiionals. and ihat thosc who elec;cd to break their iieswiih ihai counir;could
no longer claim io fullil the conditions govcrning employmeni in the United
Natio~s~ ~Do~ ~No. 9.... 52.su.ro...ara. XII). The An..icant submits that the
Tribunal's adoption of this view-which was not argued by the parties-fails
to take account of the principle of merit in the Charter (Applicant's Written
Statement, paras. 89-99).

13. The fallacy in the argument that the Tribunal did not consider Appli-
cant's performance isthat it fails to recognize that the quality of the Applicant's
performance was never in question, so if is not surprising that his performance
was not discussed in the Judgement; it is, however, amply described in the
Tribunal's account of the facts (Tribunal's Judgement, pp. 46-49, supra; doc.
No 9)-,-
14. In so far as the Applicant's stated intention to change his nationality is
concerned, theTribunal's Judgement did not decide this case on the basis of the
1953Fifth Committee Report; indeed, the Tribunal specifically stated that the
matters considered by the Fifth Committee were not in issue since legislation
was beine introduced in the United States Connress to avoid the obstacles that

would otherwise be caused by Applicant's acquisition of permanent residence
status in the United States (Tribunal'sJudgement, p. 52,supra. para. XII; doc.
No. 9). In effect, the Applicant is arguing that the Secretary-General cannot
even consider a change of nationality or the way by which this change is
effected. The Secretary-General has indicated(doc. No. 21, pp. 11-12,para. 24)
that he had taken account of al1the circumstances: these obviouslv included the
Applicant's proposed change of nationality. ltis submitted ihat, as chief
administrative olficer of the United Nations, the Secretary-General has Io exer-190 APPLICATION FOR REVIEW

~ ~ ~ ~ ~~~ ~e~io~ and to take each decision individuallv and seoaratelv. in..ieht -
of al1 ihc relevant circumsiancea. in the interest of the Organizaiion. The
Tribunal's finding ihat he had done so iherefore does noi consiiiute an error of

law in respect octhe Charter.

B. The Principle of Neutralily (Article 100)

SUMMAR YF THE PRINCIPAL CONTENTION OS THE APPLICANT

15. 'TheApplicani argues that ihr Tribunal's Judgcmeni violates Article 100.
paragraph I, of the Charter in thai itdid iiot find impruper (a/ the Applicani's

~ ~ ~~ ~~ from the Hçadauarters buildine: -. . . the Soviet Government's exoeç-
talion that he would l&ve for Moscow and that the Government would
nominate another official to take his place; and (cl the view expressed by a
~ ~ ~ ~ ~ ~ ~~ ~~ ~ited Nations officials that the renewal of the Aool..ant's
contract of ernployment would require the consent of al1parties to the contract

of secondment (Aoolicant's Written Statement, para. 108).The Applicant also
~ ~ ~ ~~~ ~n re oie& (doc. No. 34) to suo..rtthe argume-t that Article 100.
paragraph 1, of the Charter precludes the Secretary-General from taking into
account the views of the Soviet Government (Aooiicant's Written Statement.

paras. 68-71). These arguments are also subrniiiedin the contexi of the Appli.
sant's section on "Administrative Principles of the Charter" (ibid .para. 130)
(see subsection (d)below)

COMMENT OF THE SECRETARY-GENERM

16. The Respondent submits that the Applicant's reliance on In re Rosescu

is misplaced. In that case. the Administrative Tribunal of the International
Labour Organisation found that the IAEA Director General had chanaed a
decision which he had îlready iakcn; it wai also found ihat the cliange if the
decision was noi in the interests of the Agency. but uas iakcn so as to comply
uith the wishes of a member Siaie (ILOAT Judgment No. 431. para. 7; doc.

No. 34). This is not the case here. The Tribunal concluded that the decision no1
io offer a new contrasi to ihe Applicant was properly taken in the interest\ of
the Organization after consideration of al1 the circumstances. including
representations to diverse effect from member States (doc. No. 9, pp. 54-55,

supro, paras. XVIII-XX). Indeed, if the results of the exercise of discretion are
considered in isolation. no matter what decision was taken, it would have had
to be in accord with the views of one of those memher States.
17. The Secretary-General's decision not to permit the Applicant, the centre
of a controversv between two member States. to enter the Headauarters

buildings, was an administrative decision taken in the light of al1 ihe cir-
cumstances of the case and in order to avoid potentially disruptive consequences
for the functionine of the Secretariat. It cannot seriouslv be contended that such
a decision violateciArticle 100, paragraph 1, of the charter. It was, moreover,
not thesubiect of a olea addressed Io the Tribunal, and the Ialter was, therefore,

no1called Üponto deal with it. (Applicant's Statement of Facts and Arguments
submitted to the Tribunal. Pleas; doc. No. 19.)
18. The Applicant also argues that the Tribunal erred in respect of the Article
hv no1 findine it imnroner for the Soviet Government to olan Io renlace the
ipplicant upin his ;et& to Moscow. This argument disrégardsthe'fact that

the Statute of the Tribunal does not, of course. permit if to adjudge the actions
or intentions of States. The Tribunal's ~udgement could theÏefoÏe only be an COMMENTS OF THE SECRETARY-OENERAL 191

adjudication of a dispute between the Applicant and the Secretary-General as
his employer.
19. The Applicant's criticisms of the views of certain senior officiais that
extension of hiscontract of employment required, since il was a secondment
contract, the consent of al1parties to il, overlooks that the Tribunal's Judge-
ment (doc. No. 9, pp. 54-55,supra, paras. XVIII-XX) accepted the Respon-
dent's submission to the Tribunal that the "decision now contested was taken
by the Secretary-General after consideration of al1 the circumstances in the
case" (Respondent's Answer to Tribunal. para. 24;oc. No. 21). Such a finding
of fact does not involve a question of law, let alone a question of law relating
ta provisions of theCharter. That finding, however, resolved the only issue for
adjudication between the parties, that is, whether the Applicant actually
received every reasonable consideration for a career appointment (see Written

Statement by Secretary-General, para. 105).

C. The Principle of Equality (Article 2, Paragraph 1, and Article 8)

SlJMMARY OF THE PRINCIPAL CONTENTION OfSTHE APPLICANT

20. The Ao~licant argues that Article 2. oaraeraoh 1.of theCharter orevents
a mcmber staic from seîking special treatment for its nationals and thai Article
8 prevents restrictions being placed on per5ons from participaring under sondi-
tions of eaualirv in any ornan of the United Nations and that the Tribunal crred
in law by "ot linding chat Ïhc Sccretary-Cenerai's decision to prohibit the Appli-
sant from entering thc Headquariers building violated thc Charter (Applicant's
Written tat te me paras. 112-120)

21. The Tribunal's Judgement, of course, had nothing to do with Article 2,
paragraph 1,of the Charter, but concerned the application of resolution 37/126
to the Aoolicant (see Written Statement bv Secretarv-General. oaras. 124-127).
Indeed, ihe ~ppli'cant acknowledges that ihe cener~ssembl;'itself has recog-
nized that some member States require their nationals to accept fixed-term
appointments by permitting, in its resolution 35/210,

"replacement by candidates of the same nationalit. ..in respect of posts
held by staff members on fixed-term contracts ... to ensure that the
reoresentation of memher States whose nationals serve orimarilv onxed-
tek contracts is not adversely affected" (Applicant's ~rittetat te ment,
para. 115).

22. Article 8 of the Charter solely prohibits gender-based discrimination and
cannot reasonably be extended to cover any of the matters here at issue, which
certainly had no relation10the Applicant's sex.

D. Administrative Principles of the Charter (Article 97 and Artie101,
Paragraph 1)

SUMMAR YF THE PRINCLPAC LONTENTION OS THE APPL~CAN~

23. The Applicant argues that the Tribunal violated Article 101. paragraph
1, of the Charter by concluding that the Secretary-General gave every reason-
ableconsideration to the Applicant for a career appointment pursuant to resolu- COMMENTS OF THE SECRETARY-GENERAL 193

ing Chapter XV in general-it cannot be maintained that the Tribunal's Judge-
ment constitutes an errorof law in reswt of Chaoter XV of the Charter. It is
emphasired that ihe principle of an independeni Civilservice is applied by the

Secretary-General irrespeciive of the type of appoiniment held by a siaff

27. Thc Sccretary-Gcncral considered the Applicant for a new appointment
but decided ihatiiwould not be in the interests of the Organization io offer him
a career appointment at that iirne. Thar decision did notviolaic ihc Applicant's
contract or terrns of ernployrneni and the Tribunal exerciscd ils jurisdiction and
did not commit an error of law concerning the Charter in so concluding.

(Signed)Cari-AuguSt FLEISCHHAUER,
The Legal Counsel
of the United Nations.

26 June 1985.COMMENTSOF THE APPLICANTMR. VLADIMIR YAKIMETZ
ONTHEWRITTEN STATEMENTS SUBMITTE TDOTHEINTER-

NATIONAL COURT OF JUSTICE

The Applicant's written statement to the Court, dated 22 February 1985.sets
out his viewson the issues of law and of orinciole in which Judeement No. 333
was defectiveas it applied to him. All ~ribunal;udgements, hoGever, affect not

only the individual staff member who is the Applicant, but also al1present and
future staff members in the United ~ations~svstem and other internationa~ ~ ~ ~ ~ ~
organizations influenced by the development of international institutional law.
The Applicant submitted, as Annex A ta his written statement, a statement of
the United Nations Staff Union issued on 20Avril 1984..uo..rtine his rea.~~ ~
for an advisory opinion fromthe Iniernational Court of Jusiice. ~ike thai daie
the Co-ordinating Commiiiee for Independeni Staff Unions and Associaiions
of ihe United Nations svstem. and the Fedcration of Inicrnational Civil Ser-
vants, concerned a1 the implications of Judgement No. 333 for al1the 55,000
staff members of the common system that they represent between them, have
requested an independent legal analysis of the issuesof law and principle posed
by the Judgement. This analysis, by Professor Alain Pellet. of the University
of Paris, is attached as Annex B to these Comments, which are submitted in
response to the invitation issued by the Court on 5 March 1985.

1. PRELIMINARY OBSERVATIONS OF THE
APPLICANT

1. Only two Statements were submitted in support of the Tribunal's decision
in Judgement No. 333; one by the Union of Soviet Socialist Republics and the
other by the Secretary-General of the United Nations (the Respondent). The
Iwo Statements differ fundamentally in their understanding of the Tribunal's
jurisdiction and in their interpretation of the disputed decision.
2. The USSR Statement, citing Article 2, paragraph 3, of the Tribunal
Statute, givens the Tribunal almost limitless latitude in defining the scope of its
own jurisdiction, which, it says, the Tribunal "must itself determine in every
speciiïc instance". The Respondent. on the other hand, maintains that under
Article 2. paragraph 1,jurisdiction is limited to "determining whether contracts
or terms of appointment have been observed" (para. 49).

3. The USSR Statement finds that the Judgement did answer the Applicant's
auestion "concerninn the existence of lenal imoediments Io his further emnlov-
meni in the United Nations". In coniras;ihe ~es~ondcni says ihat the~ribunal
did no; ansuer the quesiion. hcraurr ii "duc\ noi havr jurisdiciion io do son
(para. 57).
4. The USSR Statement says that the Tribunal set forth at least two (and
possibly three) speciiïc legal impediments to the Applicant's further United
Nations employment. ". . .The absence of (a)trilateral agreement (between the
Defendant, the USSR Government, and the Applicant) constitutes a legal
impediment to the extension of Applicant's fixed-term contract." The Appli-
cant's decision to "require (sic)permanent residence status" in the United States
constitutes a legal impediment to "further employment in the United Nations
on the basis of concluding with him a separate new contract". The Statement COMMENTS of MR. YAKIMETZ 195

also says that conversion to a permanent contract is "regulated by Rule 104.12
(b) of the Staff Rules", to which the "Applicant's attention was specifically
drawn". The Statement twice refers to this Rule in the context of legal
impediments.
The Respondent, on theother hand, says that the question of whether a legal
impediment existed was "not ar issue between the parties", the Respondent
having conceded that it was "within (his) authority and discretion to re-appoint

the Applicant after the expiry of his contract" (para. 58).
5. The USSR Statement maintains that the Tribunal su~~orted the Secretarv-
General's belief that a staff member whohad served on sécondment"could nbf
be appointed on a probation basis for the purpose of subsequently offering him
a coniract on the basis of a career appointmeni" (emphasis addedj. The ~ei~on-
dent, on the other hand, says that "the Tribunal did no1 find that there were
restrictions on the eligibility of the Applicant to be considered for a career
appointment" (para. 122).
6. The USSR Statement appears to see the decision of the Applicant to seek
permanent residence status as a "juridical" issue in which the Tribunal "fol-
lowed .. .its previous practice. in particular .. . its Judgement No. 325
(Fishmon)" (sic)-a Judgement in which the Tribunal upheld the Secretary-
General's refusal to waive the privileges and immunities of a career staff
member who wished to apply for permanent residence. The Respondent. on the

other hand. says that the Tribunal "made it clear that these matters (i.e., the
difficulties for the United Nations if a staff member on a G-IV visa takes steps
to change his nationality) were not in issue since private legislation was to be
introduced intothe United States Congress to avoid these problems . . and the
Respondent does not dispute this" (para. 114).
7. The USSR Statement savs that the Tribunal concluded "that in this
specific instance only the~ecreiary-General is empowered to decide what is the
meaninn of the phrase 'everv reasonable consideration'"; and that he "clearly
deierm&edU thai rcast~nable~consideraiiow nas noi in thi, instance requiredb;
resolution 37/1?6 becausc of the sccondment provision in the Appli~.ani'sfinal
coniract. The Respondent. on the other hand. savs that "the Tribunal held ihat
the Applicant wa; entitled to the benefit of thatiesolutionand concluded that
this consideration had, in fact, been given" (para. 74).

8. Thus, in point after point, the two statements wishing to uphold the
Tribunal Judgement negate each other. This mutually self-cancelling quality of
their arguments as to what the Tribunal could actually have decided can only
serve to corroborate the Applicant's contention that in fact the Tribunal failed
to exercise its jurisdiction.

II. THE FlRST OUESTIONAUDRESSEUTOTHE COURTBY THE COM-
MITTEE ON ÀPPLICATIONS FOR REVIEW OF ADMINISTRATIVE
TRIBUNAL JUDCEMENTS: DID THE TRIBUNAL FAIL TO EXERCISE

THE JURISDICTION VESTED IN IT?
9. The Respondent argues that the question of whether a legal impediment
existed to the furtheremployment of the Applicant in the United Nations after
the expiry of his contract on 26 December 1983 "was not in issue between the

parties". because the Respondent. in his Answer to the Tribunal, had conceded
that no such impediment existed' (para. 58).

a Nojurisdictionalinhibitiondeterred theTribunfrom examiningothermattersthat
werenoi at issuebetweentheparties.NeithertheApplicanf.nor the Respondentnor the196 APPL~CAT~ON FOR RLVIEW

IO. The ex posl facto concession by the Respondent that no legal impedi-

ment existed did not erase the contemporaneous statements by high officials
of the Respondent, and by the Assistant Secretary-General for Personnel Ser-
vices in the name of the Respondent, that he was "no1 in a position" to treat
the Applicant like any other staff member because of specific legal impedi-
ments: a supposed agreement by the United Nations "10 limit thc duration
of your United Nations service", and the requirement of "involvement of

al1the parties originally concerned". Nor did the exposr facto concession by
the Respondent revise the administrative decision, based on this recital of
supposed impediments, not to consider the Applicant for a career appoint-
ment. The Tribunal. either consciouslv or inadvertentlv. faile.,to draw anv
conclusions from the Respondent's later admission that the reasons givei
by Mr. Nègre were specious. If searched instead for other imvediments,
such as the proposed~change of residence status, to justify the contested

action.
II. The Respondent ar-.es. secondlv. that the auestion of whether or not a
legal impediment existed was an "abst;ictw one, in which the Tribunal "does
not have jurisdiction to answer or advise". The Tribunal does not have to
answer abstract questions just because asked; but must solve general legal ques-
tions if necessarv for the resolution of a concrete auestion. The su..osed
impediments arose, in the words of the concurring statement, from "the very

nature of the terms of secondment". The interpretation of contracts, terms of
appointment, and special conditions therein,is very much within the com-
petence and jurisdiction of the Tribunal, whose earlier definition of the concept
of secondment in Higgins and Levrik was relied on by both parties and al1
members of the Tribunal. It has never been a requirement of the Tribunal that
every plea contain a specific allegation of non-observance. lndeed the Tribu-
nal's own reformulation of the "legal issues" contains one that is not only

abstract but also quite unrelated to the substance of the case, i.e.. I (r) "The
consequences of the application of United Nations rules and regulations to the
United States law on resident status and citizenship".
12. The Resoo.dent'~ ~ ~rd areume-t-th~ ~~ ~ ~ ~ ~e auestion of whet~~ ~or not
a IegüIimpediment existed vas not relei,ant IO the ~rLbunal'cadjudication-uas
answerçd com~rehensivelyin the \\'ritt.cnStatement of the Go\ernment of Italy.

whish points out that theresolution of this question must logically preccde any
exarninûtion of the other two questions lkted. If further employment va> Iegally
barred. the Aoolicant could have no exoectancv of renewal. and anv considera-
tion, riasonabce or otherwise, for a carier appointment wo"ld be uiterly redun-
dant. On the other hand, if the Tribunal found that Respondent's disclaimer,

Covernmentof theUSSRhadsoughta furthersecondment.YettheJudgementand both
the WrittenStatementssupponing itdealexplicitlywith thisquestion.The Respondent
characterizesas

"the realissuebetweentheparties-and chatupon whichthe Tribunaladjudicated
. . whether or noi the Applicant'srights wereviolatedby the decisionof the
Respondent not to grant hima further appointmentafter 26 December1983,be il
a fixed-termappointmenion secondment .. ." (para.50).

Similarly ihc Appliianr'sdecisionIo scck prrmment rî,idencr siaiur uas no1 an Issue
beiwecnthepariiesand uai rn~red by nciihrr.YeiiheTribunalIirted II3%une ofthe ihree
legal is~uc~on which itmu\i pronoun;e judgcmcnt(para I 10).and itfurincd d con.
clusivepart in the concurring statement'rseasaning. COMMENTS OF MR. YAK~METZ 197

(however contradicted by the facts of the case) was to be accepted, then it was
ipsofacto led into the concomitant inquiry whether-absent any impediment-
the Respondent was not ohliged to give the reasonable consideration to a career
appointment prescribed by the General Assembly.
13. The Respondent postulated that Iwo pre-conditions must be met before
the Tribunal need make anv inouirv into rhe existence or otherwise of a leaal
impediment : a finding of expectancy. and a finding that "reasonable considera- -

tion" for a career appointment had been denied (para. 61). This assumes that
the application of General Assembly resolution 37/126, section IV, paragraph
5, was conditional on an expectancy of renewal. The Statement of the USSR
goes even further, interpreting the Judgement as finding an absence of expec-
tancy to be itself a legal impediment to conversion of a fixed-term to any other
kind of appointment. Expectancy, as the dissenting opinion points out, is in no
way a prerequisite Io a career appointment. To require proof of expectancy
would beto place an impossible burden on a fixed-term staff member. II would
also deny al1 meaning to resolution 37/126, and thwart the purpose of the
General Assembly.
14. The Aoo..cant has no disoute with the Tribunal's conclusion that he had
no expectancy of a renewal of his fixed-term appointment on secondment, a
status which he didnot seek. nor could the Secretarv-General bestow. Butthere

is no indication in the ~udgement itself that the Tribunal did in fact, as the
Respondent claims, "examine al1the circumstances of the case" and conclude
that "no circumstances existed to create a leaal expectancy of future em-
ployment" (para. 70). Rather, the Tribunal foÜnd such an examination to he
unnecessary, on the ground that secondment excluded the Applicant from its
previous jurisprudence on expectancy ':

"ln so far as he was on secondment from the USSR Government, none
of the actions he took could bring about legal expectancy of renewal of his
appointment. Ifhisfixed-lerm appointment werenot basedon secondment
he could, in the jurisprudence of the Tribunal, have in certain cir-
cumstances expectation of one kind or another for an extension, but such
a situation did not arise." (Para. XII.) (Emphasis added.)

In its previous jurisprudence a finding of expectancy arose not from the actions
of the Applicant. but from those of the Respondent or his agents, creating a
subjective expectation of further employment, hased on such factors as the
nature of the dulies. the intention of the deoartment in offerine the contract.
the written assurances of superior officers. In thepresent case, however, the cir-
cumstances examined by the Tribunal in its discussion of expectancy (paras. II
to XII) were not the actions of the Resoondent or his aeenc- ,but rather those
of the'~pplicant in relation to the USSR ~ovecnment.
15. The Applicant's exuectancy for further emuloyment did not rest, as in the
cases cited bv the ~ribunai. on "corresoondence and surroundine facts and cir-
cumstances": but rather on the much less ambiguous-indeid statutory-
provisions of General Assembly resolution 37/l26, paragraoh 5. section IV,
. -.
uhirh formed pari of hir icrmjr~f appointinent. Anyone uith five years con-
tiniious good scr\,icr ha\ an objective ehpeciancy of sonsideration. and unle\,

JudpeineniNo. la?. h'hal~o~hor))u.noicruiihoui furiherrummcniihai htr.Hhat-
ia;hary)a uar on rccondmrnifrim ihe IndianCo\ernmrni Th;< füiiiormednopart of
rhc Iribunal'reiamcnsimni df Ir. iiharrachary)a',e\,w;taric>ofrenrw~l.198 APPLlCATlON FOR REVlEW

le.all.barred. anvone with a cornoarable servicerecord. occuovine a oo., wh-ch .
required a long-term commitmeni. and enjoying thestrong recommendations of
his departmeni would unquestionably have bcen favourably considered. Thc
Respondent concedes that the Applicant was entitled to the benefit of this

resolution, but seeks to shield from the scrutiny of the Court the central legal
issue of the case: whether the Applicant was illegally denied his right to
reasonableconsideration for a career appointment. The Respondent claims that
the Tribunal made a finding of fact that this consideration was given.
16. No such finding of fact is detectable in the Judnement. On the issue of
consideration there isno maioritv view. The ~ ~ ~c~ ~ln~ " ~-~~~~~~~~~ ~-~~t
. .
reasonable consideration was noi required. The disseniing opinion found that
reasonable considcraiion had been denied. The Judcement found ihai "the
Respondent" had the sole authority to decide what constituted "reasonable con-
sideration" ... and that "he apparently decided ... that the Applicant could
not be given a probationary appointment". The only evidence supporting this
findine. accordinn to the Resoondent. was his own statement in his Answer Io
-. - ~ ~-~~
the Tribunal ihat the "decision noiv contested was takcn by the Sccretary-
General after consideraiion ofall the circumstances of the case" (para. 97of the
Secreiary-C;cncral's Siarement)-contrltd tiectcinnigmporaneous assertion
by Xlr. Negre ihat the Secreiary-Cieneral was"no! in î po9iiion" ii,apree to his
request for reasoitable con~idcratioii. The Tribunal Judgement thus gtves the
Secretary-Ceneral "unfetiered and self.judging dissretion". as the Statement of

the United States point out. to determine the sriieria for reasonable considera-
lion, and accepts his word that it was given, without asking what those criteria
were. The Respondent's Statement implies that something is a "fact" simply
because he said it was so. The acceptance of such a standard would eliminate
the need for anv indeoendent leeal authoritv at all. Previous Tribunals have

demanded moré. ~is~retionar~ power "cannot be exercised for reasons not
clearly specified" (ILOATJudgment No. 13,InreMclnfire); ". . .The exercise
of a power which is in princige discretionary requires the Tribunal to test the
validity of the explanations . . ." (ILOAT Judgment No. 27. In re Mauch);
"While it is not for the Tribunal to substitute its judgement for that of the
Secretary-General with respect IO the adequacy of the grounds for termination

stated, it is for the Tribunal to ascertain that an affirmative finding of cause
which constitutes reasonable grounds for termination has been made, and that
due orocess has been accorded in arrivine at such -n affirmative findine" -
(UNAT Judgement No. 4, Howroni). Under the Respondent's interpretation,
the Tribunal demanded no clear soecification of reasons, did not ascertain the

reasonableness of the grounds and made no attempt to test the validity of the
explanations given to it, or even Io compare them with the explanations
previously given to the Applicant.
17. "The mere ~ac~ that the Tribunal has ournor~ ~ F ~ ~-~~ise its oow~r~ ~ ~ ~ ~
u,ith respect to any pariicular marerial issue willnot be enough; if musr in fasi
have amlied them to the determinaiion of the issue" (I.C.J. Re~orrs 1973. ai

p. 190j..~he Respondeni's Statement coiicedes thai no inquir) Wasmade as IO
the existence or oiherwise of a legal impedimcnt to further employment. But
even as to the two "~reconditions" for such an inauiry. set by the Resoondent
himself, the Statement fails to show that the ~ribunal "appiied its mind" or
examined the "substance of the matter and not merely the form". In a material
issue inthe case, therefore, IheTribunal abdicated itspowers, and failed to exer-

cise the jurisdiction vested in it. COMMENTS OF MR. YAKIMETZ 199

111.THK StXOPiD QUESTION AI>I>KëSSED TO 'THE COUU'S BY THK
COMMIll'EE OS APPLICATIOSS FOR RKVIk:WOF ADMINISl'RATI\'E
TRIBUNAI. JCUGEMKN1.S: DID THE.SHIBUNA1. EHKON OUESTIOSS
OI' LAIV REI.ATINC TO PROVISIOSS OF 'I'tIECHAHTER?

1. Article 101, Paragraph 1, of the United Nations Charter

18. General Assembly resolution 37/126, section IV, paragraph 5, confers a
right on al1fixed-termstaff members who have rendered five years of continu-
ing good service. The same resolution places an obligation upon the Secretary-
General which, under Article IOl.I, he is bound to fulfil. Staff Rule 104.12(b)
includes "persons temporarily seconded by national governments or institu-
tions" in its vrovisions on fixed-term avnointrnents. The Avvlicant did not
assert a right io a career appointment, rGognizing that the piGer of appoint-
ment remains subject to the discretion of the Secretary-General. He did assert
a rieht to "everv reasonable consideration". such consideration havina been
expicitly deniedhim in the name of the secretary-General on 21 ~ecember
1983.The Respondent asserts that theTribunalmade a finding of fact that con-

sideration had~beengiven, and that a finding of fact is not reviewable as a ques-
tion of law. The Applicant submits that no such finding of fact was made (and
the USSK Statement implicitly supports this submission). Even if it were,
whether or not such consideration was "reasonable" isa legaldetermination and
therefore reviewable.
19. The Tribunal did not make a finding of fact that consideration was given:
it madean "inference" (oara. XVI). lndeed it exnr.ss~-~its "dissatisfaction with
the failuieof the ~espondent" to make a record on which a finding of fact could
be made (para. XX). but draws no consequence from this. Nor did it make a
finding of fact that such consideration was "reasonable". Ir said that the
Respondent had "sole authority" to decide what was reasonable, and he
"anvarenth decided" that it was (vara. XVIII). The Tribunal made no attemvt
10 apply its owri or an) other legal srandord of reûsonablrnecs, nor tore! any

limits on the Secretary-Ccneral's discretion. limits uhicithad itsclf articulated
in the nast ie.a.. Judeement No. 54. Mauch) and which the Court recoenized
in ~h/u as 3 l%ndamental part of the ~ribiinal's role (I.C.J. Reporls 1973. at
p. 205). The Tribunal' Judgemcnt. ifalloued to ciand, permiic the Kespondcnt
10 ast as ihoueh General Assemblv resolution 37/126. section IV...idr-.raoh 5.
had never bgn passed. lndeed iiendows him with &en greater discretionary
vowers than he had before the resolution, when the normal mechanisms and
Procedures for appointment applied. Under this Judgement, the Respandent
has "sole authority" to set standards: he need keep no records, prepare no com-
parative evaluation, give no reasons or give spurious ones, and may carve out
exceptions. Until he has "accepted the recommendation made by the General
Assembly" (para. XVLI1)-a condition not previously imposed-he need setup
no machinery to imvlement if '. The Avvlicant submits that both Written

Statements supporting the Judgement interpret il so as to set no limits on the
Secretary-General's discretionary powers. raising a question of law relating to
Article 101, paragraph 1. of the Charter.

'Ta thedate ofthis writing.noadministrativeinstructihas beenissuedandno pro-
cedure set up to implementGeneralAssemblyresalution37/126,section IV, paragraph
5. pendingthe Court'sdetermination-ofthis case.200 APPLICATION FOR REVIEW

2. Article 100, Paragraph 1, of the United Nations Charter

20. Contrarv to the Resoondent's assertion. the Aoolic..t at no time "alleeed -
that the Respondent in ihis case was mercly carrying out the instructions of a
Government .. ." (para. Y9 of the Se;retary-General's Statement). The

Tribunal acknowledges ihis (para. XIX). Nor did the Applicant at any lime su&
gest that the "Secretary-Gcncral isprecludcd from taking into conrideration for-
mal represrnrations made to him in his official capaciiy .y .ember States"
(para. 100).The Applicant, no1heing privy to the Secretary-General's appoint-
ments, has no means whatever of knowing the content of any representations
made Io the Secretary-General. The paragraphs in the Application Io the Com-
mittee listed by the Respondent refer to public statements by high officials of
the Secretary-General indicating that he believedthat further employment of the

Applicant was impossible without the consent of the USSR Government, a
helief whichthe esp ponden himself hassubsequentlyadmitted to be erroneous.
It was that helief, and the Tribunal's failure to fault it, that the Applicant~~
alleged to he a dereliction from Article 100.1.
21. The passage from In re Rosescu quoted hy the Respondent in paragraph
103 directly supports the Applicant's contention in paragraphs 20-22 of his
Application to the Committee. It says:

"If a director-general intends to appoint to the Staff someone who is a
government officialin a memher State he willnormally consult the member

State, who may wish to keep the official in its service. Similarly if such
government ofjiial's appointment is to he extended, it is reasonahle that
the organization should again consult the member State, which may have
good reason to re-employ him." (Emphasis added.)

Since the Applicant was not a government official al the time of the contested
decision, having resigned from any offices in the USSR Government, and since
he did not seek an extension of an appointment on secondment, the Applicant
argued that Article 100.1prohibited the search for consent of anv aovernment,
and relieved the ~ecretari-~eneral of the need to consult any member Shte.

22. Given the public statements made by his Spokesman and by other high
officials as to the necessity of seeking instructions from a memher State, the
hurden was uoon the Secretarv-General. as t,~-Wr~ ~en Stat~ ~-~~~~~the United ~ -~ ~ ~
States arguesip. 176)to show.that he reached his conclusion on gr'oundswholly
indeoendent of the wishesof a member State or States. "When Resoondent does
not. of his own intiriati\e. produce such information and eridence . . .the
Tribunal is leit with no option but to proseçd io a conclusion in the absense of
such information and evidence" (UNAT Judaement No. 15. Rohinsonl. "If an

unexplained decision is also appa~entlyinexpicable, silencehl providéa foun-
dation for an inference that there must have been at work in the decision-
makina some element. such as ~reiudice or a conclusion falselv drawn. which
uould;equire the Tribunal to inter-fereuith the discretion" (ILOAT ~ud~ment
No. 361. ln reSchofiel11l:seealso UNAT Judgement Ni). IR,Cronyord; ILOAT
Judaments No. 13. Mclnrire. and Ni).415. Hulli*.eln. An indeoendent iustifica.
tion, the Applicant suhmits.is demanded by the much wider injunction of Arti-
cle 100.1, that international officials "refrain from any action which might

reflect on their position as international officials responsible only to the
Organization".
23. The Applicant did, however, suggest that the decision ro ban him from
entering the Headquarters building may have been taken in deference to the
wishes of a member State. Once again, not heing privy to the Secretary-204 APPLICATION FOR REMW

Organization, not of the consent or the proposal of member States. Article 2.1
means that this principle must be applied equally to nationals of al1countries,
and Article 100.2 protects the autonomy of the Secretary-General in the
management of his staff, subject only to the regulations of the General
Assemblv and the orovisions of the Charter. The Judeement and concurrine
statemen.1either evade the material issues posed by this Case,or introduce priG
ciplesalien to the Charter. The Respondent's Statement condones these evasions
and fails to assert the autonomy of the international civil service or to accept

responsibility for defending its neutrality.

Conclusion

35. In 1949the Court laid down the principle that the relationship between
the Organization and its officials takes precedence over that deriving from
nationality. from which fiows an obligation ta assure administrative and
iudicial orotection Io al1 international officials reeardless of their State of
&rigin, whether pbwerful or weak. In 1954 and 1<56 the Court defined the
jurisdictional nature of the international administrative tribunals,and set out
some of the resoonsibilities of the oreanizations towards their staff. resoon-

sibilities arising .out of the contracO; employment. In 1973 and in'l98i the
Court recognized the fundamental role of the tribunals in safeguardina officials
against wrongful actions of the administration, or against éncroaciment on
their rights by the General Assembly.
36. The Applicant respectfully submits that in Judgement No. 333, the
United NationsAdministrativeTribunal failed ta exercisethe jurisdiction vested
in if. and committed errors of law relating to provisions of the Charter, such
as to reverse the concept of official service within the United Nations pro-
-ressivelv develoved bv the Court in its ooinions suoro. Wherefore the Ano. .
cant respectfully requests the Court to render an advisory opinion sa as tocon-
form Judgement No. 333to its own ~reviouslystated princivles. and to the letter
and spirit of the Charter

(Signed),Diana BOERNSTEIN,
Counsel for Vladimir Yakimetz.

26 June 1985. COMMENTS OF MR. YAKIMETZ

Annex B

LECAL OPINION

on the Validiiy of Judgement No. 333 of the Administrative Tribunal of the
UnitedNations withRespect to the Charter of the United Nations arid the Fun-
damental ~rfnci~les of ~nternatio"al Civil Service Law'

1, the undersigned Alain Pellet, Professor in the University of North Paris
and the Paris Institute of Political Studies, having been consulted by the Federa-
tion of International Civil Servants' Associations and the Co-ordinating Com-
mittee for Independent Staff Unions and Associations of the United Nations
System (New York) on the validity of Judgement No. 333 (Yakimetz v. the
Secretary-General of the United Nations), rendered on 8 lune 1984 by the

Administrative Tribunal of the United Nations, have expressed the following
opinion:

~. -v a deci~~o~. ,~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~n 23~Nov~mber 1983confirmed on
21 December 1983,Mr. Vladimir Victorovich Yakimetz, a staff member of the
United Nations. was informed of the non-renewal of his fixed-term apu. .t-
ment which +as due to expire on 26 December 1983.
2. With the agreement of the Secretary-General, Mr. Yakimetz filed directly
with the Administrative Tribunal of the United Nations, on 6 January 1984,an

application in which he requested the Tribunal:
"A. To consider his case at the Spring, 1984, session of the Tribunal.

B. To order the rescission of the administrative decision, dated 23
November 1983, not to consider an extension to the Appiicant's United
Nations service.
C. To adjudge and declare that no legal impediment existed to his fur-
ther United Nations employment after the expiry of his contract on

26 December 1983.
D. To adjudge and declare that he had an expectancy of further
employment.
E. To adjudge and declare that he was illegally denied his right to
reasonable consideration for a career appointment.
F. To order that his name be forwarded to an aoorooriate body to give
.. . . -
him such reasonable consideration for a career appointment.
G. To order payment to the Applicant of salary lost during the period
of unemployment between the expiry of his contract and the reconstitution
of his career.
H. To order reimbursement of expenses, if any, reasonably incurred by

the Applicant in prosecuting this Appeal, such expenses to be determined
by the Tribunal before the close of proceedings."

On 8 lune 1984, the Tribunal rejected the Application of Mr. Yakimetz by
its ludeement No. 333. This Judaement was rendered by two votes to one; Mr.
~rnoli~ean, the vice-~resident, attached the text ofhis dissenting opinion,
and Mr. Endre Ustor, the President, made a statement.
2. In application of Article 11 of the Statute of the Tribunal, Mr.

'A plan of this legaopinionisaitachedhereto.206 APPLICATION FOR REVIEW

Yakimetz-hereinafter referred to as "the AnnlicantH-claiming that the
Administrative Tribunal had exceededits jurisdiciion or competence;that it had
not exercised jurisdiction vested in il, that it had committed an error of law
r~l~tine tonrovisions of the Charter of the United Nations and that. in the nro-
-.
ceedings, it had committed an essential error which had occasioncd a failure of
iustice. requesed the Commiitee on Applications for Revieu,of Adminirtrati\e
Tribunal ~udeements lhereinafter referred to as "the Committee") Io reauest
the International Court of Justice for an advisory opinion on the question.
By 16 votes to 9. the Committee decided. on 23 August 1984, that:

"there was a substantial basis. within the meanine of Article II of the
Statute of the Administrative Tribunal, for the apilication for review of
Administrative Tribunal Judgement No. 333 deliveredat Geneva on 8June

Accordingly, the Committee on Applications for Review of
Administrative Tribunal Judgements requests an advisory opinion of the
International Court of Justice on the following questions:

(1) In its Judgement No. 333 of 8 June 1984(AT/DEC/333). did the
United Nations Administrative Tribunal fail to exercisejurisdiction vested
in it by not responding to the question whether a legal impediment existed
to the further employment in the United Nations of the Applicant after the
expiry of his contract on 26 December 1983?
(2) Did the United Nations Administrative Tribunal, in the same Judge-
ment No. 333, err on questions of law relating to provisions of the Charter

of the United Nations?"
3. For their nart. the oreanizations renresentine. the United Nations staff
and, IIpart~cu~dr.the CO-or>inatiitg~oni;iiirtcc fo; Iridependerit Staff Union3

and Associations of the United Nation5 Syïtem (Nen York) and the Federation
of International CivilServants' ~ssociations IFICSA) exoressed their erave con-
cern at the decision of the Tribunal and q"estion ihe'validity of fudgement
No. 333.
By a letter of 19December 1984, the President of FlCSA requested that the
following questionsshould be examined in the context of the current reviewpro-
cedure :

"(a)In this case, has the Secretary-General correctly applied the rules in
force relating to the international civil service?
(b) Was the Secretary-General obliged to follow the guidelines given by
the General Assembly in the matter and. if so, has he duly fulfilled this
obligation?
(clHas the Secretary-General acted in conformity with the relevant pro-
visions of the Charter and, in particular, with Article 2, paragraph 1. and
Articles 8, 100 and 101, and with the fundamental principle of the

independence of the international civil service?
(d) And, more generally, assuming that the Secretary-General has acted
in conformity with the law in force, has the Tribunal duly exercised
jurisdiction vested in it?" (This letter is annexed hereto.)

Concurrently. the President of the Co-ordinating Committce for Independent
Staff Ilnion, and Associations of the United Nations Sy\tem (New York) stated.
in a letter dated 21 December 1984. that he was eravelv concerned about the
repercussions of the case on the independence, iniegrit; and neutrality of the
international civilservice and on the very concept of a career civilservice, prin- COMMENTS OF MU. YAKIMETZ 207

ciples essential to the effective functioning of the United Nations and Io ils sur-
vival as an international organization (this letter is annexed hereto.)
With the concurrence of the two above-mentioned organizations representing
~ ~ -~~ff. ~~~a~~.ereed that this lee-l o~.nion would be ore. .ed once al1the
arguments of the parties were known and the observations, if any, had been
formulated pursuant Io Article 66 of the Statute of the International Court of
Justice.
This legal opinion is therefore not intended Io replace the arguments submit-
ted to the Court on behalf of Mr. Yakimetz. However, as it is drafted for the

purpose of the current review proceedings and as it comes after the exchange
by the parties of their first submissions, it will focus mainly on commenting, at
the levil of orinciples. on the contentions presented durina the review pro-
ceedings by ihe ~pplicant and the ~es~ondent in the ~dmiGstrative ~ribunal
(hereinafter referred to as "the Applicant" and "the Respondent") due regard
being paid to the comments set forth in the written statements of the Govern-
ments of Canada. the United States, ltaly and the Soviet Union.
4. The first step should be to attempt Io determine the exact scope of the Iwo
questions addressed Io the Court.
To a certain extent they may actually be thought of as irreconcilable or, at
least, alternatives.
Thus, as the Secretary-General rightly points out:

"The real issue between the parties (. ..) was whether the Applicant's
rights were violated hy the decision of the Respondent no1 Io grant him a
further appointment." (Written Statement, para. 50.)

The Administrative Tribunal has responded to this question in the negative; the
Anolicant. .u~o..ted bv the United States and. less stron~lv. bv Can.da and
1t;iy, criticizes this rep&; the Respondent and the USSR Government support
it. But itisuite remarkahle to notethat the respectivepositions held by thesup-
porters of iach of the two arguments advanied differ radically onone fun-
damental point:

- according to the Applicant (at least in hisApplication to the Committee on
Applications-for his position in the Written Statement submitted to the
Court is less precise), the Administrative Tribunal has failed to exercise
jurisdiction vested in it by no1 replying to the question which was, in his
view. the oreliminarv auestion. as to whether anv leaal imoediment existed
to hi'sfur;her emplo;ment (~iplication Io the ~omkittee;paras. 6 Io 16);
- the United States Government apparently supports this analysis (Written
Statement. on. 181. et sea.. suDra) but nevertheless considers that the
Tribunal ha;'implicitly adkiiled'that the Secretary-General was bound in
this connection by the opposition of the Soviet authorities (ibid., pp. 172
and 176. .sum.):..he ltalian Government's analvsis of the Jud~ement is
based on the same ambiguity (Written ~tatement;pp. 160, et seq-, supra);
- the Secretary-General, for his part, considers that the Tribunal rightly
refrainedjrom laking O decisio; on the matter as the question was not al

issue between the parties and not relevant to ils adjudication (Written State-
ment. paras. 58 et seq.);
- whereas the Soviet Government takes the view that the Tribunal riahtlv
based ilseifon the statusof Mr. Yakimetz as a seconded official in ordër to
deny him any right Io further emp~oym~nt of any type (Written Statement,
pp.~155-156.su&).
Actually even a superficial reading of the Judgement confirms this las1208 APPLICATION FOR REVIEW

analysis (see para. 7 below); and it is precisely because the Tribunal has held
the secondment of Mr. Yakimetz IOconstitute a legal imoediment to his further
employment that it erred on questions of law relating to provisions of the
Charter of the United Nations.
5. The fact that the Administrative Tribunal held the secondrnent of Mr.
Yakimetz to conytitute a legal irnpedimeni io hi5further ernployment dozs not.
houever. mean ihai the reply IO bc given io the firsi question addreiyed to the
Court must necessarily be negative.

For one thing, the Court has stated that
"the test of whether there has been a failure to exercise iurisdiction with
respect to a certainsubmission cannot be the purely formaione of verifying
if a particualr plea is mentioned eo nomine in the substantive part of a

.udn-ment : thetest must be the real one of whether theTribunal addressed
its mind to the matters on which a plea was based ..." (Application for
a Review of Judgement No. 158, I.C.J. Reporls 1973, p. 193).
In other words. iiis for the Court IO deierrnine whether the Tribunal, in order

IO conclude that a legal impediment to furiher employmeni ewted. examined
with sufficient care al1the circumstances of the case and, in particular, the situa-
tion of the Applicant vis-à-vis the Soviet Union (see para. 8 below).
On theother hand it must be noted that the Committeeworded this first ques-
tion in an untvoical wav bv itself indicatine what. in its view. constituted non-
exercise by th;'~ribunal if jurisdiction v&ted in'it. The quéstion arises as to
whether, in so doing, itdoes not exceedits terms of referenceby unduly limiting
the nowers which theCourt derives from Article II. oaraaraoh 1. of the Statute
of he Tribunal, a provision which has "primacy o;er t8e &tuai terms of the
request" (Application for Review of Judgemenl No. 273 of the United Nalions
Administrative Tribunal, I.C.J. Reports 1982,p. 349)and appears IO allow the
Committee. which, even less than the Court, cannot be considered a court of
appeal, only a choice out of four questions-which it can raise alternatively or
jointly. If, asis reasonable, this interpretation-which seems to conform to the
"customary" practice of the Committee (cf., ibid., p. 345, and the Report of

the Committee in the present case, A/AC.86/30, pp. 29, et seq., supra, paras.
8 et seq.)-is upheld by the Court, the Court will be led to address itself to the
much more general question as to whether the Tribunal has not also omitted to
exercisejurisdiction vested init for reasons other than that adduced by the Com-
mittee.
This question, thus formulated, is particularly interesting because, on several
occasions. the Administrative Tribunal. breakine with its tradition of in-denth
verification of the facts adduced by the'parties. has limiied itself. in its ludge-
ment No. 333. to taking for granted the facts as presented by the Respondent.
In oarticular. the ~ribunal s&ms to have renlied verv .a.tiallv. or notat all. to
th; following questions:

(i) Was Mr. Yakimetz, at the time of his appointment, really a Soviet civil
servant ?
(ii) If it is admitted that he was then on secondment, could he have been con-
sidered stillon secondment at the time when the problem of further employment
arose?
(iii) lndependently of a possible right to career employment, was he entitled
to claim a fixed-term aooointment?
(iv) Does not the posk;on taken by the Respondent amount to placing undue

impediments in the way of certain of the Applicant's human rights? COMMENTS OF MR. YAKIMETZ 209

(v)According to what procedures was the Secretary-General Io give "every
reasonable consideration" to the possibility of granting Mr. Yakimetz a perma-
nent appointment?, etc.
Al1these ouestions. which wereraised in the oroceedines bv the Aoolicant and
who\e solu1;on was "ecersary for an e;hausii;~e ehaminalioo of lhé'case.uere
not addressed by the Trihunal whirh did nul therefore fullyexercise~urisdiction
vested in it
6. Accordingly, it does not seem expedient to deal successively with the two

questions oresented to the Court. As the Italian Government observes, they are
largely interdependent (Written Statement, pp. 158,et seq., supro): on the one
hand, they are in part mutually exclusive-at least if the first is considered in
the same way as it is in the Written Statements submitted to the Court during
the first staee of the oroceedines fsee oara. 4 above): on the other hand. it is
largely because the ~hhunal hacnot fily exercised j&isdiction vested in it that
the Tribunal has committed, or endorsed, errors of law relating to the provi-
sions of the Charter and, in particular, that it has failed to uphold those~ofits
provisions which guarantee the independence of the international civilservice(1)
and those which assign a higher policy-making authority Io the General
Assembly in the matter (II).

1. THE TRIBUNAL KAS FAILED TO UPHOLD THE PROVISIONS OF THE CHARTER
GUARANTEEINO THE INDEPENDENCE OF THE INTERNATIONAL CIVIL SERVICE

7. An essential oart of the discussions between the oarties and the Govern-
ments which have'submitted written statements Io th; International Court of
Justice relates to the implications to be drawn fromthe situation of secondment
from the Soviet civil service in which Mr. Yakimetz ann..entlv found himself
at the time of the events.
This emphasis on secondment is justified by the key role that this element
plays in the reasoning followed by the Administrative Tribunal:

(i) In the first place, the Tribunal states that
"ln his letter of 21 December 1983 addressed to the Aonlicant. the

Respondent concluded that, since the involvement of al1part& conc&ned
was necessary for the renewal of the Aoolicant's appointment, such
renewal was impossible in the circumstances" (~ud~ement, para. IV);
and theTribunal holds that this position accords with itsprevious jurisprudence
(ibid.);
(ii) passing onto the matter of legitimate expectancy of renewal, invoked by

the Applicant, the Tribunal concludes:
"ln so for os he woson secondmenl from the USSR Government, none
of the actions he took could bring about any legal expectancy of renewal
of his aooointment. If his fixed-lerm auuointmenl were no1 bosed on
secondmenl, he could,;n thejurispruden&of the Tribunal, have in certain

circumstances expectation of one kind or another for an extension, but
such a situation did not arise" (para. XII);
(iii) and finally,

"ln viewof the foreaoing. theTribunal concludes that during the oeriod
of his service withthe Ünited Nations the Applicant was under secondment
which ... could no1be modified except with the consent of al1three par-
ties." (Para. XIII.)210 APPLICATION FOR REVLEW

It isthus quiteclear that the AdministrativeTribunal has held the secondment
of Mr. Yakimetz to be an imvediment Io the renewal of his a~~ointment and
even Io his cherishing any legiiimate expectancy whatsoever theréto(he did not
relinquish this conviction until, at the end of the Judgement. it envisaged the
implications of General Assembly resolution 37/126, a problem which will be
examined later-see paras. 24 et seq.).
8. Quite obviously, the entire case built up by the Tribunal derives from the
conviction of its members that the Applicant was in effect seconded from the
Soviet civil service. This conviction is based on two elements: the reference

to secondment in the last letter of appointment of Mr. Yakimetz, dated
8 December 1982, and the fact that, on 10February 1983, he addressed to the
Permanent Representative of the USSR to the United Nations and to the
Secretary-General letters announcing his resignation from the Soviet civil
service.
Conversely, there are several arguments to the contrary which are developed
at length by the Applicant (cf. his Written Statement, pp. 126, et seq., supra)
and mav be summarized thus: in the Personal Historv forms. addressed to the
United Nations in respect of his successive appointments, MI. Yakimetz has
always stated that he was not a "Dermanent civil servant" in his countrv: his
previous letters of appointment made no mention of his secondment and, if
secondment did not exist in 1977. it could not have existed in 1982because, in

the interval, he had continuously been an international civil servant. which
excluded the possibility of his acquiring the status of a Soviet civil servant;
finally, the mention of "secondment" in his last contract apparently results
from a routine assum~tion of oersonnel services whichare accustomed to con-
sidering al1staff members of soviet nationality to be seconded from the USSR
civil service. Certainly the Court is in no way bound by the findings of the
AdministrativeTribunal. and it can examine "in full libertv the facts of the case
or check the .l.ribuna13sapprecialion of the facts" (~pplr<.arionJor Review of
Judgrrnenr No. 158 ~JJrhe Unrred Narions Adrnrnrsrrarr~e Trrbunal. I.C.J.
Hepor!, 1973. p. 207). It may then rind ihai the Applicani uas no1 seconded
[rom thc Soiici ci\iI service and niay hold that. in taking the oppositç viewand
hardly eten examining the arguments put foruard by Mr. i'akinietz in this con-

nection. the Tribunal omitted to exeriise jurisdiction vested in it.
This legal opinion will. however, continue with the issue of secondment-not
as being the most likely hypothesis but because the implications which the
Tribunal has drawn from the issue of secondment, whose existence it has
postulated, raise the most serious problems of principle.
Itwould seem that, by sanctioning the existence of a separate and new
category of appointment-fixed-term appointment "on secondment"-the
Administrative Tribunal has seriously jeopardized the principle whereby the
Secretary-General, on the one hand, and the staff, on the other hand, perform
functions of an exclusivelv international nature.
It goes without saying that these considerations are particularly relevant as the
Applicant was not in fact seconded from the Soviet civil service.

1. The Tribunal Has Sanctioned the Existence of a New Category
of Appointment

9. In the appendix to his Written Statement, the Secretary-General specifies
three cateaories ofavvointment: career aooointment. fixed-term aooointment.
and fixed-term appoktment on secondmeni. This triple breakdown'is reiterated
by the Soviet Government, whereas the United States refers to the notion of a COMMENT OF MR. YAKIMETZ 211

"contract of secondment", and the ltalian Government speaks of "the contract
of a seconded employee".
This presentation concords with Judgement No. 333 which, on two occasions,
asserts that the Aoo..cant's aoo.irtment was "on secondment" ioaras. II and
XII); it is, nevertheless, not justified on that account.
IO. There is in fact nothing in the Staff Regulations or Rules of the United
Nations -o~-uooo.. the idea o~ ~a~ooin.m.n& on seco~d~ent" which would
constiiuie additions IO ihc ruo catcg<irie\ <ifappoinrmeiii. naniely, temporary

and pcrmaneni, pro\,idrd for in Staff Kegulation 4.5 and Staff Rulm 104.12and
104.13.
Quite on the contrary, as stipulated in Staff Rule 104.12:
"The fixed-term appointment .. . may be granted for a period not

exceeding five years to persons recruited for service of prescribed duration,
including persons lemporarily seconded by nolionol governmenls or
institutions for service with the United Nations."
Far from constitutinga particular type of appointment, secondment is therefore

simply a circumstance, among others, justifying a fixed-term appointment.
Not only is the opposite position held by the Tribunal unsupported by any of
the texts which. bv virtue of Article 2 of its Statute. the Tribunal is bound to
uphold; it is also tantamount to admitting that a ~nited Nations staff member
may find himself, vis-à-vis the Organization, in a special legal situation that
does not correspond to any statutory category and without any action on the
part of United Nations bodies. Such a judicial interpretation is compatible
neither with Article 97 nor with Article 101 of the Charter. It is. moreover,

significant that the Secretary-General has so Far been firmly opposed to the
establishment of a new type of appointment for seconded staff members (see,
for example, his comments on two recent reports of the Joint Inspection Unit
in docu~en~ ~ ~36/378. oara.r 12 and 13 and A/36/432/Add.2. . .ara. 13).
I1. As emphasizcd hy ihc Re,p<indent, "the ierm 'recondnieni' is noi deiined
in the Staff Kulss" (Wriircn Sintement. appendi~. pars. 6). any more thsn IIi\
in any statutory or regulatory instrument of the Ùnited Nations.

The sole exception in this connection seems to be the one in Article I (d) of
the Inter-Organization Agreement concerning Transfer. Secondment or Loan of
Staff among the Organizations applying the United Nations Common System
of Salaries and Allowances, concluded in 1972.This provision reads as follows:
"Secondmenr is the movement of a staff member from one organization

to another for a fixed period. normally not exceeding two years. during
which he will normallv be oaid and, exceot as otherwise ~rovided hereafter.
be subject to the stac reiulations and rÜles of the receiving organization.
but will retain his rights of employment in the releasing organization."

This definition can be transposed, though not without precautions to the
hypothesis of the secondment of a staff memher who is a national of a State
member of an international organization,
Furthcrmore. in ils ~ud~emint No. Y2 (H1ggins v. ihe SG of Ih!CO/. the
Administraiive Tribunal gare a geiieral definition of recondmçnt that is valid
in al1 hypotheses:

"the term 'secondment' is well-known in administrative law. It implies that
the staff member is oosted away from his establishment of origin but has
the righr to revert io employmcnt in that e*tablishmrni ai the-end of the
period of employmeni and reinins hir right to promoiion and 10 retirement212 APPLICATION FOR REVlEW

This aooroach-auite different from that taken bv the Secretary-General
(Written ~tatement,'appendix, sec. Ill)-is based on the idea that secondment
establishes a special legal relationship between the staff member and the releas-
ine establishment. On the other hand. vis-à-vis the receivine establishment.
secondment is a simple fact which Lertainly does not preclude the latte;
establishment (rom weighing it Ciustas it does in respect ofcertain factors which
itcannot change, such as the age, nationality, qualifications, etc., of the person
concerned) but, of course, on the obvious condition that this does not run
counter to its rules, especially if they derive from the Organization's public
policy. It is a fortiori inadmissible that the existence of a special category of

appointment, in the determination of which the Organization has played no
part, should be sanctioned.

2. The Tribunal Has Failed to Uphold the Discretionary Power of the
Secretary-General in the Matter
12. In his Written Statement to the Court, Mr. Yakimetz States that the
impugned Judgement "widens the discretionary powers of the Secretary-

General at the expense of both the staff and the General Assembly" (p. 109,
supra). While this comment is accurate as regards the implications drawn by the
Tribunal from the adoption by the General Assembly of resolution 37/126 (see
para. 24 below), it is nor, on the other hand, applicable to the first part of
Judgement No. 333 (paras. II to XIII).
On the contrary, since the Tribunal has held that the chief administrative
officer of the Secretariat had no alternative but to bow to the refusal of the
Soviet Union to renew the Aoolicant's secondment. it has erroneouslv admitted
that the Secretary-General c&ld surrender the discretionarypower conferred by
the Charter on the Secretary-Gencral in this connection.
The Charter quite clearly confers discretionary power on the Secretary-
General with regard to the recruitment of staff: as chief administrative officer
of the Organization, to use the words of Article 97. it is incumbent on him to
appoint the staff by virtue of Article 101, paragraph 1, without receiving

"instructions (rom any government or from any other authority external Io the
Organization". as laid down in Article 100, paragraph 1.
This orinciole. recoenized bv a unanimous doctrine (see. fo. e.amnle. r ~.
Mohammed '~edjaoui; ~onrti'on publique internationale el influences
nationales, Pedone, Paris 1958,pp. 60et seq., or Alain Plantey, Droif elprati-
quede lafonction publique internationale, CNRS, Paris, 1977,particularly pp.
301 et seq.), is upheld by an absolutely consistent jurisprudence, particularly as
regards the renewal (or non-renewal) of fixed-term appointments (cf. among
very many decisions, UNAT. 287, Harkinsv. UNRWA, or ILOAT, 131,Segers
v. WHO; 251, De Sancfis v. FAO; 415, Halliwell v. WHO, etc.).
There seems. moreover. to be no disaareement between the oarties on this
issue. as boih ihe Applicani and rhc ~csiondcni base ihcmscl;es (see Judge-
ment. para. XIX) on 11.0 Adminisiraiire Tribunal Judgmcni No. 431 (Rosescu
\../ALAI which affirmcd both thc nrinciolc of ihe chici administrative officer',
discretionary power and the limit; to this power; Judgement No. 191 of the

same Tribunal has given a particularly clear definition of these limits:
"Discretionary authority must not, however, be confused with arbitrary
oower: it must. amone other thines. alwavs be exercised lawfullv. and the
~ribu~al, which has belore it an apbeal &ainsi a decision taken by virtue
of that discretionary authority, must determine whether that decision was
taken with authority, is in regular form, whether the correct procedure has COMMENTS OF MR. YAKIMETZ 213

been followed and, as renards its lexditv under the Ornanization's own
rules, whether the ~dminLtration's decision was based & an error of law
or fact, or whether essential facts have not been taken into consideration,
or anain, whether conclusions which are clearlr false have been drawn
from the documents in the dossier, or finally, whether there has been a
misuse of authority." (ILOAT, 191, Bol10v. UNESCO.)

Hence the only question that arises is whether. in the case at issue, the
Secretary-General exercised the discretionary power vested in him and, if so,
whether such exercise was consistent with the limitations inherent in the very
concept of discretionary power.
13. Actually, in accordance with an absolutely general principle of law, any
authority invested with such a discretionary power cannot leave it to be exer-
cised by a third Party (see M. B, Akehurst, The Law Governing Employment

in Internntionol Orgnnizntions, Cambridge U.P., 1967, p. 153). And, while
international administrative jurisprudence on this point is relatively scarce-
heads of Secretanats tend to exceed their powers rather than to refrain from
using them-some judicial authorities have nevertheless been led to rescind the
acts of authorities which had erroneously held that the power vested in them was
tied (see ILOAT, 122,Chndsey v. UPU; 294. Connolly-Bnltisti(No. 4) v. FAO;
see also UNAT, 209, Corrndo v. UN SC).

In the same spirit, the international administrativetrihunals censure decisions
submitted to them when, voluntarily or inadvertently,the Respondent has based
his case on an incomplete dossier or has omitted to take essential facts into
account (see UNAT, 18, Crawford v. UN SC; 158, Fnsln v. UN SG and,
especially, the abundant jurisprudence of the ILOAT, e.g.: 191, Bnllo v.
UNESCO; 230, Stracey v. FAO, or 388, Bnbbor v. FAO).
14. It may, however, happen that the discretionary power is restricted or

slanted: this is so when statutory provisions require the head of the Secretariat
to take certain expressly stated factors into account; on such occasions the
tribunals, without taking the place of the authority in which the power of deci-
sion is vested, make sure that the said authority has actually taken these
elements into account (cf. UNAT. 62, Julhinrd v. UN SG or ILOAT, 415,
Holliwell v. WHO).
Such was precisely the situation in this case, because Article 101, paragraph

3. of the Charter makes the "necessitv of securine.the highest standardsof effi-
ciency. competence. and integrity" [lie '.paramoini consideration" which mus1
moiivatc the compeieni bodies "in the ernployment olihe sralf and in rhe derer-
mination of the conditions of service",
Certainly a "paramount consideration" is not an "exclusive consideraiion",
and the Respondent is right to infer rhat he can take into accouni al1the factors

thai will enable him to decide in the intrrrsr ol the Organizarton (sec H'ritten
Siaiement, p. 100,supra). And ir isdoubiful ihai. in the contexi of reriew pro-
seedings. the Internaiional Court ol Justice would agree io substirute iis own
o~inion for the ao~raisal made by the Senetarv-General in the liaht of t-e
v~rio~ ~factors to-b-~taken ~n~-~consid~ ~ ~ ~ ~ ~
But such is not the background Io the problem that arises in the present case:
the Court is not beinn asked to sar what the real interest of the Ornanization

is. but simply io findihai the ~dministraiiie Tribunal ha\ comrniiied an error
of law reliitingIO the provi,ions of the Charrrr by sanciioning the faci thai the
Secretary-Generrtl did no1 seek to determine what that inreresi was in the lighi
of al1the factors which ii was incumbcni on him to takc into iiccouni and. firsi
and foremost, the "paramount consideration" specified by the Charter itself.214 APPLICATION FOR REVIEW

In this sense, the case at issue does not differ,at least in terms of principles,
from the case which recently resulted in Administrative Tribunal Judgement
No. 310 (Eslabial v. UNSG). In this case, the Tribunal held that it was not for

the Secretary-General to alter the conditions for staff recruitment set forth in
Article LOIof the Charter and Staff Regulation 4.2,
"bv establishina as a 'oaramount' condition the search. however.
le2timate. for -'as wide' a geographical basis as possible', thereb;

eliminating the paramount condition set by the Charter in the interests of
the service",
although the second sentence of Article 101, paragraph 3, of the Charter

expressly makes equitable geographical distribution a factor to be taken into
account (in the same sense. see NATO Appeals Committee Decision No. 65 (a),
13 November 1965).
The rame :onsiderations should hate bcen applicd in the present sase. Ir ib
ï fact that at no rime were rhc stricrly professional mcrits of the Applicani con-
sidered. and Mr. Yakimetz was rieht in statine that thev are not mentioned at
al1in thegrounds for the ~ud~emeit (Written Statemen;. p. 133,supra), which
is further evidence that the exercise by the Tribunal of the jurisdiction vested

in it was incomplete.
15. In fact the Secretary-General has not only failed to take account of the
"paramount consideration" specified in the Charter but has also considered,
~.orooe.lv...hat he could not ~ ~~ ~ ~~ ~o account because of the oooosi..on of
the Soviet Government to extending the renewal of Mr. Yakimetz's appoint-
ment. He has thus erroneouslv surrendered the discretionary oo~~r available to
him.
In the present proceedings before the Court. the Respondent affirms that:

"Even in the case of appointments on secondment, the Respondent is
free to decide whether such oarticular aooointment is in the interests of the
Organization." (Written tat te ment 102.)

Thus he seems to be assertine the existence of the discretionarv oower which.
in this matter, is indeed vestèdin him (see also the ~espondeni's'comments to
the Tribunal. auoted in the Written Statement. oara. 58).
But, immediately after this correct satement,-he adds:

"If hc sonciders ilto be \o. the Rccpondent needs io obtain the con~enr
of ihc Go\crnmcnr (or oiher permanent çmploycr) hecause sccondmeni is,
of necessity, a tripartite affair." (Ibid.)

These two orooositions are clearlv incomoatible. as the second amounts to
admitting that the ~ecretary-General cannoi exercise the discretionary power
theoretically vested in him. because of the veto power that would be exercised
by the seconding authority.
It should also be borne in mind that while, before the Court (and already to
some extent before the Administrative Tribunal), the Respondent modifies his

initial positionslightly, it is in respect of the reason invoked in support of the
impugned decision that the legality of the decision must be appraised (see
UNAT, 89, Young v. UN SC, or ILOAT, 388, Babbar v. FAO); now, as the
Aoolicant has shown. it is because the Secretarv-General considered himself
b&nd by the vieus <ifthe Soi,ict Govcrnmeni that hç adopted ihc decision ai
issue(Wriiten Siaiemeni. p. 147,supra). Xloreover. ilisihis veryposition which
was endorsed bv the Tribunal . .; oara. 7 above) and. in the context of the
review proceedings, the Court is not called upon to rule on the positions taken COMMENTS OF MU. YAKlMETZ 215

in the proceedings by the Applicant but on the rnerits of the Judgement with
respect to the questions addressed to it.
16. It is true that, in support of his main argument, reiterated in the
irn~uened Judnement. the Resoondent invoked the authoritv of an earlier
juRsGudence of the Administraiive Tribunal (A/AC.~~/R.II~; p. 5) which, in
its Judgements No. 92 (Higginsv. SG of IMCO) and No. 192(Levcik v. UN
SC), held that in every secondment, "there are really three parties Io the
arrangement, narnely, the releasing organization, the receivingorganization and

the staff member concerned". and that
"Any subsequrnt change in the terms of ihc \econdmrnt iniiially agreed
on. for example 11sexteniion. obviou>l) requires the agreemeiit of the thrce
parties involved. When a Government which has seconded Io the

Secretariat of the United Nations refuses to extend the secondment, the
Secretary-General of the United Nations, as the administrative head of the
Orp-nization, is obliged Io take into account the decision of the Govern-
ment.''

Independently of the limited evidentiary value of these precedents-the Hig-
gins case concerned an inter-agency secondment and, in the Levcik case, the
Tribunal held that there was no secondment-il is far from evident that the
inferences which the Judgement (para. IV)and the Respondent (Written State-
ment, appendix, para. 7)draw frorn hisjurisprudence are correct. The sentences
quoted are actually arnbiguous.
On the one hand. it is auite clear that extension of the secondment itself
requires the consent of the initial employer, but this is a simple fact so far as
the Organization is concerned (see Dara. II above); there is no "trilaterai agree-
ment on secondment" between the releasing State, the Organization and the per-
son concerned (or, in any case, no evidence of this has been furnished and the
regularity of such an agreement could be disputed); actually an interna1practice

of the Soviet Union has been followed (the facts of which. moreover. Mr.
Yakimetz contests on the basis of not insubstantial arguments-see para. 8
above), and this point was mentioned in the Applicant's letter of appointment.
This fact. admitted bv the staff member bv his si-nature and known to the
Organization. may he taken inIo account by the Organization at the time of
appointment. and it is leaitirnate for it "to take account" of any change that
mav. o-~~~~i~ ~ ~s co~ ~ ~ion
The Canadian Ciovernment righily points oui rhai "secondmçnis ma) be a
uiçful tool io encourage a uider <electii)nof staff boih geographically and in
terrns of cxpericnce" (Writiçn Siaierneni, p. 166. supra); and this tool would
have icÿr~.ely3ny meaning unless the employer con\çnting IO the secondment
had some reasonableassurancethat the arguments ihat he rnight present forthe
return of the person concerned to his releasing establishment would be con-

sidered with objectivity.
17. But taking into account the views expressed by the Governrnent of a
member State in order to determine what constitutes the interest of the
Organization is one thing; to make this the exclusive basis, in this case, for the
position adopted is another and very different matter.

"If a [head of a Secretariat] intends to appoint to the Staff someone who
is a governrnent official in a member State he will normally consult the
member State, which rnay wish to keep the official in its service. Sirnilarly,
if such a governrnent official's appointment is to be extended, it is
reasonable that the organization should again consult the member State,216 APPLICATION FOR REVIEW

which may have good reason to re-employ him. This does not mean that
a director-general must bow unquestioningly to the wishes of the govern-
ment he consults. He will be right to accede where sound reasons for
opposition are expressed or implied. But he may not forgo taking a deci-
sion in the organization's interests for the sole purpose of satisfying a
member State. The organization has an interest in being on good terms
with al1member States, but that is no valid ground for a director-general
to fall in with the wishes of every one of them." (ILOAT. 431, Rosescu v.
IAEA .)

Judgement No. 333 (para. XIX) emphasizes that the circumstances of the
Rosescu case were very different from those of the present case; the essential
difference resides in the tact that. in the Rosescutaie. the Resoondent denied
that he had yielded to the presskes of Romania which was bpposed to the
renewal of the Applicant's appointment, whereas, in the present case, the
Secretary-Ceneral expresslyholds that the opposition of the Soviet Union to any
extension of the secondment constitutes a legal impediment to renewal of the
appointment; furthermore, in the two cases:
- The Applicant was seconded from his national civil service (Mr. Yakimetz
contests this but Mr. Rosescu apparently never denied il);

- the person concerned was a staff member whom the service to which he was
assigned wished to continue employing;
- the YeleasingState was opposed~to thégranting of a further appointment;
- and the reinstatement of the Applicant in hisoriginal post could not be con-
templated.
Drawina the inference, the IL0 Administrative Tribunal rescinded the
impugnîd decirion uhich could onlg ha\.e been taken "ai leasi to a large extent.
(in]a desire ro deferIOthe uill of the Ronianian authoritirs"(~brd.~ thui confir-
ming that, while an organization may take account of the views of member
States, it cannot reach its decision solely in the light of the opposition of such

a State to a measure affecting a staff member.
"Such an oh~cction . . cannol be resoncilcd wiih the fundïmcntal prin.
ciple of the independence of an iiiteri~ariorialtireanirarion in relîrion io itr
member States: it oug-t not to form anv ..rt of the lee-l basis of the deci-
sion impugned.
In restricting itself to this single reason, which istainted by illegality, and
in omitting to exercise its discretionary power .. . the (Respondent)
misinterpreted its own competence. and the decision impugned must
accordingly be quashed" (ILOAT, 122, Chodsey v. UPU);

"The Organization cannot bow to a government's wishes before making
sure that they are compatible with its own interests" (ILOAT, 448, Tron-
coso v. PAHO/ WHO) ;
"[lt] must enjoy the full sovereignty of its own authority and must not
be to any extent subject to external influence emanating from any one of
its member States: in this resoect the most strict and clear orovisions
guarantee its compiete independence and that of its officiais" (ILOAT, 15,
Leff v. UNESCO; see also 17, In Re Duberg).

This was expressed very forcefully and concisely by the Appeals Board of
the International Centre for Advanced Mediterranean Agronomie Studies
(ICAMAS) in the first decision which it rendered, on 10March 1972,under the
chairmanship of Professor Maresca. in a case very similar to the present one: COMMENTS OF MR. YAKtMETZ 217 ,

the services of the Annlicant, an administrative officer in the French Ministry
of the Interior and sconded to the Organization. had been tcrminated becausç
the French Government had indicated that itwould not exrend his secondment
beyond the specified date. The Appeals Board declared:

"Accordine to a peneral nrincinle of the law of international oraaniza-
tions, each organization enjoys fui1autonomy vis-à-vismemher ~tses and
particularly in its relations with its staff, so that theecall of an official
seconded to such an oreanization bv his releasing State cannot i~sofocto
determine the terminatik of his functions within the said orgaiization."
(ICAMAS Appeals Board, Broult v. ICAMAS.)

For having taken the opposite view, the United Nations Administrative
Tribunal has permitted the fundamental principle of the independence of the
Secretary-General vis-à-vis member States to be seriously distorted. And this is
al1the more certainly an error of law relating to the provisions of the Charter
because this principle is reiterated in Article 100of the United Nations Charter.
At the same lime, the Administrative Tribunal has failed to uphold Article 101,
paragraph 3-as it has sanctioned the Secretary-General's failure to respect
the "oaramount consideration" established bv that ~rovision-and it has
erron~ously permitted substitution by the ~ecrftary-Gineral of a cornpetence

deriving frorn the discretionary power conferred on him by Articles 97 and 101.
paragaph 1, in the interest of the Organization

3. TheTribunal Has Failed to Uphold Respect for theFundamentalGuarantees
Accorded to United Nations Staff

18. By its grounds, Judgement No. 333 is incompatible with the Charter pro-
visions that make the Secretary-General the sole judge of the interest of the
Organization in the matter of staff recruitment and, more generally, of staff
policy-subject only to complying with the instructions of the Charter itself or
the General Assembly. By its implications, this decision also poses serious
threats for the fundamental guarantees accorded by the Charter to United

Nations staff (and. for not having concerned itself therewith in spite of the
arguments developed at length on this aspect by the Applicant, the Admini-
strative Tribunal has failed to exercise fully the jurisdiction vested in it).
By making seconded staff members "second-class" officiais, the impugned
Judgement actually jeopardizes both the rights to which Mr. Yakimetz is en-
titled under the Charter as an international civil servant and what might he
called his "professional" or "statutory" rights, and it threatens the exercise by
the Applicant of certain human rights which are guaranteed to every human
being and for which the United Nations must ensure respect.
In fact, the adjudication

- does not guarantee the independence of certain staff members vis-à-vis
member States;
- introduces discrimination as.between staff members;
- may ultimately endanger exercise of the right of every individual to change
his or her nationality;
- and excludes the right to change one's employer.

19. Independence vis-à-vis governments and any other authority external Io
the Organization is both a right and a duty not only for the Secretary-General
(see above) but also for al1staff rnembers. It is laid down and guaranteed by
Article 100 of the Charter:218 APPLICATION FOR REVIEW

"1. In the performance of their duties the Secretary-Ceneral and the
staff shall not seek or receive instructions from any aovernrnent or from
any oihcr auihoriiy exiernal to thc Organiraiion. Th& shall refrain from
any action which rnighi reflect on their position as iniernaiional officials
responsible only ta the Organization.
2. Each Member of the United Nations undertakes to respect the
exclusivelyinternational character of the responsibilities of the Secretary-
General and the staff and not ta seek to influence them in the discharge
of their responsihilities."

The principle was accepted even before the founding of the United Nations,
Mme. Bastid, for example, wrote as follows:

"An international institution must be under the control and direction of
the representatives of States, but it is not admissible that international civil
servants should be in anv sense under the control of their State of oriein.
that being contrary to théconcept of international serviceand even of &vil
service. In legalterms, an attempt by a State to influence its nationals who
are international civil servants runs counter ta the obligations which it has

contracted, in particular on the establishment of the international body; in
practical and administrative terms, any provision that might encroach on
the authority of the chief administrative officer and might even take its
place is liable to introduce, within the international body, an element of
disintegration al1of whose implications cannot be evaluated in advance."
(Suzanne Basdevant, Lesfonctionnaires internationaux, Sirey. Paris, 1931,
p. 155.)

And today authors are agreed on viewing the independence accorded ta staff
members vis-à-visStates and, in particular. vis-à-vistheir countries of origin,
as the keystone of the international civil service system conceived 40 years ago
in San Francisco (cf. M. B. Akehurst. oo. cil.. on. 5 ff.: M. Bediaoui. oo. cil..
passim. noi. pp. j7 If.; Georges ang gr i ~da~o~rtion publique ~nter~at;onal~
Sijthoff. Leyde. pp. 75 ff.; Theodor Meron, "Staiuc and Independence of the
Iniernational Civil Service~~ .CADl 1980-11.No. 167. . ... 285~3~4. ..ssim:
A. Plantey. op. cit., pp. 112 If.; S. M. Schwebel, "The International Character
of thesecretariat of the United Nations", EYEK 1953,pp. 71-115; Jean Siotis,
Osoi sur le secrdtariat internafional. Droz. Ceneva. n. 209: etc.).
.. . .
Although they have rarely had occasion to apply the principle directly, inter-
national administrative authorities bave sometimes reaffirmed its imuortance
(see, in this connection, the jurisprudence quoted in the ~pplicant's~ritten
Statement and the judgements rendered by the Administrative Tribunals of the
IL0 and the United Nations in cases arising from the consequences of the
"witch huntrin the United States. esneciallvILOAT. 15.Leffv. .NES.-: 17.
Duberg v. UNESCO; UNAT, 18, 6rarowfo;dv. the ~ecretary-~eneral) and, in
its above-mentioned decision (seepara. 17above), the ICAMAS Aupeals Board
emphasized. precisely on the occasion of the non-reuewal of the appointment
of a seconded staff member because of the opposition of the State of origin,
that :

"II is a-eeneral rrinci7le that the indenendence of the international civil
servant would be seriously jeopardized if a member State were able,to
interfere at its own discretion in the relationship between the international
organization and its staff member."

20. The fact of making the renewal of any seconded staff member's service COMMENTS OF MR. YAKIMETZ 219

relationship subject to the agreement of his government is incompatible with the
verv orinciole of his indeoendence vis-à-vis that eovernment.
Thégounds on which ihe Court based its advirory opinion of II April 1949
in order to affirm the right of international civil servants to the protection of
their Organization provide very sound guidelines in this connection:

"To ensure the indeoendence of the aeent. and. conseouentlv. the
independent action of tie Organization itself, it is esséntialth& in Grfor-
ming his dulies he need not have to rely on any other protection than that
of theOrgani~ation (save of course for the mort direct and immediate pro-
tection due from the State in whose territory he ma) be). In particular, he
should not have to relv on the orotection of bis own State. It he had to relv
on that State, his indépendence might well be compromised. contrary tb
the principle applied by Article 100of the Charter." (I.C.J. Reports 1949,
p. 183.)

The same reasonine-an..ies in this case: the indeoendence of international
civil servants seconded from their national civil service would be gravely jeopar-
dized if the professional future of the persons concerned within the Organiza-
tion denendid entirelv on the eoodwill of the releas-na establishment: not onlv
would the insesurity inherent in fixed-term appointments be considerably
increased. hui such a vaff member uould also hate IO be blessed with extraor-
dinary strength of character, assuming the occasion arose, to make the interest
of the Organization-which could not guarantee him continuous em-
ployment-take primacy over the possibly conflicting interest, in a given case,
of his government. his former and future employer on whom his future profes-
sional career would entirely depend (see. on this point, the comments of the
ltalian Government. p. 158, supra).
The facts given in the impugned Judgement also show that the possihility of
pressure being exerted by the government of a member State both on the
Oraanization itself and on staff members of its nationality is not just a
schoo~room hypothesis; did not the Soviet authorities, for example, intërvene
in order to limit to one year the previous renewal of Mr. Yakimetz's appoint-
ment (Judgement,para. X); and did they not contemplate "replacing the Appli-
cant by another person whom they had already selected and whom they wished
to be trained further by the Applicant", and suggest to him that he leave for
Moscow for chat ouroose iibid .ara. XI)? These oractices ounht to be con-
demned perse; thé~dministrathé ~ribunal's ~udgement, by dangling a sword
of Damocles over the heads of seconded staff members, legitimizes such prac-
tices or. in anv event. ooens uo verv encoura-in-.oros.ects for their use
21. At the same tirné, the 'Tribina1 introduces inequalities between staff
members to the extent that it severely limits the career prospects of international
civil servants seconded from their national civil services
Unquestionably, there exists no actual "right to a career" in the international
civil service, and the problem is made al1 the more complex by the fact that
fixed-term appointments do not in principle enable their holders to count on
their renewal. The fact nevertheless remains that

"when he takes up service with anrganization, an official may reasonably
hope some day Io advance in grade" (ILOAT, 365, Lamadie (No. 2) und
Kraunen v. IPI; see also No. 526,Puel v. WMO),
and that staff reeulations or rules make no distinction in this connection in
terms of type, of-appointment Owing IO the particular precariousners of iheir
situation and to theinfluence which. according 10the Tribunal. States arc en220 APPLICATION FOR REVIEW

titled to exert on decisions affecting their seconded staff members, these staff
members find themselvesin a decidedlv inferior situation in this re.oect. indeed.
as pointed out by Mr. Yakimetz (~ritten Statement, pp. 141, et seq., supra);
this inequality between staff members is accompanied by an inequality between
member States because, while the Socialist countries are certainly not the only
ones to practise secondment, they are the only ones to do so in a completely
systematic manner-see, on a related problem, M. Bedjaoui, op. cil., page 70,
who shows that the difficulty already existed, on a much smaller scale, in the

1950s.
The Applicant argues that Article 8 of the Charter demands equal treatment
of al1staff members (Written Statement. DD. 141. et sea.. suera). However,
while a literal readini of this provision jukies this concksion, it is not the
dominant interpretation which holds that Article 8 prohibits discrimination
within the ~r~anization on the basis of gender.
Obviously it does not follow from this that the United Nations must not
respect, in ifs staff relations, the fundamental principle of non-discrimination
which, reiterated several times in the Charter (cf. the Preamble or Art. 1, para.
3, Art. 13, para. 1.6. Art. 55.c, etc.), is absolutely general in scope.
According to President Manfred Lachs,

"If the United Nations is to oromote. 'With a view to the creation of
conditions of stahiliiy and well-being. ..based on respcct for rhe principle
of equal riahi\ . . .of peoples'. 'conditions of cconomic aiid social pro-
gressand development' (Charter, Art. 55). it is obviously bound to pro-
claim and practise the same principles within its interna1 legal system: not
only to avoid but to bar al1types of discrimination among those serving
this Organization." (Application for Review of Judgement No. 273 of the

United Nations Administrative Tribunal, I.C.J. Reports 1982, p. 419.)
22. The same reasoning applies to other human rights whose exerciseis com-
promised by the impugned Judgement.
The question arises, in the first place in the context of the rights of every
human being to leave his or her country, to seek and avail himself or herself of

asylum in any other country and to change his or her nationality (rights pro-
claimed respectively in Arts. 13, 14 and 15 of the Universal Declaration of
Human Rights of 10 December 1948).
It is in the Written Statement of the United States Government that this
problem is addressed in most detail; but it is addressed rather ambiguously
because, alter criticizing the Administrative Tribunal for holding that the
Secretarv-General. in his decision. had to take into account the change of
nationality requesied by Mr. ~akimetz (pp. 177, et seq., supra), that GGern-
ment concedes that the Judgement admits, implicitly, that that was not a bar
to renewal of the appointment (pp. 183, et seq.. supra).
If that is so, it islikely that the Court will accede to the wish expressed by
the United States Government that the Court should confirm explicitly this

implicit finding of the Tribunal so as to clarify the law (ibid., p. 183, supra),
for that is not the purpose of review proceedings.
But it is not certain that the United Statesinterpretation of paragraph XII of
Judnement No. 333 is the correct one: even thounh the Tribunal Dresents the
proB~cmwith some hesiiaiion (iircfcrs IO ihc '.qu;siion of his suiiabiliiy as an
inicrnarional civilservant"), il neverihelcss also refer, io ils Jcdgemenl No. 326
/Fischman v. UN SGI and to documents on which it had based itself in order
to hold that, a priori, an application for permanent residence status in the
United States "in no way represents an interest of the United Nations". COMMENTS OF MR. YAKIMETZ 221

Regardlessof the fact that the circular quoted was not in force in 1983, as
Mr. Yakirnetz (Written Statement, p. 136, su~ro) shows, the question arisesas
to whether this remark does not reflect some-regettable confusion on the part
of the Tribunal; either, as seemsto be admitted in the Judgement itself (para.
XII. in fine). it is a needlessdigression whose only point would be to create
suspicion about the ~p~licant's~ersonalit~; or thi; rëasoning constitutes sup-

port of the finding and must be analysedto be an error of law becauseit would
mean that international civil servants find themselvesdenied the rirhts referred
toahove which belong to every man and woman. This is the positiin unlessone
admits, as the Administrative Tribunal has done in its Judgement No. 326
(Fischman. above). that the oerson concerned could "resian from his oost and
ieleasehimself thérebyfrom'all constraints of the service" but to enioy one's

internationally proclaimed human rights at the expenseof losing one's job is
verv uncomoromisinr loric and would create an unacceotable dilemma
hile theie is. without doubt, a great deal of truth and wisdom in the idea
that, so far as possible, international civil servants must note "intellectual or
soiritual statelessoersons". this can be nothine more than a een-ral oolitical
principle which may not be invoked as a rule of law in any given caseagainst
a particular civil servant. And it would he particularly unacceptable in the pres-

ent casesince Mr. Yakimetz made it known very quickly that he intended to
acquire the nationality of another State Member of the Organization.
As Judge Bedjaoui wrote, strictly in line with the IL0 Administrative Tri-
bunal's jurisprudence of the 1950s(see ILOAT, 17, Duberg v. UNESCO);

"Respect for alleged national loyalty is legally irreconcilable, whatever

may have been raid about it, with international loyalty and must remain
alien to the international civil service" (op. cil., p. 162).

23. Whatever uncertainties may exist concerning the scopeof the Judgement
in question as regards the right to change one's nationality. there is another
human ri~ht which this decision certainly violates: that of the free choice of
one's wori and of one's employer, to which every human being is entitled (by

virtue, interalia, of Article 23 of the Universal Declaration of Human Rights
and Article 6 of the International Covenant on Economic. Social and cultural
Rights of 6 December 1966).
While, strictly speaking, the ~udgement did not'require the Applicant to
return to the service of his former emolover. which. moreover. would have
exceeded the Tribunal's competence and ko"ld hardly have been realistic-

excluded from the international civil service. Mr. Yakimetz is free to seekwork
elsewhere.But. hereaea-.. the reasonine is hasedon verv uncomoromisine lo- -
as itimplies the existenceof an automaiic lin). betwee"'the end'of secondment
and the end of employmcnt in the Unitcd Nations (rcc. in particular. para. 7
above). the Administrative Tribuiial actually require< sesondedstaff membcrr
to re5umc their former function or to take a very erious risk. Ir15.morcover.
the ehistenseof this risk whish elposes staff membcrr "on sesondment" mo\t
to pressures from their releasing tat teseepara. 20 above).

One might well ask whether the very notion of secondment does not imply,
for the seconded person, an obligation to return to the service of his original
emolover on the exoirv of the neriod soecified. Anart from the fact that. in
~ud~ekent No. 333; the ~ribuial says nothing of ihe kind and limits itself to
holding that the oerson concerned "must face the conseauencesfor his actionsv
(para.~ll), itwbuld seemthat snch an excessiveobligation imposed by law and

one that contravenes recognized human rights should be justilied only by222 APPLlCATlON FOR REVlEW

express and clear rules; no such rules were invoked either hy the Respondent or
the Administrative Tribunal.
Furthermore. the very definition of secondment (seepara. II above) indicates
that secondment is conceived first of al1in the interest of the staff memher:
he derives therefrom the assurance that he can be reinstated in his releasing
establishment. The earlier jurisprudence of international administrative tribu-
nals is also clearlv e~tahli~hedin this sense. as .ointed out in the dissentine
opinion of Mr. ~ein, attached to the Judgement, which quotes the cases of H;&
fins. Levcik and Rosescu (No. 9). but there are very many more examoles: thus,
in it\Judgement No. 56(Agiron v. UNSG). the ~nited Nation, ~dministrati\e

Tribunal made Islear that a Uniicd Nations stafi memher ternpor~rily asrigned
to the Technical Assistance Board could. at the end of such assianment. be
reinstated in a Secrerariai port Conversely. the qamr Tribunal held that another
United Nations staff member, scconded IOthe Technical Assistance board. had
dulv resiened from his orieinal nost and the Tribunal had drawn the relevant
inférences(UNAT, 95, ~i&d ;. UN SC).
This las1decision stands in sharp contras1 to Judgement No. 333 in whichthe
Tribunal refused to ascribe anv leeal effect whatsoever to the resienation from
the Soviet civil servicesubmitied Ibythe Applicant on 10 ~ebruary 1983.
Hence the Administrative Tribunal has found that the Applicant could not
release himself from the professional bond linking him-according to the
Tribunal-Io the Government of his country and has no1 recognized the right
of Mr. Yakimetz-a right to which every person is entitled-to change his
emolover.
fur;hermore. follo~ing-ihis Iineof logic. by limiting itself to examining the
question as IO whether the Applicant war eniitled to renewal of hissecondmenr

(as ihir is pariirularly apparent from the partial finding set forth in paragraph
Xlll of the Judgemeiii) whereas the real problem uas that of the renewal of the
a~~oinrmenr. the Tribunal has failed to exercise jurisdiction vested in it on an
esiential point

II.THE TRIBUNAL HAS FAlLED TO UPHOLD THE SOVEREIGN POLICY-MAKING POWER
VESTED IN THE GENERAL ASSEMBLY

24. Curiously, the Administrative Tribunal, which has based itself on the
particular nature wbich, according-to it, should be attributed to fixed-term
appointments "on secondment" in order to deny any entitlement 10, and any
leeitimate exoectancv of. renewal of the service relationshio of Mr. Yakimetz
on a temporary basis, makes almost no reference to secondment in the part of
the Judgement where closer examination is given to the question of granting the

~o..icant a career an..intment haras. xÏV-XX)
It is truc that !hi5 passage of the decision is difficult to interpret because one
of the iwo memhers of the "maiorii!". hlr. F..Uçtor. the President, dissociates
himself from the reasonine followed on this ooint and States. with regard to the
fact of secondment that 'the Applicant was in my view not eligibïe for con-
sideration for a career employment". whereas almost the entire dissenting opin-
ion of the Vice-President, A. Kean, is devoted to establishing not only that the
Applicant was entitled to every reasonable consideration for a career employ-
ment but also that this was no1 done.
In any event the result is that this part of the Judgement is approved only by
one member of the Tribunal.
It does not, however, seem necessary to dwell on the statement of the Presi-
dent of the Tribunal: being based on the same reasoning as that followed in the224 APPLICATION FOR REVIEW

"is entitled to adopt informal procedures rather than use the formal
adsisory machinery esiablished by the 5iaff rulec such as the Appointmcnr
and Promotion Board" (para. 95).
So far as its principle is concerned, this position appears to be correct and in

conformity with the provisions of Article 101, paragraph 1, of the Charter
which allows the Secretary-Generalgreat freedom of action in what might be
called the "aaos in the rules" left bv the General Assemblv. But. as alreadv
stressed,disGtionary power "must not be confused with arbitrary power" (se;
para. 12above). In particular, it is important that the Secretary-Generalshould
decide only after a ieasonahle procedure enables him to be fully inforrned.
28. In the present case it seems difficultIo take this condition for granted.
First of all, the question arises as to whether the Secretary-General was en-
titled to dispense with the intervention of the Appointrnent and Promotion
Board which, under Staff Rule 104.14.f. (i)-adopted by the General Assem-
bly-has the function of recommending in respect of "proposed probationary
appointments and other proposed appointments of a probable duration of one
year or more", for if is hard to see in what respect resolution 37/126 should
im~..any .xception whatsoever to the ore-existing procedures. In any case, in
accordance with a general principle of law, consiste$ly applied by international
judicial authorities, the chief administrative officer of the Secretariat must,
when taking a decision affectingthe status of a staff memher, seek to apprise
himself of al1aspects of the problem (see, for example, UNAT, 203, Sengol v.
UN SG, or ILOAT, 32, Gorcin v. UNESCO; 136, Goya1 v.UNESCO or 268,

86v. WHO). Now. inthe present case. the Secretary-Generaldid not establish
any body and did not seekany impartial opinion before taking the decision not
to grant Mr. Yakimetz a career appointment.
He maintained this attitude durina the adversarv nroceedinas in the
Administrative Tribunal, limiting himielf to affirrning ihat he had "given
reasonable consideration" to the Applicant's case for the purposes of a career
aooointment but without aivin-.anv further ex~lanation either about the pro-
cidure followed or aboutfhe grounds for his decision. Thus, the esp pondent
has not fulfilled the obligation incumbent on him

"to enable the Court to render a complete decision on the dis~ute"
(ILOAT, 574, Hubeou v. EPO, seealso, for example. UNAT. 4, ~&roni
and orhers v. UN SG or 131. Reslrepo v. UN SC).
In comparable cases, the Tribunal has censured such an attitude on the pan of

the Respondent; thus, in its Judgement No. 310 (Estobiol, above):
"The Applicant and the Respondent disagree as to whether the Appli-
cant's candidature (for a vacancy) was ruled out without being taken into
consideration or examined (.. .).The Tribunal's first task was to settle this
point",

althoue- the Resnondent had declared that he had "carefullv examined" this
candidature. TheTribunal has done no such thing in the present case, anymore
than it has used the powers of inquiry, vested in it under Articles 10and 17of
its Rules, 10obtain information, thereby omitting to exercisejurisdiction vested
in it.
In the circumstances of the present case, the Tribunal's passivity is al1the
more open to criticism hecauseit led the Tribunal to put forhard a-hypothesis
concerning the grounds on which the Respondent based its decision, grounds
which cannot justify the decision: COMMENTS OF MR. YAKIMETZ 225

"He apparently decided, in the background of secondment of the Appli-
cant during the period of one year from 27 December 1982to 26 December
1983, that the Applicant could no1 be given a probationary appointment"

(para. XVIII).
Contrarv to what the Resoondent writes, the Tribunal hasno1"found" that "al1

the circ~mstance~were con\ideredW(Written Staremenr. para. 96): 11hasin fact
committed the same error on questions of law relaring ru the provisions of the
Charter as thar which is analysed in paragraphs 12et srq. above relating to the
non.renewal of the Applisant's appointment.

In addition, it seemsunîccîpiable thai the Sccretary-General, whose powers
in resoectof staff recruitment are. by Article 101. .ara-raoh 1. of the Charter,
made'sublecr to sompliance uirh the-rules laid down bv the Gcnîral Assembly.
should void [hem oltheir substanceand exempt him\elf lrom al1cuntrol in rheir
a~~lication. Rv toleratine this attitude. the Administrative Tribunal has lailcd

tocomply with the rulesÏaid down by the Charter relating to the hierarchy of
the respective competencies of the General Assembly and of the Secretary-
General in this field.
29. In conclusion, there are, in Judgement No. 333 of the Administrative
Tribunal of the UnitedNarionsseverolerrors in questions of law relating topro-

visions of the Charter and to the fundamen!al urinciules of international civil
service liw, and il oppears that théTribunal haiomitied to &ercise jurisdiction
vestedin il on several important points, even thou~h the two caregoriesofflaws
tainring the decision cannot always be cleorly d&ingu&hed

Done at Paris, on 17 June 1985
in three copies,

Alain PELLET. 1. The issue before the Administrative Tribunal of the United Nations.

2. The request for an advisory opinion addressed to the International Court
of Justice.
3. Purpose of the legal opinion requested.
4. Question of the compatibility of the questions addressed to the Court.
5. Scope of the first question addressed to the Court.
6. Plan of the legal opinion.

1. THE TRIBUNAL HAS FAILED TO UPHOLD THE PROVISIONS OF THE CHARTER
GUARANTEEING THE INDEPENDENCE OF THE INTERNATIONAL CIVILSERVICE

7. Role of the notion of secondment in the reasoning of the Tribunal.
8. Question of the reality of secondment.

1. The Tribunal Has Sanctioned the Existence of a New Category ol
Appointment

9. Sanctioning by the Tribunal of the notion of "appointment on
secondment".
10. Non-existence in law of "appointments on secondment".
Il. Definition of "secondment"-Secondment is a simple fact with respect to
the Organization.

2. The Tribunal Has Failed to Uphold the Discretionary Power Vested in the
Secretary-General

12. A discretionary power is vested in the Secretary-General.
13. Obligation to exercise the discretionary power.
14. Obligation to take into account the "paramount consideration" referred to

in the Charter.
15. Substitution by the Respondent of a power deriving from the discretionary
authority vested in him.
16. The Secretary-General may take into account the fact of the
secondment ...
17. . . .but he cannot rely on an external authority in taking decisions within
his discretionary power.

3. The Tribunal Has Failed to Uphold the Fundamental Guarantees Accorded
to United Nations Staff

18. Statutory rights and human rights.
19. Importance of the principle of the independence of international civil
servants.
20. Violation of the principle by Judgement No. 333.

21. Violation of the principle of the equality of staff rnembers.
22. Question of violation of the right to change one's nationality.
23. Violation of the principle of the freedom to choose one's employer and the
right to renounce secondment. COMMENTS OF MR. YAKI~TZ 227

II. THE TRIBUNALHAS FAILED TO UPHOLO THE SOVEREICN POLICY-MAKINO POWER
VESTED IN THE CENERAL ASSEMBLY

24. A Judnement rendered "bv the minoritv",
25. an da toryature of Genéial ~ssembl; resolution 37/126.
26. Uncertainties relatinr to the meaning of resolution 37/126,
27. Discretionarv oowerof the Secretarv-General.
28. The errors chmmitted by the ~ribunal.
29. Conclusion.

Annex 1. Letter Dared 19December 1984frorn the President of the Federation
of International Civil Servants' Associations.
Annex 2. Letter Daled 21 December 1984 /rom the President of rhe Co-
ordinating Cornmittee for Independent Staff Unions and Associa-
tions of the United NationsSystem. APPLICATION FOR REVlEW

ANNEX1. FEDERATIO NF INTERNATIONC ALILSERVANTS A'SSOCUTIONS

FICSA/AMCL.PAR/84.50 Paris, 19 December 1984.

MR. ALASTAJR MCLURO, PRESDENT ,O MR. AUUN PELLET

On 23 Aunust 1984. the Committee on Anolications for Review of
~dministrativ;Tribunal Judgements decided to ;;bmit Judgement No. 333.
rrndered on 8 June 1984by the United Nation, Administratibe Tribunal in the
case of Yakimetzanainstthe Secrefarv-General. to the International Court of
---..--.
Gravely concerned by the oosition taken by the Tribunal in this Judaement.
the ~edeFationof lnter~a1io"al Civil ~ervanti' Associations (FICSA) wlshes to
make it, contributioIO the presentation of Mr. Yakimctz's contentions during
the uroceedinns in the Court of The Hague.

T; that end; we have decided, by agreement with Mr. Yakimetl and the Co.
ordinaring Committee of Independent Staff Associations and Union\ (which
includes among its members the United Nations Staff Union (New York)), to
request a legalopinion from a specialist in international civil service lawonthe
validity of this Judgement with respect to the fundamental principles in force.
Would it be uossible for you to undertake this work?
If, as we hope, yourrepiy is affirmative, we should be grateful if you would
examine, in particular, the foilowing questions with regard to the current review
proceedings :

(a) ln this case, has the Secretary-General correctly applied the rules in force
relating to the international civil service?
(b) Was the Secretary-General obliged to follow the guidelines given by the
General Assembly in the matter and, if so, has he duly discharged this
ohlination-

(c) Has the Secretary-General acted in conformity with the relevant provi-
sions of theCharter and, in particular, with Article 2;paragraph 1,and ~iticles
8, 100and 101and with the fundamental principle of the independence of the
international civil service;
(dl And, more generally, assuming that the Secretary-General has acted in
conformity with the law in force,hastheTribunalduly exercisedthe jurisdiction
vested in it?

1would draw vour attention to the fact that the deadline for the written sub-
miçsionsof the Grlies has becn set at 14February 1985;ai Ur. Yakimetz wishes
Io be able to atiach this legal opinion andaçthe case may be. the comments
of FICSA Io his own commenis. 1should be most arateful if vou would notifv
me of your agreement in principle as soon as possible.

(Signed) Alastair McLuno,

President. COMMENTS OF MR. YAKIMETZ 229

ANNEX2. THECO-ORDINATIN CGOMMITTI OER INDEPENDEN STAFFUNIONS
AND ASSOCIATIO NSTHE UNITEDNATIONS SYSTEM

21 December 1984.

THE PRESIDENT, STAFF COMMIITEE TO PROFESSOR ALAIN PELLET

The United Nations Staff Union is aravelv concerned at the implications for
the Staff and for the Organiraiion itsëlf ot.~udgemeni No. 333 81 the United

NationsAdminirirative Tribunal.
The Co-ordinatinr Committec. reuresenilna the 25,000staff members of the
common system incruding the UN ~iaff union, and the Fedcration of Interna-
tional Civil Ser\r<nis, representing the 30,000 staff members of the common
system have decided that the issuessed bv this case transcend the well-known
differences between OurIwo federaiions, and have joined to request from you
an independent written statementnalyzina the applicable law and judicial prin-
cioles. to be annexed to the Statement of ihe ~Üülicant. Mr. Yakimetz. before

the ln'ternational Court. FlCSA will convey to'iou their concerns by separate
letter.
For your part we feel the case has substantial implications for the inde-
pendence, integrity and neutrality of the international civil service. We feel the
concept of a career international civil service withcontractual guarantees
is a fundamental part of the UN system and essential to the original intention
of the Charter. Furthermore, it is important that merit be considered the
orimary factor for apoointment and promotion and that al1staff reaardless of
-
nationality be affordéd equal treatment.
If the international system as we know it is to survive and flourish it must be
based uuon the recognition that national or oolitical considerations mus1 be
subordinate to the values exemplified in the UN Charter. We have fully sup-
ported Mr. Yakimetz in his attempt to ensure that as an international civil ser-
vant he begiven due consideration for continued employment with an-Oraaniza-
tion he ha; undertaken 10 serve with distinction for many years.
1trust YOU will reflect al1these concerns in your hrief. 1wish to thank you
in advance for your valuable assistance.

(Signed) George IRVING,
President
Staff Committee. 2. COMMENTS OF THE GOVERNMENT
OF THE UNITED STATES OF AMERICA

1. INTRODUCTION

1. The United States herewith submits its comments on the Statements con-
cerning Unitcd Nations Administrative Tribunal Judgement No. 333(Yakirncrz)
of the Secretnry-General of the United Nations (the Rcïpondcnt) and the Union
of Soviet Socialist Rcpublicr [USSR).These comments are subrnitted pursuant
Io the decision of the I'resident of the Court of 5 March 1985.made under Arti-
cle66. paragraph 4.of the Statute and Article 105,paragraph 2(a), of the Kules.

II. COMMENTS OF THE UNITED STATES OF AMERICA ON THE
STATEMENT SUBMITïED BY THE SECRETARY-GENERAL OF THE
UNITED NATIONS

A. The Tribunal's Judgement Fails tu Meei Even the Minimal Standard Sug-
gested by the Respondent for Determininp.Whether the l'rihunul Exercised the
Jurisdictiun ~onferred upon It

2. The Court has been asked by the Cornmittee to determine whether the
Tribunal failed to exercise iurisdiction conferredon il. At ~araeraohs 47-49
of its Statement, the esb bond sets ott the crieria it coitends ihe Court
should use in making this determination. The Respondent States in conclusion
that:
"The Tribunal exercises its iurisdiction if it examines the substance of
the Applicant's allegations orleas and determines whether those allega-
tions constitute 'non-observance of contracts of employment of staff
members of the Secretariat of the United Nations or of the terms of ap-
pointment of suchstaff members' ..." (Respondent's Statement. para. 49.)

This is a minimal standard. The United States believes that a higher standard
should apply, and that in certain cases a tribunal has noty the right, but the
obligation to raise certain issues on its o'. It is not necessary, however, to
argue here for a stricter standard, since the Tribunal's Judgement clearly fails
to meet even the minimal test suggested by the Respondent.
3. According to the Respondent, the Tribunal must first "examine the
substance of the Applicant's allegations". In this case, the Applicantalleged
that the Respondent improperly failed to consider the Applicant's request for
career employment because the Respondent mistakenly believed that it was
legally barred from doing so (Judgement, p. 49, supra). The Applicant's
allegalion is supported by the unambiguous language of the Respondent's letter
of 21 December 1983, wherein it was stated that ". ..the Organization agreed

If,for example,the partiesto a particularcwere to failto makereferenceta
fundamentalissueof Charterinterpretationthe Tribunalwouldcertainlynot be barred
from examiningif.Indeedtherecanbc no doubt that,weresuch an issueto be relevant
tosuch acase.the Tribunalwouldcommit crroriit failedto raisethe issuasr>onre. COMMENTS OF THE UNITED STATES 231

ioO limii the duration of your United 'laiions ser\i. "and by the virtually
coniernporaneous siatemcnir of ihree re5ponsible oiticial\ of the Respondeni.
al1of which confirmed that the Respondent believcdai ihat tiiiie iilhad no
choice but to denyfurthrr eiiiploymenIO the Appli~.antabsent approval by thc
Snviet ;tuihorities. tvhish under the cirsumsiance\. uas clearly not to be torih-
coming.
4. In ifs oleadines the Resoondent out forward a different version of the
facts.I arg;ed thafthe refusai to consider the Applicant's request had resulted

from an unfettered exercise of discretionesuondent's Answer. uaras. 21-24).
Although the Respondent brought forwaid no evidence that its version of the
facts was accurate, the Tribunal nonetheless apparently accepted it without even
notine that a fundamental issue of fact divided the oarties. much less rulins
upon-that issue As a resiilt, the Tribunal adopted a faciual contehi fori&
Judgemeni wherein the Applicant's allegation concerning a pos5ihle legal bar
could no1 loeicalls be addressed. 'TheTribunal ihus failcd comnletelv eiiher to

"examine thésub;tance9' of that allegation oto "determine" hhether it con-
stituted a violation of the Respondent's obligations. These failures were fun-
damental errors of procedure occasioning injustice as wellas failures to exercise
jurisdiction.

B. The Respondent's Statement with Respect Io the Issue of Failure Io Exercise
Jurisdiction 1s Ill-Founded and Unpersuasive

5. The Respondent makes three arguments in support of the assertion that
the Tribunal did not fail to exercise its iurisdiction to determine whether a leaal
bar existed to the further employment O-fthe Applicant on a non-seconded bas&.
The first of these arguments is that "the question Io which the Committee

referred was not in issue between the oarties" (Resuondent's Statement.
para. 57). As has becn noted above. it;as the ~eipondeni's re.uriring of
history and thr Tribunal's unquesiioning accepiance of ihiç unsupporied ver-
sion ofthe facts ihai allow the Kesoondcnt noIO indulnc in ihis soohistrv. The
legal issues in this caselating to-the exercise of jurisdiction and ihe question
of procedural error arise not from a formalistic comuarison of the parties'
oleadines but from the evidence. whichis uncontroverted. That the facts to the

contrary were before the ~ribunal only serves to underline the extent of its
failure Io exercise jurisdiction. The evidence shows the Respondent refused to
consider the ~pplicant's request because it believed itself to be legallyhound not
to do so. The Applicant alleged that no such legal prohibition existed. At this
point the issue was joined. The Tribunal, according even to the minimal
standard suaeested bv the Resoondent. was oblieated to "examine" that issue
despite the that tie ~es~ondent assértedins;bsequent arguments thatitdid
not exist. The Tribunal failed to discharge ils obligation.

2. THEQUESTION OF WHETHER A LEOAL BAREXISTED TO THE FURTHER
EMPLOYMEN OFTTHE APPLICAN1 TSA CONCRETIE SSUETHAT THE TRIBUNAW L AS
OBLICATE DO ADDRESS AND ADIUDICATE

6. Secondly. the Respondent seeks to characterize the Applicant's allegations
with respect to the existenceof a legal bar as "an abstract question" upon which232 APPLICATION FOR REVIEW

theTrihunal was not only freenot to comment, but was, in fact, obliged to leave
unaddressed. The Respondent asserts that the Tribunal

"must limit itself to oass iudeement uoon alleeations (or oleas) of non-
observance of contracts and Grms of appointment. ~he Tribunal must.
therefore analyze any pleas submitted to it to determine whether those
pleas involve an allegation of non-observance and, if so, then pass judge-
ment on those allegations." (Respondent's Statement, para. 59.)

7. One searches the Judgement in vain. however, forthe analysis the Respon-
dent asserts the Tribunal must conduct. The Respondent claims that evidence
of the requisite analysis is implicit in the fact that the Tribunal made no
reference to the question of a legal bar when it "associated" the Applicant's

pleas with the legal issues in the case (Respondent's Statement, para. 60). But
the sudden disappearance of further reference to this question is far more
plausibly explained hy another hypothesis. It is that the Tribunal simply
neelected to deal with the issue hecause it could not arise -onic~lly in the false
analytical context the Tribunal had constructed upon the unsupported assump-
tion that the Respondent's factual assertions were correct.

8. In the view of the United States. Drooer exercise of its functions . .anv
judicial body requires at least a minimai amount of explication in its decisions.
Those who turn to the Tribunal's Judgements for guidance concerning their
riehts and ohlieations should not he forced to erooe for meanine withouta clue
a;to what the-~rihunal concluded or why. &ilire to address-issues squarely
before theTrihunal, which must he decided in order to produce a logicallycom-

orehensible iudeement. constitutes. in Ourview. failurè to exerciseiurisdiction
as that term-is ised in ihe first queition posed tk the Court hy the cornmitt'e
9. Even had the Trihunal ruled, either implicitly or explicitly, that the Appli-
cant's plea with respect to a legal bar did not pose a question upon which the
Trihunal was competent 10rule under Article 2 of its Statute, the United States
helieves such a ruling would have heen incorrect. Such a ruling would mereiy

have chaneed an imolicit failure to exercise iurisdiction into an exolicit one. The
~~~licant-arguer inthe çontext of publicl;availahle lac15and siatcmentr thai
the Respondent made his decision no1io consider ihe Applicani's request under
a misa~orehension concernine his leaal oblinations. In so doine. the Aoolicant
argues; 'the Respondent fail& to gke effect to General ~sse%bly re;olution
37/126 (IV), which wasbinding upon the Respondent and therefore constituted

a oart of the terms and conditions of the ~.lic~ ~ ~-~~ ~ ~ ~ ~ ~ ~ issue falls
s&arely within the terms of Article 2 of the Tribunal's Statute, and the Trihunal
was thus fully competent to rule on it. It is not "ahstract": it is. rather, a con-
crete issue upon which the entire case turns.

3. ADIUDICATM OF THE QUESTION OF WHETHER A LEGAL BAREXlSTED 'IOTHE
FURTHER EMPLOYMEN OT THE APPLICANT IS LOGICAUY REQUIRED AT THE
THRESHOL DF THE ANALYSI OSFTHISCASE

10. The Respondent claims in its ihird argument with respectto ihe Commii-
tee's question sonserning juri~diction that the issue of wheiher the Respondent
was legally barred from offering continued employment would have become

Thase trained in the civillaw tradition might insteadcharacterizethe Tribunal's
failuretosa much as considerthe factualissues.muchlessits failureto explwhy it
ignaredthe Applicant'splea withrespectIoa legalbar. asa "proceduralerrorleadingto
injustice". COMMENTS OF THE UNITED STATES 233

ripe for decision only if the Tribunal had first found either that the Applicant
had a legal expectancy of further employment or that the Respondent had failed
to accord the A~olicant's reauest "every reasonable consideration" as reauired

by resolution 37/i26 (IV). ~he esp ponde c oi cludes by assening thai "lslince
neither of these preconditions existcd, it follows logically that no answer is
reauired" (Res~ondent's Statement. Dara. 61).

II. In fact, iogic is a stranger to this argument. Logic requires that the issue
of whether a legal bar existed be resolved before, not after, the questions of
exoectancv andwhether "everv reasonable consideration" was accorded the

~p~licant's request are addreskd (see, Exposédu Gouvernement italien, para.
4). If a legal bar existed, then ipsofacto, a legalexpectancy could not. If a legal
bar did not exist. tben an exoectancv mieht or miiht not exist. deoendinn uoon

the facts. If a lcgal bar had existed, ihc ~ispondenï would no1havébecn iblbed
to consider the Applicant's request (as the Respondenr indeed alleged in his
letter of 21 December 1983).In the absence oia legal bar, the Respondenr would

hate been obligaird under re$olution 37/126 (IV)to givethe Applicani's requesr
"every reasonable consideration", as the Applicant c~-tcndcd in his plcadings
to the Tribunal l.

12. As the Tribunal's Judgement amply demonstrates, it is impossible to
make sense of this case unless the question of whether the Respondent was
legally required to seek the approval of the Soviet anthorities before employing

the Appiicant after 26 December 1983 is answered at the threshold of the
analysis. The Tribunal's failure, for whatever reason, to deal with this critical

preliminary issue constitutes a failure to exercise jurisdiction.

C. The Resoondent Misconstrues the Tribunal's Decision with Resveet
Io Whelher "Every Reasonable Consideration"
Was Given to the Applicant's Request

13. The Tribunal's ruling on the issue of whether "every reasonable con-
sideration" was given the Applicant's request is of great importance to the law
oertainine to the Resoondent's oblinations under General Assemblv resolutions

as a geneial marrer, and it is thcrejore regrettable that the ~erpondent gros\ly
misconstrues that ruling. The Rcspondent asserts thai "lrlhe Tribunal . . .con-
cluded that this consideration had, in fact, been given" (Respondent's State-

ment, para. 74). The Tribunal did not so "condude". It ruled, rather, that the
Respondent was to be the sole judge of whether "every reasonable considera-
lion" had heen accorded the Annlicant's reauest. and that the Res~ondent had

so concludcd (Judgemeni, para: XVII). The ~ribhal rhus purportGd ro iransfer
ihe jurisdicrion conferred upon ii by its Siatute to another organ of ihe United
Nations, i.e.. the Secretariat. The Unitcd States believes ihis purportcd transfer

of jurisdiction to be invalid. and ihat ihe failure of the Tribunal iiself to rule
on wheiher "evcry reasonablc consideration" was accorded the Applicant'r
request was a failu~eof jurisdiction within the context of the cornmittee's ques-

Thcconclurion ihai theAppliwnidid nai bcncfitfrom a lcgalcxpectanc)docsnoi.

a< the Rcspandeniargues ai paragraph 73 01 it~Siatemeni.di,po,r. of the question
wh~ ~ ~ ~~ ~ ~ ~ - ~ ~ - r ~~ ~ ~~ ~~~.~~~~~~~il~~~ r ~ ~~,ex~r~.~~~~hen ~ ii relui~dio~ ~on
~i~ ~ ~~A~~~FeFn~'sre~ue~,. The n~~utivefindine with re~,c~t 10 exoectancv. .vallows
rhislaircrquc<rion IO hc a-kcd; ii Jws noi provtdc the an\*er. Sw al* pardgraph 31.
infra. uhrrc the UnitedSiaiesiommrni, un the use of th,,5amrargumcni by theSoviei234 APPLICATION FOR REVIEW

tion to the Court, as wellas an error of lawrelating to theCharter of the United
Nations.
14. The Respondent moreover incorrcctly characterizes this supposed finding
by the Tribunal as a "factual conclusion". seeking thereby to insulate itfrom
the scrutinv of the Court. The United States can conceive of no auestion more
clearly le& in nature than whether a certaincourse of action pursied by a party
to a dispute was or was not consistent with that party's legal obligations.
Whether the Resoondent comolied with the mandatorv standard imoosed bv

resolution 37/126(1~) and with its obligations under the.~harier are the central
legol questions that were before the Tribunal and are now beforc the Court.

D. The Respondent's Statement with Respect Io the Committee's Question
concerning Charter lnterpretation Misconstrues the Respondent's Obligations
under the Charter

15. In its second auestion the Committee asks the Court to determine
whether thc Tribunal crred on questions of law relating to provisions of the
Charter of the United Nations. Although the Respondent addresses six Charter
provisions in its statement, the United States will confine its comments to the
Respondent's arguments with respect to Articles 101 and 100.

16. This case raises three issues with respect to Article 101. Was resolution
37/126 (IV) bindina on the Reswndent. and was it therefore obliaated under
Article 10l'to appl;it with respect to the Applicant's request? ~haf, under the
circumstances, did that obligation require the Respondent to do? Did the
Resoondent do what was reauired?
15. The first ispucis not disputed; the resolution binds the Respondent, and
is thcrefore a "regulation established by the General Assembly" falling under
Article 101.
18. With respect to the content of the Respondent's obligation, the Tribunal
holds that. in the absence of specific implementing instructions from the

G-~er~l Assemblv or of Staff Ruies orovidine administrative orocedures. il is
up 10 the &cretarY.General to decide how the obligation is k be dissharged
(Judgement. para. XVIII). But the Respondent'5 discretion is not unbounded.
Evcn the Respondent admits thai itwas "of course. obliged 10apply the resolu.
tion in substance" and argues ihat itdid so by "having regard to the interests
of the Oraani~ation". "to the aualities of the staif member". the "need to
recruit staTfon as wide a geograbhical basis as possible", and "to the qualities
of existing staff and the need to secure fresh talent" (Respondent's Statement.
paras. 95 and 96).
19. There is. however. no basis in the uncontroverted facts of the case for the
assertion that ihe es ponde nntfact fulfilled its obligation to give the Appli-
cant's request "every reasonable consideration" "in substance". To the con-

trary. the record clearly indicaies thît at the rimitcon3idered the Applicant's
request in December 1983.thc Rc5pondent beliebed ihat it was legally barred
(rom emoloyina the A~olicant after 26 December 1983absent Soviet ao~robal.
Being undeiih; basicmisapprehension. the Respondent gave no considcration
to the request. Only if the legal bar the Re3pondent ihought existed had. in fact.
existed. could it be oossible to find that no consideration was "reasonable"
under the circumstances.
20. Even under the factual hypothesis advanced by the Respondent, its COMMENTS OF THE UNITED STATES 235

actions would l'ailto meet the standard ot'"c\er). reasonîblc considcrariori". An
excrciscof discrction bascd upon "mistakcof Iüct or lau" ir in\alid IVr. Kcan',
dissent, para. 4 (quoting ~osescu, para. 5)).By taking into acc6unt'"the events
of 10 February and thereafter" (i.e., the Applicant's decision to change his
nationality and the severina of his relations with the Soviet Government), the
esp ponde ntould have committed a mistake of law, as the taking into account
of these factors would have been contrary to Article 100. Under either factual
hypothesis. therefore, the answer is the same: the Respondent failed to accord
toihe ~~ilicant's request "every reasonable consideration", as it was required
to do under resolution 37/126 (IV) and thus under Article 101 of the Charter.

2. ARTICLE100, PARAGRAP 1H

21. In its Statement the Respondent implies that the Court is precluded from
examining ihc qucstion of uhcihcr lis açiions conçtiiurcd rhc rccfipt "of inbtruc-
rions from any govcrnment or from any othcr auihoriiy cxiernal io the Or-
aani~ation" or "reflcitledl on lits1position as international ofiicials rcs~onsihle
only to the 0r~anizati6n"~k. i01, para. 1) because the Tribunal

"found as a fact that: '. .. there has been no allegation, and far less any
evidence, that the Respondent sought instructions from any member
States, or that he had in any manuer let the wishes of a member State
prevail over the interests of the United Nations. ."' (Respondent's State-
ment, para. 75).

The Respondent argues that the Tribunal's acceptance of the assertion that its
actions were not contrarv to Article 100. oaraeraoh 1. constituted a findine of
fact, and that "[sluch a knding of fact dkes nit invaive a question of lawylet
alone a question of law relating to the provisions of the Charter. (R~spondent's
tat te me par,. 105).
22. This effort by the Respondent to portray as an issue of fact a clear ques-
tion of Charter interpretation is a transparent attempt to exclude from the
Court's review a fundamental leeal issue in this case. The Court's mandate is
"ru judge uhether ihç inierprciai'Ln aiiprcd by the ~ribuiialis in contradiction
uith rcquircmcnrr of the provision^ of ihcCharter of rhe Cnircd Naiions" (Mor-
rished, para.61) .o mafier which version of the facts is adopted, whether what
the Respondent did with respect to the Applicant's request was or was no1con-
sistent with the Charter is not an issue of fact, but an issue of law, upon which
the Tribunal ruled and which the Court is thus bound to examine.
23. The United States has set out in detail in its Statement the reasons why
it believes the Tribunal'sfinding that the Respondent's actions were in accord
with Article 100, paragraph 1, is erroneous (US Statement, p. 176, supra).
Nothing in the Respondent's Statement addresses these arguments, and the
United States therefore stands by them. We believe a rebuttable presumption
that Article 100,paragraph 1, has been violated is created when it is shown that
the Respondent ha altered a proposed personnel decision in a manner less
favourable to the interests of the Oraanization after orotests aaainst the
originally-planned action ha\c bccn rccc~\cdfrom a mcmbcr Staic. finle\\ ihir
presumption is in~.orporarcdin the lau pcriaining tu Uniicd Nation, personnel
actions (as it has been in theIAEA's law as a result of the Rosescu decision),
employees victimized by improper pressures will be effectively deprived, inter
alia, for want of access to the evidence, of the ability ta enforce their rights, and
the guarantees of Article 100, paragraph 1, will be emptied of substantive

content.236 APPLICATION FOR REVIEW

24. The Respondent argues in his Statement that the question of whether it
is lenitimate for the Respondent to take in10 account the Aoolicant's intent to
change his nationality wàs not in issue and that the ~ribunaidetermined this to
be so (Respondent's Statement, para. 1141 The Kespondent is mistaken. The

Tribunal did no1hold that these matters "were not in~issuesince orivate leeisla-
tion was to be introduced into the United States Congress (O avoid 'ihese
problems". The "problems" referred to in this passage concerned waiver of
~rivileeesand immunities bv emolovees of the United ~ations who become ner-
kaneni residcnt aliens in the unite;i States. nor uhether the Respondent chd
lcgitimately consider the Applicdnr's intcnt 10 change hi$ nationality. which is
an entirelv seoarate auestion. The Tribunal's ruline with resoect to the latter
issue was-thai "the ~~~licant mus1 necessarily fa& the coniequences for his
actions", of which one was that

"'those who elected to break their ties with [thecountry of which they were
nationals when they entered United Nations service]could no longer claim
to fulfil the conditions governing employment in the United Nations'"
(Judgement, para. XII).

25. This doctrine first appeared in the Fischman case (UNAT Judgement No.
326). which was decided while Yakimetz was before the Tribunal hv a oan~l ~, ~ r~~~~~~
incl'"dingtwo of the members of the ~akimerzpanel. The United States believes
that there is no legallyacceptable basis for the attempt 10relate it to the instant

case. It is, alter all, one thing to recognize that the Secretary-General may
decline to grant permission to waive certain privileges and immunities and quite
another to find an intent 10 chanee nationalitv. or more accuratelv to seek to
change nationality, is relevant to an individual;; suitahility as a ~nfied Nations
employee. Article 100, paragraph 3, establishes three paramount criteria (effi-
cienc..~cornoetence and inteer-tv)..o be em~io..d bv the.Resoondent in makine
personnel decisions. A change in an employee's nationality, much lessan intent
10seek a change, relates to none of the three paramount criteria. The Tribunal
has ruled in the Esrabial case that not even considerations of geographical

distribution may be used to overturn an employment decision reached on the
basis of an assessrnent of an employee's efficiency, competence and integrity.
The same rnust hold true of considerations of nationalitv. which are nowhere
mentioned in the Charter. Such considerations, if permiited to bc rcgarded as
relevant, uould be subversiveof the verynotion 01'an international sivilrervicc.
The conflict beiween firuhiul on the one hand and Fischman/ Yukimerzon the
other cries out for resolution by the Court.

III. COMMENTS OF THE UNITED STATES ON THE STATEMENT SUB-
MITTED BY THE USSR

A. The Statement of the USSR Misconsirues the Issues Raised by the
Committee with Respect to Exercise of the Tribunal's Jurisdiction

26. At paragraph 3 of its Statement. the USSR asserts that the Tribunal
"must itself determine in every specific instance the scope of its jurisdiction, as
is clearly stated in Article 2, paragraph 3, of ifs Statute". The cited paragraph
States that "[iln the event of a dispute as to whether the Tribunal has com-
petence, the matter shall be settled by the decisionof the Tribunal". COMMENTS OF THE UWITED STATES 237

27. In the instant case, however. there is no dispute between the parties over
the compeience of theTribunal, including its compeience to rule on ihc question
of whether a legal bar existed to the further employment of the Applicani by
the Res~ondent aller theexpiry of his fixed-term contraci on 26 December 1983.
Nor is ihere any indication-inihe Judgement that the Tribunal ever considered
that itmight no1 have competence Io rule. The question is, rather, whether.

being competent to rule, did the Tribunal fulfil ifs obligation to exercise its
jurisdistion as spelled Out in Article 2. paragraph 1.of ils Statute The reference
in the Soviet Statement to Article 2. paragraph 3, is iherefore inappropriate and

B. The Statement of the USSR with Respect to the Question Pospd by the Com-

mittee to the Court coneerning Exercise of Jurisdiction 1sInconsistent with the
Nature of Employment Contracts in the United Nations, Misconstrues the
Effecl of Staff Rule 104.12 (b), and Misinterprets the Tribunal's Judgement
with Respect Io the Effect of Change of Nationality on an Employee's Eligibility
for Further Employment

28. The Statement of the USSR asserts that
"in its ludgement theTribunal provided answers to al1legal aspects of the

case. including the question, raised in the Applicant's claim. concerning
the existence of legil impediments to his fÜÏther employment with the
United Nations" (USSR Statement, para. 5).
The Statement goes on in the same paragraph to identify three subissues upon
which, it is asserted. theTribunal adiudicated. and bv so doinp.disposed of the

Applicant's plea regarding the existence of a legal bar IO furtier &nploymcnt.
29. The first of the thrce subissues is wheiher a legal bar existeIO the "cxtcn-
sion ofa one-sear conlract afrer itr ex~iry on 26 December 1983 " (USSR State-
ment, para. 5). The Soviet tat te me arnues that
". . the Tribunal in paragraph IV con~.ludedihat 'ans subsequent change
in the terms of the sesondmenr initially agrçed on. for example, ifs cxten-

sion. obviouslv. .quires the agreement of al1 three parties involved'. It is
therefore clear th31 the absenle of ruch trilatrrsl iigrrcment conrtiturer a
lcgal impedimcnt IOtheekiension oi iheApplicant's lixed term soniract '."
(USSR Statement. para. 6.)
30. The United States submits that this arnument is a non-seouifur. The

trilateral secondment 3rrangemçnt and the hilarPral sontracr of empioymeni are
separate legal entitirs. Analpi\ of one Ca\[\ no light on issuer pcrtaining to the
other. Even accepting arguendo the proposition that the ~pplicant. ~espon-

' Theissuesbeforethe Tribunalin factrelatedonlyto the Applicant'srequestfor con-
siderationfora careerposition.'Extension"(Le..renewal)of hisemploymentona lixed-
termbarir waraddrerredsuosponreby the Tribunal,and isaddressedhereanly because
ithas been raisedonce more bv the USSR.
Thisargumentrufferrfromthe rameconrusion over useof theterm"extension"that
characterizedthe Tribunal's Judgement.See,USStatement. p.168,n. 2, supro. It ir not
the practiceal the United Nationsta 'exiend" fixed-iermconiracts. Thev are. rathcr,
"reriewed".i.e.. a newletterof appointmentisissuedwithrespectto eachsuchconiract,
and eachruchcontractisthusa separatelegalinstrument,unencumberedbyany"special
conditions" that might haveaffectcd itr predecesror(see.UN Staff Rules.AnnexII).238 APPLICATION FOR WVIEW

dent, and Soviet Government were bound by a secondment arrangement until
26 December 1983(but see. US Statement, pp. 178-181, supra), this forms no
b~~ ~ ~~~~~cl~de that that arraneement continued in force afterthat dateorthat
ihe Applicant and the ~ec~ondeni uere obligated io seck the approval of the
Soviet authorities should they hate wished io enter in10a bilateral employment
conrracr on a career bacis takine effect aftcr 26 Decembrr 1983.The Tribunal.

in fact, does not address in its Judgement the issue of whether such approval
would be necessary, whichis preciselythe reason the United States believesthat
the Tribunal failed to exercise its jurisdiction in this regard.
31. The second subissue addressed in the Soviet Statement is whether the
Resoondent was legallv barred from convertina the Applicant from fixed-term
to career status. ~he Soviet Statement assertsthat staff Rule 104.12 (b) bars

sucb a conversion (USSR Statement,para. 7). The United States disagrees. The
rule states only thatthe Applic'anthas no expectancy of conversion arising from
bis service, no matter how well performed, on a fixed-term basis. It does not
state tbat the Respondent could not have converted the Applicant's status
should it have wished to do so.
32. The ihird subijsue raised in the Soviet Siaiement is whether the Krspon-

deni wa\ barred from furiher employment uiih ihe United Nations besause hc
had soueht to chanee his nationalitv. The Soviet Statement imolies that the
~ribunarbeld that anattempt to change nationality constitutes suih a legal bar.
The oooosite is in fact the case. The Tribunal found that the Respondent had
prope;Ïy exercised its discretion to reject the Applicant's request for conversion

to career status '(Judgement, para. XVIII). Had the Tribunal perceived the
Applicant's actions as a legal bar, logicdictates that it could not have so ruled,
as in that case no discretion would have been allowed. This interoretation of the
Judgement is buttressed by the fact that Mr. Ustor in his dissent disagreed
explicitly withthe Tribunal's Judgement on this very point, taking the position
that ". .. the Applicant was in my view not eligible for consideration for a

career appointment", Le., the same view now advanced by the Soviet Union.

C. The "Answer" of the ~oviei Union Io the Question Posed hy the
Cornmittee Io the Court concerning Charter Interpretatinn

33. The second quesiion posed to the Couri by ihe Comniittcc uas whether
ihc Tribunal had erred on auestionc of law relaiinp-.IO orovision\ of the Charter
of the United Nations. 1" supporting the Tribunal's Judgement, the Soviet

Statement simply quotes the relevant provisions of the Charter and United
Nations General Assemblv resolution 37/126 (IV), states that the Tribunal
found that no violationc of ihese instruments had occurred. and asserts in a
compleiely conslusory and unsupported manner ihat the Tribunal was correct
inal1respecis (USSR Siatemeni, pp. 156and 157. supru). The Siarement of the

USSRoffers no independent analysis to wpport the Tribunal's findings, ignore,
the arguments raiscd by the Applicanr in ihic regard. and implies. contrary Io
Article II of iheTribunal's Statute and Article h5ilI of the Siaiuie oi'ihe Court,
that the Tribunal's findings are final and unrevièwable by the Court.

' Thisfindingwasmade withoutsupportinganalysis ofthe facts-which are entirely
10the contrary-and is, in addition. inconsistentwifhthe Tribunal'streatmentof the
sameissuein paragraph XI1 of the Judgement.Whateverits faults,however. itisclear
that this findingcontradictsthe argumentthat the Tribunal foundthat an attempt to
changenationality constitutesa legalbar to furtheremployment. COMMENTS OF THE UNITED STATES 239

34. In the view of the United States. the USSR has said nothins of lezal
substance in its Statement with respect to the Tribunal's interpretatron of fhe
Charter. The Soviet Statements in this regard are therefore not susceptible to
substantive legal comment, and we offer none.

IV. CONCLUSION

35. Noihing inihr Kespondeni's Siatemeni or that of thc USSKhas crtusedilte
IJnited States 10 alter ils viens wiirespect 10 thi, sas Thc same unuillingness
to confront the issues that characterizes the Tribunal's Judgement infects these
documents as well. In the view of the United States these issues are:

(a) What is the basis of the case? If it is that the Respondent believed
it waslegally barred from employing the Aoolicant after 26December 1983
and thercfo;e refused 10 cun;idcr lie ~~~iiiani's request IO be considercd
for such cmployment, u.as ihat belief correct ! If ili, thai the Respondeni
weighed the substantive factors relating to continued employment of the
~~plicant and decided no1 to employ'iiim further, wasth2 exercise of

discretion consistent with the requirements of the Charter?
/bl Who determines whether the Res~ondent comolied with the reauire-
minis of resolution 37/126, the ~ribunal or the ~ei~ondent itself?'
(c) May "every reasonable consideration" include consideration of the
obiections of the Soviet Government to the further emolovment on a career
baiis of a person who has severed al1his relations wiih that Government?
If the answer is affirmative, how can that answer be squared with Article
100, paragraph 1, of the Charter?
(d) Does a change in nationality, more accurately in the instant case an

intention to seek a change, disable a member of the United Nations
Secretariat from further employment with the Organization or otherwise
provide legitimate grounds to deny him further employment? If so, how
is this to be reconciled with Article 100, paragraph 3, of the Charter?
/el How is the Tribunal's Judeement to be reconciled with the notion of
théSecretariat of the United Nations as an international civil service
dedicated uniauely to the best interests of the Organization, and protected
from undue hfluence from powerful memher States by a vigilant and
energetic Secretary-General?
/f)If the risk of a negative reaction bv a powerful member State aives

risëto a legitimate deniaÏ of employmeni in ihe interests of the ~rgaiiza-
tion, is this equally true if the member in question is small and weak?
36. The United States urges the Court to consider these issuesand to rule on
them forthriahtlv. Onlv then can the riehts of the Ap~licant as an international

civil servantie ipheld, the interests of his fellow siaff members be protected,
and the integrity of the United Nations be preserved.