INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt. The Hague
Telex 32323
unofficial
for rmmediatsrslease
No. 87/12
27 May 1987
The Court gi~res its Advisory Opinion on an Application
for Review of Judgement No. 333 of the United Nations
Administrative Tribunal
The following infor:mation is made available to the press by the
Registry of the 1nternat:ional Court of Justice:
Today, 27 May 1987, the International Court of Justice delivered its
Advisory Opinion in the case concerning the Application for Review of
Judgement No. 333 of the United Nations Administrative Tribunal.
The Court decided t:hat in Judgement No. 333 the United Nations
Administrative Tribunal did not fail to exercise jurisdiction vested in
it and did not err on any question of law relating to provisions of the
Charter.
The questions submitted to the Court by the Committee on
Applications for Review of Administrative Tribunal Judgements were as
follows:
"(1) In its Judgement No. 333 of 8 June 1984 (AT/DEc/~~~),
did the United Nations Administrative Tribunal fail to exercise
jurisdiction 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 19831
(2) Did the IJnited Nations Administrative Tribunal, in
the same Judgement No. 333, err on questions of law relating to
provisions of the Charter of the United Nations?"
The Court decided as follows:
A. Unanimously, the Court decided to comply with the tequest for
an advisory opinion. B. Unanimously, the Court was of the opinion that the
Uni ted Nations Admini strative Tribunal, in i ts Judgement
No. 333, did not fail to exercise jurisdiction 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 fixed-term contract on
26 December 1983.
C. By eleven votes to three, the Court was of the opinion that
the United Nations Administrative Tribunal, in the same
Judgement No. 333, did not err on any question of law
relating to the provisions of the Charter of the
United Nations.
In Favour: President Nagendra Singh; Vice-President Mbaye;
Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara,
Bedjaoui, Ni Zhengyu, Tarassov.
Against: Judges Schwebel, Sir Robert Jennings, Evensen.
The Court was composed as follows: President Nagendra Singh;
Vice-President Mbaye; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara,
Schwebel, Sir Robert Jennings, Bedjaoui, Ni Zhengyu, Evensen and Tarassov.
Judge Lachs appended a declaration to the Advisory Opinion.
Judges Elias, Oda and Ago appended separate opinions to the Advisory
Opini on.
Judges Schwebel, Sir Robert Jennings and Evensen appended dissenting
opinions to the Advi sory Opinion.
In tlieir opinions the judges concerned state and explain the
positions they adopted in regard to certain points dealt with in the
Advisory Opinion (for a brief survey of these opinions, see Annex hereto).
The printed text of the Advisory Opinion and of the separate and
dissenting opinions will become available in a few weeks' time (orders
and enquiries should be addressed to the Distribution and Sales Section,
Office of the United Nations, 1211 Geneva, 10; the Sales Section,
United Nations, New York, N.Y. 10017; or any appropriately specialized
bookshop) .
An analysis of the Advisosy Opinion is given below: this has been
prepared by the Registry for the use of the press and in no way involves
the' responsi bi lity of the Court. It cannot be quoted agai nst the text of
the Opinion, of which it does not constltute an interpretation. --alysis of the Advisory Opinion
1. Review of the procee!dings and summary of facts (paras. 1-22)
The Court outlines; the successive stages of the proceedings before
it (paras. 1-91 and sunimarizes the facts of the case as they emerge from
the reasons adduced in the Judgesient of 8 July 1984 in the case
concerning Yakimetz v. the Secretary-General of the United Nations, and
as set out in the documents submitted to the Tribunal (paras. 10-18).
The facts essential for an understanding of the decision reached by the
Court are as follows:
Mr. Vladimir Victorovich Yakimetz (referred to in the Opinion as
"the Applicant") was given a five-year appointment (1977-1982) as Reviser
in the Russian Translation Service of the United Nations. In 1981, he
was transferred as Programme Officer to the Programme Planning and
Co-ordination Office. At the end of 1982, his appointment was extended
for one year, expiring on 26 December 1983, and his letter of appointment
stated that he was "on secondment from the Government of the Union of
Soviet Socialist ~epublics". (Para. 10.)
On 8 February 1983, the Assistant Secretary-General for Programme
Planning and Co-ordination informed the Applicant that it was his
intention to request an extension of his contract after the current
contract expired on 26 December 1983. On 9 February 1983, the Applicant
applied for asylum in the United States of America; on 10 February he
informed the Permanent Representative of the USSR to the United Nations
of his action, and stated that he was resigning from his positions in the
Soviet Government. On the same day, he notified the Secretary-General of
his intention to acquir'e permanent resident status in the United States
of America. (Fara. 11.1
On 25 October 1983 the Applicant addressed a memorandum to the
Assistant Secretary-Gen~eral for Programme Planning and Co-ordination, in
which he expressed the liiope tliat it would be found possible on the basis
of his performance to rcxommend a further extension of his contract with
the United Nations, "or even better a career appointment". On
23 November 1983, the Dclputy Chief of Staff Services informed the
Applicant by letter "upon instruction by the Office of the
Secretary-General" that it waç not the intêntion of the Organization to
extend his fixed-term appointment beyond its expiration date, i.e.,
26 December 1983. On 29 November, the Applicant protested against the
decision and referred to bis acquired rights under General Assembly
resolution 371126, IV, paragraph 5, which provjdes that "that staff
members on fixed-term appointments upon completion of five years of
continuing good service shall be given every reasonable consideration for
a career appointment." (Para. 13.1
On 13 December, the Applicant requested the Secretary-General to
review the decision not to extend his appointment beyond its expiration
date, and again invoked his rights under General Assembly
resolution 371126. In a Lctter dated 21 December 1983, the Assistant
Secretary-Genernl f~r Personnel Services replied to the Applicant's
letter of 13 December and advised him that, for the reasons stated, the
Secretnry-Gencrnl was maintajning the declsion communicated in the letter
of 23 November 1983. (lJarii- 14- ) On 6 January 1984, the Applicant filed the application to the
United Nations Administrative Tribunal in respect of which Judgement
No. 333 was given. (Para. 14.)
The Applicant then made a further application for United Nations
employment. (para. 15.)
The Court notes that, at a press conference on 4 January 1984, the
spokesman for the Secretary-General said that "if Mr. Yakimetz chose to
apply for a position ... he would be given every consideration along with
other applicants for any position". It also noted that the
New York Times of the same day carried an article dealing with the
non-renewal of the Applicant's contract, in which the Executive Assistant
to the Secretary-General was quoted as having said that "to have the
contract extended ... Soviet consent was essential. But, he said, 'the
Soviets refused'." Commenting on that report in a letter to the
New York Times dated 24 January 1984, the Under-Secretary-General for
Administration and Management pointed out that "a person who is on loan
returns to his government unless that government agrees otherwise".
(Para. 16. )
Followi ng thi s summary of the f acts, the Opinion presents the
principal contentions of the Applicant and of the Respondent as
sumrnarized by the Tribunal, and lists the legal issues which the Tribunal
stated were involved in the case (paras. 17 to 19). It then gives a
brief analysis of Judgement No. 333, (paras. 20 and 211, to which it
returns subsequently in more detail.
II. The competence of the Court to give an advisory opinion, and the
propriety of doing so (paras. 23 to 27)
The Court recalls that its competence to dellver an advisory opinion
at the request of the Committee on Applications for review of
Admini st rative Tribunal Judgements i s derived f rom several provi si ons:
Article 11, paragraphs 1 and 2, of the Statute of the Tribunal,
Article 96 of the Charter and Article 65, paragraph 1, of the Statute of
the Court. It has already had occasion to examine the question of its
competence under these provisions, whether the request for opinion W
originated, as in the present case, from an application by a staff member
(~pilication for ~eviei of Judgement No. 158 of the ~nited Nations
Administrative Tribunal, Fasla case, 1973) or from an application by a
member State (Application for Review of Judgement No. 273 of the
Uni ted Nations Admini strative Tribunal, Mortished case, 1982). In both
cases, it concluded that it possessed competence. In the present case,
its view is that the questions addressed to it are clearly legal
questions arising within the context of the Committee's activities.
(Paras. 23 and 24.)
As for the propriety of giving an opinion, it is clearly
established, according to the Court, that the power conferred by
Article 65 of the Statute is of a djçcretionary character, and also that
the reply of the Court to a request for an advisory opinion reflects its
participation in the activities of the United Nations and, in principle,should not be refused. In the present case, it considers in any event
that there is clear legal justification for replying to the two questions
put to it by the Committee. It recalls that, In its 1973 Opinion, it
subjected the machinery established by Article 11 of
the Statute of the
Admini strative Tri bunad to cri ti cal examinati on. While renewing some of
its reservations as to the procedure established by that Article, the
Court, anxious to secuire the judl cial protection of of ficials, concludes
that it should give an advisory opinion in the case. (Paras. 25 and 26.)
In its Advisory Clpinions of 1973 and 1982, the Court established the
principle that ïts rol,e in review proceedings was not "to retry the case
and to attempt to subçtitute Its own opinion on the merits for that of
the Tribunal". That plrinciple must continue to guide it in the present
case. In particular, i t should not express a view or the correctness of
otherwise of any finding of the Tribunal, unless it is necessary to do so
in order to reply to the questions put to It. (Para. 27.)
111. First question (paras. 28-58)
The first question put to the Court is worded as follows:
"1. In its Judgement No. 333 of 8 June 1984 (AT/D~c/333),
dld the lJni ted Nations Administrative Tribunal f ail to exercise
jurisdiction vested in it by not responding to the question
whether a legal impediment exi çted to the f urtherl employment
in the United Nations of the Appll cant after the expi ry of hi s
contract on 26 December 19831
In hi s application to the Admini stratlve Tribunal, the Applicant
contended that "there was no legal bar to his eligibility for a new
fixed-term contract" or to a probationary appointment leading to a career
appointment. He claimed to have a "legally and morally justifiable
expectancy of continued U.N. employment, and a right to reasonable
consideration for a career appointment". Before the Tribunal, the
Secretary-General stated that there was no legal impediment to the grant
of a career appointment, and asserted that the contested decision had
been taken after consideration of al1 the circumstances in the case.
This, he contended, constituted "reasonable consideration" wlthin the
meaning of the General Assembly resolution 37/126 (see above, p. 41,
given that the Applicant had no "right" to "favourable consideration for
a career appointment". (Paras. 29 and 30.)
l~he Qpj nion iiote,s a di screpancy between the Engli sh and French
texts, pointirig out that the words "obstacle juridique au renouvellement
de l'engagem-nt" aypearing in the French version include both a case of
prolongation of an existing contract, and that of an appointment distinct
from the pre-exi sting crontractual relati onship (para. 28). Before the Tribunal, the Applicant made no reference to the
recognition by the Secretary-General that there was no legal impediment,
but took issue with the statement that "reasonable consideration" had
been given. He argued that if the Secretary-General was under the
impression, as the letter of 21 December 1983 and the statements made by
certain senior officials indicated (see above, pp. 4 and 51, that any
extension of the Applicant's appointment without the consent of the
government which had seconded him was beyond the scope of his
discretionary power, this would have prevented him from giving every
reasonable consideration to a career appointment. The Applicant
therefore requested the Tribunal to find that the view which actually was
held at that time - that a secondment did .give rise to a legal impediment
to any further employment - was incorrect, so that no "consideration" on
that basis could be "reasonable" within the meaning of resolution 371126,
and requested it to find that there was no legal impediment to his
further employment after the expiry of his contract on 26 December 1983.
The Applicant held that the Tribunal had not responded to his plea on
that point, and the Court is now requested to state whether in that
regard it failed to exercise jurisdiction. (Paras. 31 and 32.)
The Court considers that the Tribunal's handling of the question of
the "legal impediment" is not entirely clear. The reason for this,
according to the Court, is that it was obliged to deal first with other
contentions set out by the Applicant. As a matter of logic, the Tribunal
dealt first with the question whether the Applicant had a "justifiable
expectancy of continued United Nations employment" - in other words,
whether there was a "legal expectancy" in that connection, since if such
an expectancy existed the Secretary-General would have been obliged to
provide continuing employment to the Applicant within the
United Nations. The Tribunal found that there was no legal expectancy.
On the one hand, the consent of the national government concerned would
have been required for the renewal of the previous contract, which was a
secondment contract, and on the other hand, according to Staff
Rule 104.12 (b), fixed term appointments carry no expectancy of renewal
or of conversion to any other type of appointment. The Tribunal also
held that the Secretary-General had given reasonable consideration to the 1
Applicant's case, pursuant to section IV, paragraph 5, of
General Assembly resolution 371126, but without saying so explicitly.
(Paras. 33 to 37.)
An analysis of the judgement therefore shows that, for the Tribunal,
there could be no legal expectancy, but neither was there any legal
impediment to "reasonable consideration" being given to an application
for a career appointment. According to the Tribunal there would have
been no legal impediment to such an appointment if the Secretary-General,
in the exercise of his discretion, had seen fit to offer one.
(Paras. 38-41.)
The Court notes that the real complaint of the Applicant against the
Tribunal was, rather than failing to respond to the question whether
there was a legal impediment to his further employrnent, that it paid
insufficient attention to the indications that the Secretary-General had
thought that there a legal impediment, so that the "reasonable
consideration" either never took place or was vitiated by a basic
assumption - that there was an impediment - which was later conceded to
be incorrect. Mere the Court reca1l.s that in appropriate cases it isentitled to look behind the strict terms of the question as presented to
it (Interprctation of the Agreement of 25 March 1951 between- the WHOand
Egypt, i980), provided its reformulation remains within the limits of the
powers of the requesting body. In the present case, without going beyond
the limits of the ground of objection contemplated by Article 11 of the
Tribunal's Statute and upheld by the Cornmittee (failure to exercise
jurisdiction), it is open to the Court to redefine the point on which it
is asserted that the Tribunal failed to exercise its jurisdiction, if
this will enable it to give guidance on the legal question really in
issue. It thus seems to the Court essential to examine not only whether
the Tribunal failed to examine the question of the legal impediment to
the Applicant" further employment - as it is requested to do - but also
whether the Tribunal omitted to examine the Secretary-General's belief in
that regard, and the possible impact of that belief on his ability to
give "every reasonable consideration" to a career appointment. If it can
be established in thls case with sufficient certainty that the Tribunal
addressed its mind to the matters on which the Applicant's contentions
were based, there was no failure to exercise jurisdiction in that
respect, whatever may be thought of the conclusion it reached in the
light of the information available to It. (Paras. 42 to 47.)
The Court refers first to the actual text of the Tribunal's
Judgement, which did not deal specifically with the question of the
existence of a "legal impediment". It does not however conclude from
this that it failed to address its mind to this question. What the
Judgement states is that, in the Tribunal's view, the Secretary-General
could take the decision to offer the Applicant a career appointment, but
was not bound to do so. It follows from this that the Tribunal was
clearly deciding, though by implication, that there was no absolute legal
impediment which had suipposedly inspired the decision not to give the
Applicant a career appointment. In so doing the Tribunal therefore
responded to the Applicant's plea that it should be adjudged that there
was no legal impediment to the continuation of his service. (para. 48.)
The Court then refers to a statement by the President of the
Administrative Tribunal, Mr. Ustor, appended to the Judgement, and to the
dissenting opinion of another member of the Tribunal, the Vice-Presidenr
Mr. Kean. It seems to the Court impossible to conclude that the Tribunal
did not address its mind to the lssues which were specifically mentioned
by Mr. Ustor and Mr. Kean as the grounds for their disagreement with part
of the judgement relating to the "iegal impediment" and to the
"reasonable consideration". The Tribunal, as a body represented by the
majority which voted in favour of the Judgement, must have drawn its own
conclusions on these issues, even if these conclusions were not spelt out
as clearly in the Judgement as they ought to have been. (Paras. 49
to 57.)
As to the question whether "every reasonable consideration" was in
fact given, the Tribunal decided this in the affirmative. ïhe Court,
considering that it is not entitled to substitute its own opinion for
that of the Tribunal on the merits of the case, does not find it possible
to uphold the contention that the Secretary-Generai did not give "every
rcasonable consideratton" to the Applicant's case, in implementation of
resolution 371126, becciuse he Eelieved that there was a "legal
impedirnent" . The Court, after due analysis of the text of Judgement No. 333 of
the Tribunal, considers that the Tribunal did not fail to exercise
jurisdiction 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.
Accordingly, the answer to the first question put to it by the Committee
must be in the negative. (Para. 58.)
IV. Second question (paras. 59 to 96)
The question is worded as follows:
"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?"
Concerning the nature of its task, the Court recalls that the
interpretation, in general, of Staff Regulations and Rules is not its W'
business, but that it is the business of the Court to judge whether there
is a contradiction between a particular interpretation or application of
them by the Tribunal and any of the provisions of the Charter of the
United Nations. It is also open to the Court to judge whether there is
any contradiction between the Tribunal's interpretation of any other
relevant texts such as, in this case, General Assembly resolution 37/126,
and any of the provisions of the Charter. (Paras. 59 to 61.)
The first provision of the Charter in respect of which the Applicant
contends that the Tribunal made an error of law is Article 101,
paragraph 1, which provides that "The staff [of the Secretariat] shall be
appointed by the Secretary-General under regulations established by the
General Assembly". More specifically, the Applicant's complaint bears
upon the role which ought to have been played by the Appointment and
Promotion Board, but which was unable to play because no proposa1 ever
reached it, with the result that it never had a chance to consider his
case. The Applicant presented this as one element of the denial of
"reasonable consideration" of his case. The Tribunal found that it was
"left to the Respondent to decide how every reasonable consideration for W
a career appointment should be given to a staff member" and that the
Respondent tiad "the sole authority to decide what constituted 'reasonable
consideration'". On the basis of this passage the Applicant contends
that this is a question of law relating to Article 101, paragraph 1, of
the Charter. (Paras. 62 to 69.)
The Court interprets the above-quoted passage as meaning that it was
for the Secretary-General to decide what process constituted "reasonable
consideration", and not that the only test of reasonableness was what the
Secretary-General thought to be reasonable. Indeed the Tribunal has
nowhere stated that the Secretary-General possesses unfettered
discretion. Nevertheless, the Tribunal did accept as sufficient a
statement by the Secretary-General that the "reasonable consideration"
required by resolution 37/126 had been given. It did not require the
Secretary-General to furnish any details of when and how it was given,
let alone calling for evidence to that effect. Because the texts do not
specify which procedures are to be followed in such a case, the Court is
unable to regard this interpretation as in contradiction with
Article 101, paragraph 1, of the Charter. (Paras. 70 to 73.) The Secretary-General has also asserted that the decision taken in
this case was "legitimately motivated by the Secretary-General's
perception of the inteirests of the Organization to which he properly gave
precedence over competing interests". The Tribunal need not have
accepted this; it might have regarded the statements quoted by the
Applicant as evidence tshat the problem of secondment and the lack of
government consent had been allowed to dominate more than the
Secretary-General was ready to admit. That was not however the view it
took. It found that the Secretary-General "exercised his discretion
properly". Whether or not this was an error of judgment on the
Tribunal's part, what is certain is that it was not an error on a
question of law relating to Article 101, paragraph 1, of the Charter.
The essential point is that the Tribunal did not abandon al1 claim to
test the exercise by the Secretary-General of his discretionary power
against the requirernents of the Charter. On the contrary, it re-affirmed
the need to check any "arbitrary or capricious exercise" of this power.
(Paras. 74 and 75.)
The Applicant clajtms that the Tribunal committed an error of law
relating to Article 100, paragraph 1, of the Charter, which provides:
"In the performance of their duties the Secretary-General
and the staff shaltl not seek or receive instructions from any
government or frorn any other authority external to the
Organization. They shall refrain from any action which might
reflect on their position as international officials
responsible only t:o the Organization."
The Applicant does not allege that in refusing him further
employment the Secretary-General was merely carrying out the instructions
of a government, but considers that the statements made by senior
(pp. 4 and 5) indicated that the
officials as mentioned above
Secretary-General believed that further employment was impossible without
the consent of the App:Licantls government - which has been shown to be
untrue - and that the Tribunal concluded that this was indeed the belief
of the Secretary-General. The Court does not find it possible to uphold
this contention, since it does not consider the Tribunal to have reached
that conclusion. (Paras. 76 to 78.)
The Applicant alleges a failure to observe Article 101, paragraph 3,
of the Charter, which provides :
"The paramount consideration in the employment of the
staff and in the determination of the conditions of service
shall be the necessity of securing the highest standards of
efficiency, cornpetence, and integrity. Due regard shall be
paid to the imporitance of recruiting the staff on as wide a
geographical basis as possible." He asserts that the Tribunal's Judgement failed to weigh the mandate
of that Article against other factors, and that it made merit subservient
to other considerations. Xt is clear that the expression "the paramount
considerati on" i s not synonymous with "the sole consideration", and i t i s
for the Secretary-General to balance the various considerations. It was
not for the Tribunal, nor is it for the Court, to substitute its own
appreciation of the problem for his. The Secretary-General's decision
cannot be said to have failed to respect the "paramount" character of the
considerations mentioned in Article 101, paragraph 3, simply because he
took into account al1 the circumstances of the case in order to give effect
to the interests of the Organization. (Paras. 79 to 82.)
In taking hi s deci si on, the Secretary-General had taken account of
"the events of 10 February 1983" (the date of the Applicant's communication
informlng the Soviet Government that he was resigning from its service)
"and thereafter". The Tribunal examined this matter-in the context of the
new contractual relationship "which, according to the Applicant, had been
created between himself and the United Nations on that date". For his
part, the Secretary-General denied that "a continuing relationship with a
national government is a contractual obligation of any fixed-term staff
member - seconded or not" and that the Applicant's continued employment
did not imply that a new contractual relationship had been created. The
Tribunal comments on the signi f i cance of nati onal ti es, and expresses
disapproval of the Secretary-General's above-quoted remarks. It does not
apparently consider them consistent with the ideas found shortly beforehand
in Judgement No. 326 (Fischman) which referred to a "widely-held belief"
expressed in a report to the Flfth Committee of the General Assembly, to
the effect that staff members who break their ties with their home
countries can no longer claim to f ulfi 1 the condi tions governing employment
in the United Nations. The Tribunal adds that tus position must continue
to provide an essential guidance in this natter. The Court here observes
that this "widely-held belief" amounts to the views expressed by some
delegates to the Fifth Committee in 1953 at the Eighth Session of the
General Assembly, and never materialized in an Assembly resolution.
(Paras. 83-85.)
The Court also notes that the relevant passage jn Judgement No. 333 is
not essential to the reasoning of the decision, but that the Court has a d
duty to point out any error "on a question of law relating to the
provisions of the Charter of the United Nations" whether or not such error
affected the disposa1 of the case. However, having considered the relevant
passage of the Judgment, (para. XII), the Court is unable to find that the
Tribunal there committed an error of law "relating to the provisions of the
Charter". For the Secretary-General, the change of nationality was an act
having no specific legal or administrative consequences. The Tribunal
upheld the Secretary-General's main contention, but at the same time
pointed out that according to one view, the change of nationality was not
necessarily such an act, but one which in some circumstances may adversely
effect the interests of the United Nations. This is very far £rom saying
that a change or attempted change of nationality may be treated as a factor
outweighing the "paramount consideration" de£ ined by Article 101,
paragraph 3, of the Charter; this is what the Applicant accuses the
Secretary-General of having done, but the Tribunal dld not agree with him,
sjnce it established that "reasonable consideration" had taken place.
(Paras. 86 to 92) The Applicant asserts that the Tribunal erred on a question of law
relating to Article 8 of the Charter, which is worded as follows:
"The United Nations shall place no restrictions on the
eligibili ty of men and women to participate in any capaci ty and
under conditions of equality in its principal and subsidiary
organs .11
The Applicant propounds a novel view of that Article, that it
prohibits "any restriction on the eligibility of any person". The Court
explains why it is noit called upon to deal with this contention, so that
Article 8, even in the wide interpretation contended for by the
Applicant, has no relevance whatever. (Para. 93.)
The Applicant asserts that the Tribunal erred on a question of law
relating to Article 2, paragraph 1, of the Charter, namely: "The
Organization is based on the principle of the sovereign equali ty of al1
its Members", coupled with Article 100, paragraph 2:
"2. Each Meuiber of the United Nations undertakes to
respect the excliisively international character of the
responsibilities of the Secretary-General and the staff and not
to seek to influence them in the discharge of their
responsi bi lities. "
The complaint here examined appears to be that a certain government
brought pressure to bear on the Secretary-General contrary to
Article 100, paragraph 2, of the Charter. In that event, even if there
had been evidence (whiich there was not) that a member State had behaved
in violation of that Article of the Charter, the Tribunal would not have
been justified in making any finding in that respect, and could not
therefore be criticised for not doing so.
The Court can therefore see no
possibility of an error of law by the Tribunal relating to Article 2 and
Article 100, paragraph 2, of the Charter. (Paras. 94 to 96.)
In respect of the second question put to it in this case, the Court
concludes that the Tribunal, in its Judgement No. 333, did not err on any
question of Law relati~ng to the provisions of the Charter. The reply to
that question also must therefore be in the negative. (Para. 96.)
The complete text: of the operative paragraph (para. 97) will be
f ound below :
THE COUKT,
Uecides to comply with the request for an advisory opinion; 1s of the opinion
(1)with regard to Question 1,
Unanimously
That the United Nations Administrative Tribunal, in its Judgement
No. 333 of 8 June 1984 (AT/DEc/~~~), did not fail to exercise
jurisdiction 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 fixed-term contract on
26 December 1983;
(2) with regard to Question II,
By eleven votes to three,
-hat the United Nations Administrative Tribunal, in the same
Judgement No. 333, did not err on any question of law relating to the
provisions of the Charter of the United Nations.
IN FAVOUR: President Nagendra Singh; Vice-President Mbaye,
Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara,
Bedjaoui, Ni and Tarassov
AGAINST: Judges Schwebel, Sir Robert Jennings and Evensen. Annex to Press Communiqué No. 87/12
Summary of declaration, opinions and dissenting opinions
appended to Advisory Opinion
Declaration of Judge Lachs:
-
Judge Lachs recalls that when in 1973 the Court first had occasion to
give an Advisory Opinion. concerning a judgement of the United Nations
Administrative Tribunal, he appended as President of the Court a declaration
expressing the hope that new procedures would be introduced so as to improve
and harmonize the administrative protection offered staff members of
international organizations. Note was taken of his remarks in the
General Assembly and the International Civil Service Commission, so that steps
were taken towards harmonizing the procedures of the Administrative Tribunals
of the United Nations and the International Labour Organisation and the
eventual establishment of a single tribunal to cover al1 staff in the
United Nations family. After expressing gratification that the remarks of a
Member of the Court should have begun to bear fruit in this way, Judge Lachs
utters the hope that this year the General Assembly will cease postponing
examination of the Secretary-General's latest report on the subject and will
take some concrete steps towards the envisaged goal.
Separate opinion of Judge Elias:
In his separate opinion, Judge Elias urges the General Assembly to
reconsider the system of referring Administrative Tribunal cases to the
Court for review. After examining the texts and the previous cases of
this kind, he emphasizes the need for a flexible procedure to enable the
Court to raise al1 legal issues considered relevant and necessary for the
proper disposa1 of the problem before it. He outlines a possible system
comprising a Tribunal of First Instance and the Administrative Tribunal
Sitting as a court of appeal, which would entai1 a recast of the present
Statute of the Administrative Tribunal. Judge Elias also comments on the
Court's power in advisory cases to determine the real meaning of the
questions it has to answer, and on the problems raised in the case as to
"reasonable consideration" under General Assembly resolution 371126,
secondment, and the discretion to be exercised by the Secretary-General
in matters of this kind.
Separate opinion of Judge Oda:
Judge Oda thinks that question 1 has been erroneously based in the
light of the ambivalent provenance of the drafting of the question in the
Committee on Appli.cations. If the United Nations Administrative Tribunal
did not respond to "the question whether a legal impediment existed to
further employment ..." to Mr. Yakimetz's further employment in the
United Nations, this did not appear to him to be relevant to the issue of
whether the Tribunal failed to exercise jurisdiction.
With.. . With regard to question 2, Judge Oda thinks that on the issue of
whether the Tribunal erred on a question of law relating to the
provisions of the United Nations Charter, the present Court is expected,
in the light of the process of amending the Tribunal's Statute in 1955,
to function as an appellate court vis-à-vis the Tribunal and the Court
should have examined the merits not only of the Judgement as such but
also of the decision of the Secretary-General not to continue
Mr. Yakimetz's contract. From this point of view Judge Oda holds that,
in view of the Staff Rules and the relevant General Assembly resolutions,
Mr. Yakimetz did not have a legal expectancy for further service with the
United Nations towards the end of 1983 at the expiry of his contract,
while the uncertainties of his status, caused by his application for
asylum in the United States and his alleged resignation from any pst in
the Soviet Government in February 1983, could legitimately have been a
factor considered by the Secretary-General in exercising his discretion
regarding the employment of United Nations staff. Judge Oda states that
the Tribunal did not err on any point of law relating to the provisions
of the United Nations Charter in so far as the Tribunal did in fact
uphold the decision of the Secretary-General which can be justified in
the light of the latitude given to him in this respect.
Separate opinion of Judge Ago:
Judge Ago explains in his separate opinion why, despite certain
reservations, he did not dissociate himself from the negative answers
given by the Court to both the first and the second questions. He states
the reasons for the relative dissatisfaction he feels in this case, and
on each occasion when the Court is called upon to give an advisory
opinion in the context of proceedings for review of a decision of an
Administrative Tribunal. While recognizing the necessity in principle,
of a review procedure, he does not believe that the existing system is
the most appropriate one for the particular ends in view. This system
relies upon a committee of which the extremely broad composition, and the
type of procedure followed do not correspond very closely to those of a
body entrusted with judicial, or at least quasi-judicial functions. Its
competence is moreover confined to certain clearly-defined legal aspects,
with the result that the judgements of the Administrative Tribunal are
ultimately beyond the reach of any genuine judicial review, not only as
regards their legal aspects but also as regards their factual aspects,
which are often of great importance. It cannot therefore be claimed that
the existing system fully safeguards both the overriding interests of the
United Nations as an organization and the legitimate claims at law of its
staff members.
Judge Ago takes the view that the only remedy for this situation
would be the intraduction of a second-tier administrative court with
competence to review the decisions of the first-tier court in al1 their
legal and factual aspects. This second-tier court could exercise
jurisdiction with regard to al1 the existing administrative tribunals,
and thus achieve the unified jurisdiction which has proved difficult to
create at the lower level.
Dissenting.. .Dissenting opinion of Judge Schwebel:
In dissenting from the Court's opinion, Judge Schwebel disclaimed
the Court's position th.at its proper role in this class of case is not to
substitute its own opin.ion on the merits for that of the Administrative
Tribunal. On the contrary, the United Nations General Assembly, in
investing the Court with the authority to review judgements of the
Administrative Tribunal on the ground of error of law relating to
provisions of the United Nations Charter, had intended that the Court
should determine the merits of the case, and do so with binding force.
The General Assembly had empowered the Court to act as the final
authority on interpretation of the Charter and of staff regulations based
thereon. One such regulation - enacted by General Assembly
resolution 371126, IV, paragraph 5 - was precisely in issue in this case.
By the terms of that regulation, the Secretary-General was bound to
have given Mr. Yakimetz "every reasonable consideration" for a career
appointment. In fact, Mr. Yakimetz was given no such consideration. The
terms of the Secretary-General's correspondence with Mr. Yakimetz
demonstrate that the Secretary-General took the position at the operative
time that Mr. Yakimetz's candidacy for a career appointment could not be
considered because his contract "was concluded on the basis of a
secondment from ... national civil service," accordingly having "no
expectancy ... of conversion to any other type of appointment". Thus
Mr. Yakimetz's name could not be forwarded "'for reasonable consideration
for career appointment '". In Judge Schwebel's view, the inference which
the Administrative Tribunal purports to find in this correspondence
supporting its conclusi'on that the Secretary-General nevertheless did
give Mr. Yakimetz's candidacy every reasonable consideration is
fanciful.
Two surrounding circumstances empbasize how insupportable the
Administrative Tribunal's conclusion is. First, shortly after
Mr. Yakimetz resigned his positions with the Soviet Government, the
Secretary-General barreid him from entering United Nations premises. It
is difficult to believe that, at one and the same time, during a period
for al1 of which Mr. Ya'klmetz remained barred from his office and the
United Nations corridoris and cafeteria, he was being given every
reasonable consideration for a career appointment at the end of the
period which he was debarred from serving out on United Nations
premises.
The second factor is that the Secretary-General failed to
acknowledge, let alone act upon, the application for a permanent
appointment which Mr. Yi3kimetz submitted on 9 January 1984, days after
That lack of reaction
the expiration of his flxed-term appointment.
suggests that no consideration was given to liis application. If there is
another explanation of the Secretary-General's failure to respond, it has
not been forthcoming.
The resultant erroirs of law are three:
1. The Secretary-Gtrneral was bound to give Mr. Yakimetz's career
appointment "every reasonable consideration" pursuant to a General
Assembly regulation binding upon him, enacted in pursuance of the
Assembly's.. .Assembly's authority providing that the staff shall be appointed "under
regulations established by the General Assembly" (Art. 101, para. 1). He
did not, but the Tribunal erred in finding - without factual basis - that
he did. By not requiring the Secretary-General to act in accordance with
a regulation, the Tribunal committed an error of law relating to a
Charter provision.
2. The Administrative Tribunal indicated that "the question of his
suitability as an international civil servant" was raised by
Mr. Yakimetz's attempted change of nationality. It held that "essential
guidance" is provided by the "widely held belief" expressed in a United
Nations committee that international officials who elect "to break their
ties with [their] country could no longer claim to fulfil the conditions
governing employment in the United Nations". However, Article 101,
paragraph 3, of the Charter provides that the paramount consideration in
the employment of staff shall be securing the highest standards of
efficiency, competence and integrity. Nationality is not a Charter
criterion. The Tribunal's holding that Mr. Yakimetz's attempted change
of nationality put into question his suitability for continued United -
Nations service transgressed a Charter provision, since it invests
nationality with an essentiality or paramountcy which conflicts with the
terms of Article 101, paragraph 3. Beliefs expressed in United Nations
committees are not sources of law; still less may they derogate from the
terms of the Charter.
3. The Secretary-General acted in the apparent conviction that
Mr. Yakimetz could not be considered for a career appointment in the
absence of the consent of the Soviet Government, and thereby gave such
consent a determinative weight. He accordingly failed to fulfil his
obligation under Article 100, paragraph 1, of the Charter to "refrain
from any actlon which might reflect" on his position as an international
officia1 "responsible only to the Organization" because, in effect, he
ceded responsibility in this respect to a "government ... or authority
external to the Organization". The failure of the Administrative
Tribunal to assign this error constitutes an error of law relating to a
Charter provision.
Dissenting opinion of Judge Sir Robert Jennings:
Judge Sir Robert Jennings, in his dissenting opinion, was of the
view that the question really in issue in the case was whether the
Tribunai was right in holding that the Secretary-General had given every
reasonable consideration to Mr. Yakimetz's application for a career
appolntment with the United Nations, as the Secretary-General agreed he
was bound to do under General Assembly resolution 371126, IV,
paragraph 5.
As to the first question asked of the Court for its advisory
opinion, Judge Jennings was content to agree, or at least not to
disagree, with the majority opinion that the Tribunal had not failed to
exercise its jurisdiction over whether there was any legal impediment to
Mr. Yakimetz's appointment; this, however, for the reason that different
views on so abstract and conceptual a problem might be held without
necessary commital one way or the other to the answer to be given to the
question the Court was really called upon to decide. On the second ques'tion for the Court's opinion, which directly
raised the central issue of the case, Sir Robert felt bound to dissent
because, in his view, the Tribunal was wrong in finding that the
Respondent had given every reasonable consideration to the question of a
career appointment for Mr. Yakimetz; and this for two reasons. First,
the Respondent had provided no evidence of the way in which his decision
had been made, or of any reasons for it. Slmply to accept his statement
that proper consideration had been given, without objective evidence of
its having been done, was subversive of a system of judicial control of
administrative discretion. Second, such evidence as there was pointed
the other way, because the Respondent's letter, of 21 December 1983, to
Mr. Yakimetz simply did not aJ-low of any supposed "plain inference" that
"reasonable consideration" had been given; on the contrary it stated
explicitly, though erroneously, that because Mr. Yakimetz had been on
secondment by the USSR Government it was not possible to consider him for
any further appointment without that Government's agreement.
In holding, therefore, that the Secretary-General had given
reasonable consideration to such an appointment, the Tribunal had erred
in relation to provisions of the United Nations Charter, because the
General Assembly's resolution 37/126 was part of the corpus of law
intended to implement the Charter provisions concerning the status and
independence of the international civil service.
Dissenting opinion of Judge Evensen:
In his dissenting lopinion Judge Evensen agrees with the
Advisory Opinion in regard to the first question addressed to the Court
by the United Nations Clommittee on Applications. The United Nations
Administrative Tribunal did not fail to exercise jurisdiction by not
responding to the question whether a legal impediment existed for the
further employment of Mr. Yakimetz .
In regard to the second question Judge Evensen holds the opinion
that the Administrative Tribunal in its Judgement No. 333 erred on
questions of law relatilng to the provisions of the United Nations
Charter. Although the United Nations Secretary-General exercises
discretionary powers in the appointment of the United Nations staff,
certain criteria must be reasonably complied with. Among these
conditions are those laid dom in General AssembLy resolution 37/126 to
the effect that a staff member, upon completion of a fixed-term
appointment of five years of continuing good service, shall be given
"every reasonable consideration for a career appointment". Nor has
sufficient attention been paid ta the requirements contained in the Staff
Rules and Staff RegulatLons to the effect that in filling vacancies the
fullest regard shall be had to the qualifications and experience of the
perçons already in the service of the United Nations. Mr. Yakimetz had
the unqualified recommendation of his superior for a career appointment.
In spite thereof M:c. Yakimetz was placed on involuntary and
irrdefinite leave of absence. He wos denied access to the premises of the
United Nations including his office and the United Mations cafeteria
while he was still holding a valid contraçt of employment. In Judge Evensen's opinion the Administrative Tribunal erred in
acquiescing in the Secretary-General's failure to apply the
administrative rules and regulations binding upon him according to
Article 101, paragraph 1, of the Charter. The Tribunal further erred
in not finding that the administrative measures taken against
Mr. Yakimetz were inconsistent with Article 100 of the Charter; and
it erred under Article 101, paragraph 3, of the Charter in treating -
at least where career appointments are concerned - government consent
as a paramount consideration.
The Court gives its Advisory Opinion on an Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal