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World Court Digest

I. Substantive International Law - First Part
5.7. Interpretation of the Charter

¤ Application for Review of Judgment No. 333 of the
United Nations Administrative Tribunal, Advisory Opinion
Advisory Opinion 27.5.1987

[p. 63] It is clear that the expression "the paramount consideration" (in French, la considération dominante) in Article 101 of the Charter is not synonymous with "the sole consideration"; it is simply a consideration to which greater weight is normally to be given than to any other. Nor does it mean that "efficiency, competence and integrity" together constitute a sufficient consideration, in the sense that a high enough standard of each gives rise to an entitlement to appointment. It is also clear, since paragraph 1 of the Article provides that "The staff shall be appointed by the Secretary-General under regulations established by the General Assembly", that the task of balancing the various considerations, in cases where they incline in different directions, is for the Secretary-General, subject to any general directions which might be given to him by the General Assembly. Resolution 37/126 itself constitutes such a direction, and one which operated in favour of the Applicant as compared with any outside candidate, or one without his record of more than "five years' continuing good service". Both on this basis, and on the basis of Article 101, paragraph 3, of the Charter, it is material to observe that the Applicant's efficiency and competence were highly spoken of by his superiors. The Tribunal did not make any finding reflecting on his integrity; it did however discuss the consequences of a change of nationality by a staff member in another connection - to be considered below.
The decision was that of the Secretary-General; and it was not for the Tribunal, nor indeed for the Court, to substitute its own appreciation of the problem for that of the Secretary-General. The Court could only find that the Tribunal had in this respect "erred on a question of law relating to the provisions of the Charter" if it found that the Tribunal had upheld a decision of the Secretary-General which could not be reconciled with the relevant article of the Charter. That does not appear to the Court to be the case. The decision of the Secretary-General 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 "all the circumstances" enumerated in his Answer (paragraph 80 above) in order to give effect to "the interests of the Organization".

[pp. 118-119 D.O. Schwebel] While the critical error of law relating to a provision of the United Nations Charter in this case lies in the Tribunal's failure to find that the Secretary-General had not given Mr. Yakimetz's candidacy every reasonable consideration, and in its consequent failure to require the Secretary-General to comply with a regulation binding upon him, established by the General Assembly in pursuance of Article 101, paragraph 1, of the Charter, still another error of law relates to Article 101, paragraph 3, of the Charter. That provision in effect establishes three "paramount" considerations in the employment of staff: efficiency, competence, and integrity. It further provides that: "Due regard shall be paid to the importance of recruiting staff on as wide a geographical basis as possible." That lesser consideration in no way imports that a change in the nationality of a staff member, much less actions manifesting an intent to seek a change in nationality, are considerations relevant to the suitability for continued service of such a staff member. The Administrative Tribunal held in the Estabial case (Judgment No. 310) that considerations of geographical distribution may not be given precedence over an employment decision which is to be reached on the basis of an assessment of an official's efficiency, competence and integrity. No less must the paramount considerations of efficiency, competence and integrity govern considerations of nationality, which are not even mentioned in the Charter.

[pp. 142-143 D.O. Jennings] As concerns paragraph 1 of Article 101 of the Charter, it is entirely clear that it is the Secretary-General, under the appropriate regulations, to whom alone is given the competence to appoint staff. The decision in a particular case is in his discretion and subject to his judgment of the matter. Neither the Tribunal, nor this Court, may usurp that discretion. It was without doubt for the Secretary-General to decide whether to give further employment to Mr. Yakimetz or not.
Yet this discretion must be exercised within and in conformity with "regulations established by the General Assembly", and any failure to conform to the legal requirements of the exercise of the discretion is a matter which comes within the jurisdiction of the Tribunal, and where accordingly it is possible that the Tribunal in its Judgement may commit an error relating to the provisions of the Charter, which error is subject to review and reformation by this Court. Is there then, in the case of Mr. Yakimetz, evidence of any such failure to act in accordance with the corpus of Charter law and derivatory regulations adopted by the General Assembly; and if so did the Tribunal's Judgement err in not detecting such a failure? This is the question to which this Court has to address itself.
First it is necessary to dispose of the argument that the effect of paragraph 3 of Article 101 - certainly a provision of the greatest possible importance for the efficiency and integrity of the United Nations staff - has the effect that a person with reports indicating that he has displayed the highest standards of efficiency, competence and integrity, can hardly be refused further employment. Thus the Applicant, in his letter of 13 December to the Secretary-General, avers that:

"To deny me the right to reasonable consideration for a career appointment for any reason unrelated to merit - efficiency, competence, integrity - would, I believe, be a violation of Article 100 [?101] of the Charter."

This is to go too far (quite apart from the interpolation of the notion of "merit", which does not appear in Article 101.3). Efficiency, competence and integrity are surely a paramount consideration but this does not mean that this is the only consideration permitted by the Charter; in fact the very word "paramount" implies that there are other relevant and permissible grounds. And if considerations other than efficiency, competence and integrity, may sometimes have to be taken into account besides the paramount consideration, it must be assumed that there can be cases where considerations other than the paramount consideration may prevail.

[pp. 165-166 D.O. Evensen] It follows from Article 101, paragraph 1, of the Charter that not only has the Secretary-General been imbued with the power to appoint the United Nations staff, but the Secretary-General must exercise his discretionary power. He cannot abide by or be unduly influenced by the orders or wishes of governments, organizations or other external forces. Secondly, and especially important, is that the Secretary-General's discretionary power is not synonymous with unlimited or absolute powers. Under general principles of law, this discretionary power has to be exercised in accordance with accepted governing procedures.
On the other hand, it is clear under Staff Rule 104.12 (b) that a fixed term appointment does not carry any legal expectancy of renewal or conversion to a career appointment. Consequently, the discretionary power of the Secretary-General is of major importance for the appointment and composition of the Secretariat. It is equally clear that, in exercising his discretionary power, the Secretary-General must apply certain established standards and norms.