| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.7. | Interpretation of the Charter |
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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.
