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World Court Digest

Summaries of the Decisions

Review of Judgment No. 333 of the United Nations

Administrative Tribunal, Advisory Opinion of May 27,1987

The central problem with which the Court had to deal in its Advisory Opinion concerning the review of Judgment No.333 of the United Nations Administrative Tribunal was the discretion of the Secretary-General in decisions on the employment of staff members. The Court had to ask itself how far the Secretary-General's discretion in that regard is structured by legal principles derived from the provisions of the UN Charter, and to what degree the Administrative Tribunal (and in the consequence also the International Court of Justice in its task of reviewing the Administrative Tribunal's judgments) should control the content of the Secretary-General's decisions in staff matters. Article 101 para.3 of the Charter gives some basic guidelines on recruitment and service conditions in providing: "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, competence, and integrity." More concrete shape was given to these rules on employment of staff by several General Assembly resolutions. Resolution 37/126 provided, inter alia, "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", a rule the benefits of which were claimed by the applicant before the Administrative Tribunal in the proceedings leading to Judgment No. 333.

Mr. Yakimetz, the applicant, had served in the United Nations secretariat from 1969-1974 on the basis of a secondment from the Soviet Government. Alter some years back in the USSR he again entered the service of the United Nations in 1977 as a reviser in the Russian Translation Service, with a five-year appointment, and again on the basis of a secondment. Before the end of his fixed-term contract, he was transferred in 1981 as Programme Officer to the Programme Planning and Co-Ordination Office, with his contract later extended for one year until the end of 1983.

On 9 February 1983, one day after the applicant had been informed by his superiors that they intended to request a further extension of his contract, he applied for asylum in the United States, informing the Representative of the USSR about his resigning from all positions in the Soviet civil service. After Mr. Yakimetz had addressed a memorandum to his superior in the Programme Planning and Co-Ordination Office in which he requested an extension of his contract, he was informed in November 1983 by the Deputy Chief of Staff Services "upon instruction by the Office of the Secretary-General" that it was not the intention of the organization to extend his fixed-term contract beyond its expiration date, i.e. 26 December 1983. The applicant's protests, invoking inter alia General Assembly resolution 37/126, and a request to the Secretary-General for review of the decision proved fruitless, since the Secretary-General informed Mr.Yakimetz of maintaining his decision. Concerning the motivation of that decision, the New York Times in an article of January 1984 quoted the Executive Assistant to the Secretary-General as having said that "to have the contract extended... Soviet consent was essential". And the Under-Secretary-General for Administration and Management, commenting on that report in a letter to the New York Times, pointed out that "a person who is on loan returns to his government unless that government agrees otherwise".

The Administrative Tribunal, which then was seised with the case by Mr.Yakimetz, found in its Judgment No. 333 that the applicant, contrary to his contention, did not have a legal expectancy of continued United Nations employment. Regarding the principle established by General Assembly resolution 37/126, the Tribunal considered the Secretary-General to have given "the required (i.e. `every reasonable') consideration for a career appointment". The Secretary-General "apparently decided", stated the Tribunal, "in the background of secondment of the Applicant..., that the Applicant could not be given a probationary appointment. He thus exercised his discretion properly, but he should have stated explicitly... that he had given `every reasonable consideration' to the Applicant's career appointment". At the same time, however, the Tribunal expressed "its dissatisfaction with the failure of the Respondent to record sufficiently early and in specific terms the fact that he had given the question of the Applicant's career appointment `every reasonable consideration' as enjoined by the General Assembly resolution" - a statement severely attacked by the President of the Tribunal. The President, Mr. Endre Ustor, annexed a statement that in his view the doctrine of the Tribunal on secondment precluded not only the extension of a seconded fixed-term appointment but also its conversion to any other type of appointment without the consent of the Government concerned. The Tribunal's Vice-President, Mr. Arnold Kean, on the other hand dissented completely from the Judgment in expressing the view that the Secretary-General's decision "was flawed by fundamental mistakes of fact or law and requires to be set aside" and declared "that the Tribunal should accept the Applicant's plea that he was illegally denied his right to reasonable consideration for a career appointment".

The applicant did not accept the Judgment and applied to the Committee on Applications for Review of Administrative Tribunal Judgments which is the competent organ to request an advisory opinion of the Court. The Committee came to the conclusion that there was (at least in part) a substantial basis for the application and submitted two questions to the Court. It asked whether the Administrative Tribunal had failed to exercise jurisdiction vested in it by not responding to the question whether a legal impediment existed to the further employment of the applicant, and it asked the Court whether the Tribunal had erred on questions of law relating to provisions of the Charter of the United Nations.

The Court examined first the question of its competence to give an advisory opinion, and the propriety in doing so. Recalling its previous jurisprudence, the Court concluded that the questions addressed to it were clearly legal questions arising within the context of the Committee's activities, questions which undoubtedly fall within the scope of the Court's competence under Article 11, paras. 1 and 2 of the Statute of the United Nations Administrative Tribunal, Article 96 of the UN Charter and Article 65 para. 1 of the Statute of the Court. As for the propriety of giving an opinion, the Court again emphasized the discretionary character of its power under Article 65 of its Statute, but found that there was a clear legal justification for replying to the two questions put to it by the Committee. The Court, however, qualified its conclusion by a reservation as to the merits of the procedure established by Article 11 of the Tribunal's Statute. It recalled that in its 1973 advisory opinion on the Fasla case it had subjected the machinery established by Article 11 of the Tribunal's Statute to critical examination, and had expressed severe doubts as to the propriety of this procedure. While renewing in principle these reservations, the Court, which showed itself anxious "to secure the judicial protection of officials" of the United Nations, concluded nevertheless that it should give an opinion in the case.

The Court also recalled in general the principle established in its advisory opinions of 1973 and 1982 that its role in review proceedings was not "to retry the case and to attempt to substitute its own opinion on the merits for that of the Tribunal"; in particular, it is not, in the view of the Court, its task to express a view on the correctness of any finding of the Tribunal, unless this is necessary in order to reply to the questions put to it.

With regard to the first question - whether the Tribunal had failed to exercise jurisdiction vested in it by not examining the question of a possible legal impediment to further employment of the applicant - the Court stated that the Tribunal's handling of the question of the "legal impediment" was not entirely clear. In the view of the Court an analysis of the Tribunal's Judgment 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. But, such was held by the Tribunal, having given reasonable consideration to the applicant's case, the Secretary-General had decided against a new appointment.

In the Court's perspective, however, with that finding the question was not really exhausted. The Court noted that the real complaint of the applicant against the Tribunal was not so much an alleged failure of the Tribunal to respond to the question whether there was a legal impediment to his further employment, but that the Tribunal paid insufficient attention to the indications that the Secretary-General had thought that there was a legal impediment, so that the "reasonable consideration" either never took place or was vitiated by a basic assumption - namely that there was an impediment - which was later conceded to be incorrect. In recalling the need to look in some cases behind the strict terms of the question put to it, the Court stated it essential not only to put under scrutiny whether the Tribunal failed to examine the question of the legal impediment to the applicant's further employment, 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 could be established with sufficient certainty that the Tribunal addressed its mind to the matters on which the applicant's contentions were based, "then, whatever view be taken of the conclusion reached by the Tribunal on the evidence available, there was no failure to exercise jurisdiction in that respect".

The fact that the text of the Tribunal's Judgment does not take up specifically the question of the existence of a "legal impediment" does not justify, according to the Court, the conclusion that the Tribunal failed to address this question. What the Tribunal stated was that the Secretary-General could take the decision to offer the applicant a career appointment, but was not bound to do so. From this it follows for the Court that the Tribunal was clearly deciding, although by implication, that there was no absolute legal impediment to further employment. In that regard the Court also refers to the statement of the Tribunal's President Ustor and to the dissenting opinion of the Tribunal's Vice-President Kean, which the Court found advisable to take into account in order to elucidate the Tribunal's Judgment. In view of these opinions appended to the Judgment, the Court found it impossible to conclude that the Tribunal did not address its mind to the issues specifically mentioned by Mr. Ustor and Mr. Kean as the grounds for their disagreement with part of the Judgment. The "Tribunal as a body, represented by the majority which voted in favour, must also have drawn its conclusions on these issues, even if those conclusions were not spelled out as clearly in the Judgement as they ought to have been". Finally, as to the question whether `every reasonable consideration' was in fact given, the Court affirmed that it was in any event one for the Tribunal to decide, and one which the Tribunal did decide, in the affirmative. The Court, recalling that it is not entitled to substitute its own opinion for that of the Tribunal on the merits of the case, did not find it possible to uphold the contention that the Secretary-General did not give "every reasonable consideration" to the applicant's case, in implementation of resolution 37/126. "The fact of the matter is however that the Tribunal found that the consideration given was reasonable, and to accuse the Tribunal of being wrong in that decision is not to convict it of failure to exercise its jurisdiction, but rather to complain of the way in which it did exercise it." The Court, accordingly, considered that the Tribunal did not fail to exercise jurisdiction vested in it.

With regard to the second question - whether the Tribunal erred on questions of law relating to provisions of the Charter of the United Nations - the Court began its analysis with a remark concerning the nature of its task. Alter recalling that the interpretation, in general, of Staff Regulations and Rules is not the Court's business, but that it is, on the contrary, very much 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, the Court emphasized that it is also open to the Court to judge whether there is any comparable contradiction between the Charter and the Tribunal's interpretation of any other relevant texts such as, in that case, General Assembly resolution 37/126.

The allegation that the Tribunal erred on a question of law relating to the Charter when affirming that the appointment decision was based on "reasonable consideration" of the applicant's case, although no proposal had ever reached the Appointment and Promotion Board, was refuted by the Court. Art. 101, para. 1 of the Charter, which provides that "The staff shall be appointed by the Secretary-General under regulations established by the General Assembly", does not specify which procedures are to be followed in such a case. The Tribunal had found that it was left to the Secretary-General "to decide how every reasonable consideration for a career appointment should be given to a staff member" and that the Secretary-General had "the sole authority to decide what constituted `reasonable consideration"'. But the Tribunal had, as the Court remarked, nowhere stated that the Secretary-General possesses unfettered discretion. Although the Tribunal had accepted as sufficient a statement by the Secretary-General that the `reasonable consideration' required by resolution 37/126 had been given, and had not required the Secretary-General to furnish any details of when and how it was given, let alone calling for evidence to that effect, the Court felt unable to regard the interpretation given by the Tribunal to resolution 37/126 as in contradiction with Article 101, para.1, of the Charter. Additionally, the Court also dismissed the allegation that the Tribunal should have regarded the statements quoted by the applicant as evidence that the problem of secondment and the lack of government consent had been allowed to dominate more than the Secretary-General was ready to admit. The Tribunal had taken the opposite position, in stating that the Secretary-General had "exercised his discretion properly". Whether or not this was an error of judgment on the Tribunal's part, the Court was certain that it was not an error on a question of law relating to Article 101, para. 1, of the Charter. "Whatever view be taken as to the way in which the Tribunal examined the exercise by the Secretary-General of his discretion, taking into account the apparent inconsistency between the Secretary-General's pleading and the reported statements of his senior officials, the essential point is that the Tribunal did not abandon all claim to test such exercise against the requirements of the Charter. On the contrary, it re-affirmed the need to check any `arbitrary or capricious exercise' of a discretionary power."

The decisive provision of the Charter to be dealt with by the Court, however, was Article 101, para. 1, which declares that the "paramount consideration" in the employment of the staff should be "the necessity of securing the highest standards of efficiency, competence, and integrity". The Court stressed that the expression "the paramount consideration" is not synonymous with "the sole consideration", and that it is for the Secretary-General to balance the various considerations; it was not for the Tribunal, nor was it for the Court, to substitute its own appreciation of the problem for his. In the view of the Court, the Secretary-General's decision could not be said to have failed to respect the "paramount" character of the considerations mentioned in Article 101 para.3, simply because he took into account all the circumstances of the case in order to give effect to the interests of the organization. The fact that the Tribunal referred in its Judgment to its own jurisprudence established previously by the Fischman case was viewed by the Court to be not essential to the reasoning of the decision. The Tribunal had criticized the Secretary-General for not respecting the "widely-held belief' that staff members who break their ties with their home countries can no longer claim to fulfil the conditions governing employment in the United Nations; the Tribunal had found in its Judgment that this position must provide an essential guidance in this matter. The Court here observed that this "widely-held belief' amounts merely to the views expressed by some delegates to the Fifth Committee in 1953, which never materialized in a General Assembly resolution. However, since the Tribunal, in the Court's opinion, had not established that the "essential guidance" referred to in the Fischman decision was determinative of the question of reasonable consideration, it had not erred on the interpretation of Article 101, para.3 when verifying whether `reasonable consideration' had taken place.

The Court found thus, by 11 votes to 3, that the Tribunal had not erred on any question of law relating to the provisions of the Charter of the United Nations and, unanimously, that it had not failed to exercise jurisdiction vested in it by not responding to the question whether a legal impediment existed to the further employment of the applicant.