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World Court Digest

I. Substantive International Law - First Part
5.11.United Nations Administrative Tribunal

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

[pp. 52-53] It is essential to keep clearly in mind the distinction between the Secretary-General's discharge of his duties and the performance by the Tribunal of its judicial functions, even though the same considerations may have had to be taken into account for both. It was the duty of the Secretary-General to give "every reasonable consideration" to the Applicant as a candidate for a career appointment; if he failed to do so, he failed to comply with General Assembly resolution 37/126. In order to do so, or in the course of doing so, he had to weigh up all relevant considerations, including the fact of the Applicant's secondment, in a reasonable manner in order to arrive at a conclusion. The Tribunal, when seised of the question, did not have to follow the Secretary General through this process, checking every step of the sequence. It had to decide whether there had been "non-observance" of any of the relevant texts, including General Assembly resolution 37/126; it had therefore to determine whether "every reasonable consideration" had been given. It clearly had the power and the duty to re-examine the question of secondment as a legal impediment, to satisfy itself that the Secretary-General had not committed an error of law on the point, and this it did. It had then to assess the question of reasonableness; but this did not, in the Court's view, involve the Tribunal in an attempt to make its own decision as to whether the Applicant should be given a career appointment.
Once the Tribunal had found that the Applicant did not possess a "legal expectancy" of further employment, involving a corresponding obligation on the United Nations to "provide continuing employment" (see paragraphs 33 and 34 above), his entitlement was only to receive "every reasonable consideration". Such consideration must by definition involve latitude for the exercise of the Secretary-General's discretion; and the Tribunal in fact found that "the Respondent had the sole authority to decide ... whether the Applicant could be given a probationary appointment" and that he "exercised his discretion properly" (para. XVIII). The consistent jurisprudence of the Tribunal itself is to the effect that where the Secretary-General has been invested with discretionary powers, the Tribunal will in principle not enquire into their exercise, provided however that "Such discretionary powers must be exercised without improper motive so that there shall be no misuse of power, since any such misuse of power would call for the rescinding of the decision" (Judgement No. 50 (Brown).

[p. 57] However while it is true that the Secretary-General made no claim to an unfettered discretion, and the Tribunal nowhere stated that he possessed one, the Tribunal did in effect accept as sufficient a statement by the Secretary-General that the "reasonable consideration" required by resolution 37/126 had been given, and did not require him to furnish any details of when and how it was given, let alone calling for evidence to that effect. The view might therefore be advanced that the Tribunal did not properly discharge its function of judicial review of administrative action, since the practical effect of an unquestioning acceptance of the Secretary-General's assertion that he had given "every reasonable consideration" would, it is suggested, be that he would enjoy such an unfettered discretion. It is however necessary to recall once again that the question before the Court is a different one: whether the Tribunal erred on a question of law relating to the provisions of the Charter of the United Nations. It is only if the Tribunal can be said, by the course of action it is alleged to have adopted, to have erred on a question of law of that kind, that it becomes the duty of the Court to examine the matter.

[pp. 153-154 D.O. Jennings] Turning now to what seems to be the actual ratio decidendi of the Tribunal's Judgement, what it amounts to is simply this: the Respondent has stated to the Tribunal that he gave every reasonable consideration, in accordance with the resolution, to the possibility of a career grade appointment of the Applicant, and if the Respondent says he has done so, his assertion must be accepted to be true, at least in the absence of proof to the contrary. To this way of deciding the matter there are two objections: the first is one of juridical principle; and the second is that the Respondent's assertion is irreconcilable with the documents presented to the Tribunal.
The objection of juridical principle may be very shortly stated. The UNAT Statute - itself an enactment of the General Assembly in pursuance of the relevant provisions of the Charter - establishes a system of judicial control of administrative discretions of the sort familiar in administrative law generally. The essence of such a system is that the judicial tribunal's task is to ensure that administrative decisions are made within the applicable legal framework. Thus, in the present case, whilst it is no part of the Tribunal's functions to usurp the discretion which the Respondent alone can exercise, it is for the Tribunal to ensure that, in making his decision, the Respondent did comply with the law; which everybody agrees included the resolution 37/126, IV, paragraph 5.

Such a system of judicial control of administrative discretion is subverted if the Tribunal simply accepts the assertion of the administrator, after the event, that his decision was made in accordance with the legal requirements. There is no purpose in having an administrative tribunal at all if it accepts as sufficient the administrator's assurances, made not even to the objecting applicant at the material time, but subsequently, and to the Tribunal; and, moreover, in the absence of evidence at the material time that the law was indeed complied with, and in the absence of reasons for the decision. This situation is incompatible with a system of judicial control of administrative discretion.