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.
