315.3/11–353: Telegram
The Secretary of State to the Embassy in the United Kingdom 1
2405. Personal for the Ambassador. UN General Assembly within ten days to consider appropriation about $200,000 pay UN Administrative Tribunal awards US nationals who refused testify questions relating subversive activities. SYG may also pro-pose amendments staff regulations to obtain broad dismissal authority for SYG in future. Believe will be great difficulty obtaining appropriation pay US contribution to budget from which any awards paid these cases. Please emphasize to Foreign Office our concern regarding this matter and leave following aide-mémoire: “Govt of US greatly disturbed by UN Administrative Tribunal decisions, and am convinced the General Assembly must meet its responsibility for review and corrective action. Sanction of Tribunal decisions by appropriation of funds to pay awards would be abdication of such responsibility in view of law and [Page 362] facts in these cases. My views are based on a careful analysis which establishes:
- A.
- Tribunal did not review SYG’s action to determine whether it fell within bounds of reason as General Assembly intended, but substituted its judgment for SYG’s as to standards conduct and service UN employees must meet fulfill Charter requirements (Article 101 (3)) of highest integrity. Under Charter and regulations, this function SYG responsibility. General Assembly limited Tribunal’s functions disciplinary cases to determining whether SYG acted arbitrarily, in bad faith, or contrary procedural requirements staff regulations.
- B.
- SYG right in considering these employees guilty misconduct. In public inquiry by proper authorities of democratic government (i.e., US) they were asked numerous questions related subversive activities and refused answer by invoking Fifth Amendment, thereby raising serious questions any reasonable mind their integrity. SYG completely within rights under Charter and regulations in advising staff their position as international public servants required response to questions asked in instant cases. SYG did not deprive of constitutional privilege, but did make clear that exercise such privilege these cases not compatible obligations staff members under Charter and regulations. Privileges accorded by national laws or constitutional provisions not intended or effective to shelter staff members from requirement they meet Charter standards. US urging other governments support position decisions regarding nature such action by staff members one for SYG to make, SYG decisions in instant cases were not arbitrary or unreasonable, and they were not subject to reversal by Tribunal.
- C.
- Tribunal based awards on facts presented by staff members without independent inquiry and verification. Subsequently, testimony under oath of number of these individuals before Congressional committee demonstrates Tribunal calculated awards without full knowledge of facts. Since Tribunal exceeded jurisdiction, erred in conclusions, and failed conduct inquiry in thorough and independent manner, US believes General Assembly has obligation rectify situation.
- D.
- Since Tribunal subsidiary organ of General Assembly established under Article 22 of Charter to perform certain functions assigned by Charter to General Assembly itself, there is no question legal competence of General Assembly review Tribunal decisions; Statute’s provision re finality and no appeal means only that neither SYG nor staff members who are parties to dispute before Tribunal have any right of appeal. Tribunal Statute modeled that of League which had same provision finality and appeal. Any question meaning settled by decision League Assembly 1946 which debated point, reviewed decisions its Administrative Tribunal and refused give effect 13 Tribunal awards (L of N, O.J., SP Supplement No. 194, Geneva 1946, pp. 61, 133, 263). UK took strong lead in supporting this result at that time. [Page 363] League precedent directly in point since both League and UN Tribunals insisted on a misconstruction of Assembly intent and Assembly could correct only by review and reversal. UN Tribunal cases involve principle established by 1946 decision: ‘… it is within the power of the Assembly, which can best interpret its own decision, by a legislative resolution, to declare that the awards made by the Tribunal are invalid and are of no effect …’
- E.
- Under Article 17 of Charter, General Assembly must approve UN budget which requires review of all items of expenditure, including Tribunal awards.
In US view, errors of UN Tribunal are so serious in substance and consequences that General Assembly should take following actions:
- 1.
- Refuse to pay any compensation;
- 2.
- Make clear to Tribunal that under regulations, SYG has broad discretion in disciplinary matters and in future Tribunal must give due weight to interpretations and applications of regulations by SYG, and not attempt to substitute its judgment for his in such cases.”
More detailed development of argument contained in CA–2416, Nov. 2,2 and draft speech transmitted CA–2392, Oct 30,3 may be used as appropriate.4
- Substantially the same telegram was sent to 18 diplomatic missions in the Near and Middle East, and the Far East, in circular telegram 179, Oct. 31. 3:10 p.m. (315.3/10–3153). This was sent at the urgent request of the Mission at the United Nations (New York telegram Delga 172, Oct. 27, 8 p.m.; 315.3/10–2753).↩
- This was a detailed circular Instruction sent for action to 33 diplomatic missions in Latin America and Western Europe, and to 12 other missions for information only (315.3/11–253).↩
- Not printed (315.3/10–3053).↩
-
In his telegram 1956, Nov. 5, 6 p.m., Ambassador Aldrich responded:
↩“I spoke to Eden on this subject today at luncheon, emphasizing our concern. He promised to look into the matter.
Aide-mémoire left with appropriate superintending Under Secretary who promised to see that matter received Eden’s attention. Under Secretary said that subject was most difficult for British because their highest legal opinion was that tribunal was acting strictly within its authority in making awards. He said that Selwyn Lloyd had considerable latitude in dealing with question and seemed to think that detailed discussion should be centered in New York. We agree but will continue to emphasize as opportunity offers seriousness of this matter from US viewpoint.” (315.3/11–353)