315.3/11–653: Telegram
The Secretary of State to the Embassy in France 1
confidential
Washington,
November 9, 1953—7:26 p.m.
1779. Urtel 1791, Depcirtel 186 Nov 7, fol is summary of memorandum of law for use of French in their review of technical position.
B. Summary
GA has legal right and responsibility review and refuse give effect to decisions of Administrative Tribunal.
[Page 367]- 1.
- Background of international administrative tribunals and
relevant international law support above conclusion.
- (a)
- International administrative tribunals are relatively new institutions. They are sui generis. Their relationship to GA is not controlled by analogy to institutions of similar name or functions in municipal law.
- (b)
- International administrative tribunals operate on basis of underlying agreement between states which makes relevant to them principles of international law. One such well settled principle, developed in connection with arbitral tribunals, is that an award is null or voidable if it involves excess of tribunal’s power or terms of reference.
- 2.
- Under Charter of UN power and responsibility for personnel and functioning of Secretariat are vested in SYG and GA. Source of Assembly’s power in establishing Tribunal is found Art 22 of Charter, which permits GA to establish subsidiary organs to assist in discharge of its responsibilities. Neither legislative history nor intent evidenced by other Charter provisions gives basis for conclusion that GA cld or shld be bound by decisions of such a subsidiary body.
- 3.
- Precedent of League of Nations Administrative Tribunal,
Statute of UN Administrative
Tribunal, and its legislative history combine to show that
neither intent nor effect of GA’s
action was to place judgments of Tribunal beyond its power of
review.
- (a)
- When initially used in Statute of League of Nations Tribunal phrase “final and without appeal” meant that processes established by Statute ended and that no right of appeal was provided.
- (b)
- That power to review and refuse to give effect to decisions of Tribunal was reserved to Assembly was established beyond any possible doubt by 1946 League precedent where this power was exercised respecting 13 judgments.
- (c)
- Legislative history of UN Tribunal’s statute shows that from outset League Statute was its model. Nothing occurred to cast even a shadow on clearly established meaning of “final and without appeal” as carried into new Statute.
Tribunal has gone substantially beyond its proper powers and has made number of important errors in applying regs as well as errors of law and fact in fixing amounts of awards.
- 1.
- Administrative Tribunal misinterpreted functions assigned to it by GA in disciplinary cases. It treated cases as though it possessed power to hear de novo, and substituted its judgment for SYG’s in application of standards to staff conduct, all in disregard of need to have conclusion of arbitrariness or bad faith based on substantial evidence compelling such conclusion.
- 2.
- Tribunal committed serious errors of law in its application of
Staff regs.
- (a)
- Actions of staff members involved cld properly be viewed as “serious misconduct”.
- (b)
- These actions were clearly unsatisfactory conduct and Tribunal shld have sustained them on this ground.
- (c)
- As to temporary indefinite employee (Crawford case), Tribunal acted contrary to intent of GA as recently clarified for its benefit in reg 9.1(c).
- 3.
- In setting amounts of awards Tribunal failed to base its findings on reasons capable of justifying varying amounts upon which it fixed, and it accepted as controlling unverified and erroneous representations of fact.
Dulles
- Repeated to London as telegram 2523.↩