Foreign Relations of the United States, 1952–1954, United Nations Affairs, Volume III

IO files, SD/A/C.5/214

Position Paper Prepared in the Department of State for the United States Delegation to the Ninth Regular Session of the General Assembly

limited official use

[Washington,] September 9, 1954.

Administrative Tribunal Awards: Advisory Opinion of the International Court of Justice

the problem

The Eighth General Assembly considered the issues presented by the award of nearly $180,000 damages by the U.N. Administrative Tribunal to eleven U.N. employees of U.S. nationality whom the Tribunal held had been illegally dismissed by the Secretary-General because they invoked the Fifth Amendment and refused to answer questions relating to subversive activities. While the United States Delegation vigorously opposed payment of these awards, the majority of members were not certain that the Assembly had the legal right to refuse to give effect to these awards. As a consequence, it was decided by a vote of 41–6–13 (U.S.) to refer the question to the International Court of Justice for an advisory opinion, and to postpone action on the awards until the Court’s opinion was available to be considered by the Assembly. The U.S. presented its views both in written and oral statements to the Court. The Court issued in July a 9–3 advisory opinion which holds that, as the Statute of the Tribunal is now drawn, the General Assembly has no right on any grounds to refuse to give effect to the awards of the Tribunal.¹ This opinion together with a request for the appropriation of funds to pay the awards will be considered by the Ninth Session.

united states position

1. As to the Opinion of the Court:

(a) Since the Court’s opinion places the Tribunal in an all-powerful position vis-à-vis the Secretary-General and the Assembly, [its consequences for the future are likely to be such that] it is deemed essential to the interests of the U.S., the U.N. and the Tribunal to seek to amend the Statute of the Tribunal.

(b) The United States Delegation should therefore seek to obtain amendments to the Statute of the Tribunal that will adequately limit the discretion of the Tribunal. Four tentative proposed amendments are set out in Annex 1. It is recognized that while the U.S. prefers a full power of review in the General Assembly, (see Amendment 4, Alternative A), there is serious question as to whether our amendment to this effect could obtain majority support. If advance negotiation indicates this to be the case, the U.S. Delegation should seek to obtain, as a minimum guarantee, amendments along the lines of [those set out in the second alternative.] 1, 2, 3 and 4, Alternative B.

2. As to the Awards:

(a) Before action is taken on the Tribunal awards, the United States Delegation should seek to have a special fund established for payment of these and future Tribunal awards, this fund to be financed by profits from one or more of the commercial enterprises operated by the United Nations.

(b) The United States position on the issue of the actual payment of the awards should be to state our continued opposition to the awards and our disagreement with the Court opinion, but to indicate that the United States would not wish to take a position on the awards that might be interpreted as a departure from the historic United States tradition of respect for judicial opinions. Assuming that the objectives in section 1 and paragraph (a) above are accomplished the United States Delegation may, in line with the considerations just mentioned, abstain when the vote is taken on the payment of the awards. If the objectives in section 1 and/or paragraph (a) are not achieved, the Department should be advised and consulted as to U.S. position on the vote on the awards.

3. As to Procedure:

The United States Delegation should seek to have the question of payment of the awards separated from and considered subsequently to the broader constitutional and legal issues raised by the Court’s opinion and need for amendment of the Tribunal Statute.

comment

The issues involved in this item have a long and complicated history. What is to be decided at the Ninth Session is the disposition of the particular cases which have been adjudicated under the processes provided to date by the General Assembly and whether changes should be made in the adjudication process, as the result of the Court’s opinion, in order to safeguard, for the future, the powers of the Secretary-General and the General Assembly.

The International Court of Justice opinion, by holding that the Assembly has no right of review, will mean that the debate this year will not be directed toward the merit or lack of merit in the individual awards. Instead, attention will be focused on the legal powers of the General Assembly with respect to the Administrative Tribunal. On this issue the Court’s interpretation of the Tribunal Statute so far fails to meet the need for some lawful control upon the Tribunal that amendment of the Statute appears to be essential to the future interest of the United States and the United Nations.

In view of the character of the Court’s opinion regarding the present legal powers of the Assembly vis-à-vis the Administrative Tribunal, failure to approve the awards on the controversial eleven cases would constitute repudiation of the advisory opinion of the Court. Such a repudiation would constitute a bad precedent for the United States, which strongly relies upon the lawful processes of international adjudication. Moreover, for the U.S. to take a position which would support such repudiation would be contrary to the principle of respect for judicial opinions, a principle for which the U.S. has stood strongly and for which it has been a protagonist for a long time.

The legislative history in connection with the attached concurrent resolution of Congress dealing with the subject of these awards (Annex 2)² appears to indicate that the major Congressional objections can be met if no part of the payments for these awards is charged to the U.S. taxpayer and if measures are taken which will assure that U.S. interests on matters of this sort are better served in the future.

The above recommendations are designed to meet these varying considerations in a manner which will best serve overall U.S. interests.

Annex 1

Proposed Amendments to the Statute of the Administrative Tribunal³

The following four proposed amendments to the Statute of the Administrative Tribunal are illustrative only. Final texts for use in negotiation with other Delegations have not been settled upon or cleared.

amendments 1 and 2

Two amendments, one to Article 2(1) and the other to Article 2(4) are intended to make express the proposition that competence is excluded when decisions of the General Assembly are not followed or where the Tribunal invades the discretion of the Secretary-General:

Amend Article 2 (1) to read as follows:

“Subject to the decisions of the General Assembly, including the Staff Regulations and the terms of the present Statute, the Tribunal shall be competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members. The words ‘contracts’ and ‘terms of appointment’ include all pertinent regulations and rules in force at the time of alleged non-observance, including the staff pension regulations.”

Amend Article 2 (4) to read:

“The Tribunal shall not be competent, however, to deal with any applications where the cause of complaint arose prior to 1 January 1950, nor shall it be competent to substitute its judgment in areas reserved for the discretion of the Secretary-General.”

amendment 3

A third amendment to Article 9(1) is designed to make firm the limit of two years base pay for awards of compensation.

The final two sentences of Article 9(1) should be amended to read: “If, in its opinion, special circumstances so warrant, the Tribunal may recommend to the General Assembly an additional ex ratia payment.”

amendment 4

Finally, an amendment is proposed to provide for review of Tribunal decisions. One alternative—the preferred course—is to vest a full power of review in the General Assembly. This could be accomplished by an amendment of Article 10 (2) along the following lines:

Alternative A:

Amend Article 10 (2) to read:

“(2) The judgments shall be final and without appeal; provided, however, that they may be reviewed by the General Assembly on the motion of any Member Government supported by one-third of all the Members [or on the written request of any Member Government signed by the representatives of one-third of all the Members], On such review, the judgments may be set aside, returned to the Tribunal for reconsideration, or approved by the General Assembly”

Another alternative, which would have the advantage of analogous precedent in the case of the International Labor Organization Tribunal, would be to permit review by the International Court of Justice should the Tribunal exceed its competence or err fundamentally in procedure:

Alternative B:

Amend Article 10 (2) as follows:

“(2) Judgments shall be final and without appeal, except that the General Assembly, upon initiative of a Member, or on the recommendation of the Secretary-General, may request an advisory opinion from the International Court of Justice relating to the jurisdiction or competence of the Tribunal, or the occurrence of a fundamental fault in procedure. Notice by or to the Secretary-General of his or a member’s intent to propose reference to the International Court of Justice must be given within 60 days of date of judgment, and the judgment will be suspended, pending action by the General Assembly.”

A very considerable range of possible solutions lies between these two alternatives for Amendment Four.

1. This was the answer to the first question put to the Court by the General Assembly. As the first question was answered in the negative it was not incumbent upon the Court to answer the second question. The advisory opinion was rendered on July 13, 1954 (UN Doc. A/2701).
2. Not printed.

3. The Administrative Tribunal was established by the General Assembly at its Fourth Regular Session (Part I) in Resolution 351 (IV), Nov. 24, 1949 (Part A—the Statute of the Tribunal), and Dec. 9, 1949 (Part B—enumeration of the appointed members of the Tribunal). For text of the Statute, consisting of 12 articles, see United Nations, Official Records of the Fourth Regular Session of the General Assembly, Resolutions, 20 September–10 December 1949 [Part I of the Two Part Session], pp. 49–51.

   On March 12, 1954 the Secretary-General submitted an exhaustive brief to the International Court of Justice, “Awards of Compensation Made by the United Nations Administrative Tribunal (Written Statement by the Secretary-General of the United Nations)”. This comprised three parts, Part III of which consisted of a 28-page survey of the legislative history of the establishment of the UN Administrative Tribunal. (IO files, Doc. UN/UND/315, undated)