315.3/11–1754: Telegram
The United States Representative at the United Nations (Lodge) to the Department of State
Delga 254. Re ICJ advisory opinion re awards of Administrative Tribunal. Refer para 1 (b) Position Paper SD/A/C.5/214 Sept 9, advance soundings indicate little support for amendment along lines of Alternative A. Propose seek support following intermediate alternative rather than fall back on Alternative B at this time:1
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- I.
- Omit present para 2 of Article 10 and renumber remaining paras accordingly;
- II.
- Insert following new Article 11 and renumber following paras
accordingly:
“Article 11
- “1. Subject to suspension and review by the Board of Judicial Review as provided in paragraphs 2, 3 and 4 of this Article, and to the power of the General Assembly to request an advisory opinion of the International Court of Justice on questions of law, judgments of the Administrative Tribunal shall be final and without appeal effective ninety days following the date of judgment.
- “2. A Board of Judicial Review may, upon the proposal of a Member or of the Secretary General, be constituted by simple majority vote of the GA, to consider any judgment of the Administrative Tribunal. The Board of Judicial Review may remand a case for rehearing or reconsideration by the Members originally sitting in the case or by the full membership, and may confirm, set aside or revise a judgment [Page 408] of the Tribunal, in accordance with such rules as it may establish to govern its proceedings.
- “3. The Board of Judicial Review shall be composed of three Members to be named by the President of the GA and the President of the ICJ, acting jointly.
- “4. If within ninety days of judgment by the Administrative Tribunal a Member State so requests, or the SYG so determines on his own initiative, the judgment will be suspended pending disposition of a proposal of the kind referred to in paragraph 2 at the current or next regular session of the GA, as the case may be, and the SYG will give notice to the Tribunal, the parties, and all Members of the intended proposal.”
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In addition US would propose amendments to Articles 2(1), 2(4) and 9(1) as indicated Position Paper as follows:
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- III.
- Amend Article 2(1) to read as follows:
“Subject to the decisions of the GA, 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 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.”
- IV.
- 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 SYG”
- V.
- Amend Article 9(1) to read:
“If the Tribunal finds that the application is well founded, it shall order the rescinding of the decision contested or the specific performance of the obligation invoked. At the same time the Tribunal shall fix the amount of compensation to be paid to the applicant for the injury sustained should the SYG, within thirty days of the notification of the judgment, decide, in the interest of the UN, that the applicant shall be compensated without further action being taken in his case; provided that such compensation shall not exceed the equivalent of two years’ net base salary of the applicant. If, in its opinion, special circumstances so warrant, the Tribunal may recommend to the GA an additional ex gratia payment.”
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- In telegram Gadel 109, to New York, Nov. 22, 6:15 p.m., the Department of State authorized the U.S. Delegation to proceed on the basis of the proposed amendments set forth in telegram Delga 254. (315.3/11–1754)↩