454

DISSENTING OPINION OF JUDGE SCHWEBEL

SUMMARY

In view of the provisions of the Statute of the Court and the Statute of
the Administrative Tribunal, the Court is competent to answer the ques-
tion on which its Advisory Opinion is requested (Chap. I). To do so
adequately, it must pass upon the merits of the judgement of the Admin-
istrative Tribunal in the case of Mortished v. the Secretary-General of the
United Nations. Judging its merits would be consistent with the Court’s
Statute, the terms of Article 11 of the Tribunal’s Statute (paras. 8-10 of this
dissenting opinion) and with the travaux préparatoires of Article 11 (pa-
ras. 11-30). Those terms and travaux préparatoires indicate that, when an
objection to a judgement of the Tribunal has been lodged on the ground of
error on a question of law relating to Charter provisions, the Court is to
act as an appellate jurisdiction, passing upon the merits of the Tribunal’s
judgement. Such error need only “relate to” Charter provisions and need
not directly contravene them. In view of the tenor of the travaux prépa-
ratoires, there even is ground for concluding that the Court is entitled to
consider whether the Tribunal’s judgement contains error in the interpre-
tation of the Staff Regulations which derive from a Charter provision,
Article 101 (1) (paras. 11-30). The Court’s interpretation of the Statutes of
the ILO and United Nations Administrative Tribunals in the Unesco
Officials and Fasla cases is consonant with these conclusions (paras. 31-
38).

In order to appraise the merits of the Tribunal’s judgement, the origins
and development of the repatriation grant must be reviewed. They
demonstrate that the grant was never meant by the organs that proposed or
approved or maintained it to be given to staff members who remain in the
country of their last duty station (Chap. Il). This is shown both by the
terms of the Staff Regulations and the relevant discussions in the General
Assembly and other bodies over the years (paras. 40 ff). While in practice
the United Nations appears to have paid repatriation grants to non-
relocating staff from an early if uncertain date, the General Assembly may
not have been informed of this departure of practice from principle before
1976. It was informed of other variations in the administration of the grant
and made consequential changes in the governing texts, a process which
suggests that the General Assembly did not mean to permit payment to
non-relocating staff (paras. 47-48, 51). When the practice was first aired in
the General Assembly in 1976, it was criticized (para. 52). When the
practice was thereafter re-examined by the International Civil Service

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Commission, it was found to be contrary to the stated purpose of the grant
and unjustifiable (paras. 54-55). In 1978, the General Assembly accord-
ingly adopted resolution 33/119, which decided that payment of the
repatriation grant shall be made conditional upon the presentation of
evidence of actual relocation, subject to the Commission’s establishing the
terms of presentation of that evidence (paras. 58-59). Instead, the Com-
mission recommended exempting staff members from the reach of reso-
lution 33/119 in so far as they had accrued credit towards the repatriation
grant before 1 July 1979 (paras. 60-61). The Commission in so doing relied
on an opinion of the United Nations Office of Legal Affairs (paras. 62-64).
Thereupon the Secretary-General issued a transitional rule which did so
exempt serving staff members from the application of resolution 33/119
(para. 67). The General Assembly reacted adversely to the Commission’s
recommendation and the Secretary-General’s action, and, in so doing,
demonstrated an emphatic intent to overrule the Secretary-General’s tran-
sitional rule by its adoption of resolution 34/165, an exercise of its
authority under Article 101 (1) of the Charter to regulate staff relations
(paras. 68-89). The Secretary-General thereupon deleted the transitional
rule, and thereafter declined to pay the repatriation grant to Mortished, a
non-relocating staff member, who appealed to the Administrative Tribu-
nal.

The Administrative Tribunal held that the Secretary-General’s refusal
to pay the grant to Mortished injured him in disregard of his acquired
rights. It ordered that Mortished be paid compensation for that injury in
an amount equalling the repatriation grant. The Tribunal so concluded on
the following grounds, none of which, it is submitted, are well-founded
(Chap. III).

First, the United Nations had assumed special, contractual obligations
towards Mortished in respect of the grant (para. 92). But the United
Nations demonstrably assumed no contractual obligations whatsoever
towards Mortished that bear on the question of whether he is entitled to
receive the grant regardless of relocation, so this ground of the Tribunal’s
judgement is baseless (paras. 93-98). That conclusion is reinforced by an
examination of the relevant jurisprudence of the Tribunal (paras. 99-105).
That jurisprudence also shows that the United Nations is free to amend the
regulatory régime governing the status of staff members as long as it does
so in “statutory” terms of general application which do not trench upon the
vital contractual, and hence acquired, rights of staff members.

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Second, the Tribunal raised a question about whether the Secretary-
General’s deletion of the transitional rule retroactively effaced an entitle-
ment of Mortished. It appears to assume an answer to this question rather
than to present reasons justifying that assumption (para. 111). It also
raised the question about whether nearly 30 years of practice “could gen-
erate an acquired right within the meaning of Staff Regulation 12.1” but
found that “it is not required to adjudicate that question in abstracto”
(para. 106).

Third, the Tribunal held that the repatriation grant was “earned” over
the years and thus constitutes an entitlement of which Mortished could not
‘be deprived without impairing his acquired rights (para. 113). That con-
clusion is based largely on the fact that the amount of the repatriation grant
is calculated according to length of service. However, the drafting history
of the repatriation grant shows that it was not meant to be a salary
supplement progressively earned, but an end-of-service payment no more
earned than is a termination indemnity. The years of continuous service
which are a basis for calculating the amount of, but not entitlement to, the
grant are subject to reduction or elimination, and the staff member may
lose the whole of the repatriation grant on other grounds. It is thus clear
that the grant is not “earned” and that entitlement is dependent upon
compliance with eligibility rules at the time of separation from service. The
length of a staff member’s service is simply a convenient formula for
calculating the amount of the grant. (Paras. 114-117.)

Fourth, the Tribunal held that the transitional rule of itself is the source
of Mortished’s acquired rights (para. 118). While this approach is argu-
able, it is not persuasive. Under the Statute of the Tribunal and its juris-
prudence, an entitlement such as the repatriation grant may be exercised
only in accordance with the conditions governing it as of the time its
exercise is sought. Mortished sought to rely on the transitional rule when it
was no longer in force. Moreover, he could be deprived of any entitlement
under that transitional rule by “statutory amendment”, which was pre-
cisely what resolution 34/165 required. (Paras. 119-124.)

The judgement of the Administrative Tribunal actually failed to give
immediate effect to resolution 34/165 (para. 135). The justifications for
the Tribunal’s treatment of resolution 34/165 do not withstand analysis
(paras. 132-134, 136-141). The Tribunal’s judgement exceeded its juris-
diction by depriving resolution 34/165 of its regulatory effect under
Article 101 (1), contrary to the resolution’s terms and the demonstrated
intent of the General Assembly (paras. 142-147), an intent which the
Tribunal misconstrues (paras. 69-90, 109). The failure of the Tribunal to
give immediate effect to resolution 34/165 also constituted, on several
counts, error on questions of law relating to provisions of the United
Nations Charter, most notably Article 101 (1) (paras. 147-152). The Tri-
bunal’s unfounded findings about Mortished’s acquired rights did not

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give it an authority it otherwise lacks to set aside resolution 34/165
(paras. 153-155).

1. I regret that I am unable to concur in the Opinion of the Court,
essentially on two grounds. First, I take a broader view than does the Court
of its competence to review the merits of a judgement of the United
Nations Administrative Tribunal. Second, I find the judgement of that
Tribunal in the case of Mortished v. the Secretary-General of the United
Nations profoundly unpersuasive. In my view, that judgement did de-
termine — in substance, though not in terms — that General Assembly
resolution 34/165 could not be given immediate effect in requiring, for the
payment of repatriation grants, evidence of relocation to a country other
than the country of the staff member’s last duty station. In so determining,
the Administrative Tribunal erred on questions of law relating to provi-
sions of the Charter of the United Nations, and exceeded its jurisdic-
tion.

I. THE COMPETENCE OF THE COURT

2. The competence of the International Court of Justice to review a
judgement of the United Nations Administrative Tribunal is founded on
the relevant provisions of the Statute of the Court and the Statute of the
Administrative Tribunal. The construction which the Court has given in
earlier cases to the pertinent provisions of both Statutes, and to the ana-
logous but distinct Statute of the Administrative Tribunal of the Interna-
tional Labour Organisation, has particular significance for the interpre-
tation of the extent of the Court’s authority in this case. The Court’s
construction of the Statute of the United Nations Administrative Tribunal
took account of the travaux préparatoires, for they shed light on what the
General Assembly intended when it amended the Statute of the Tribunal
to invest the Court with its review authority. Just as the Court, in the first
case which applied the amended Statute in a review of a judgement of the
United Nations Administrative Tribunal, looked to the legislative history
of the governing amendment, so in this case as well the Court should look
to that legislative history (a point which the Court, in paragraph 63 of its
Opinion, implicitly concedes, in referring to the “compromise” underlying
the amended Statute of the Tribunal). It should scrutinize it in sufficient
depth so as to afford the Court the full extent of the jurisdiction which,
consonant with the Court’s Statute, the General Assembly intended the
Court to have.

1. The Provisions of the Statute of the Court and the Court’s
Judicial Character

3. The Court succinctly summarized the broad considerations which
govern a case of this kind, and applied the most pertinent provision of its

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Statute, in the Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973,
pages 171-172 (hereafter referred to as the “Fas/a case”) where it held :

“14. As to the Court’s competence to give the opinion, doubts have
been voiced regarding the legality of the use of the advisory jurisdic-
tion for the review of judgements of the Administrative Tribunal. The
contentious jurisdiction of the Court, it has been urged, is limited by
Article 34 of its Statute to disputes between States ; and it has been
questioned whether the advisory jurisdiction may be used for the
judicial review of contentious proceedings which have taken place
before other tribunals and to which individuals were parties. However,
the existence, in the background, of a dispute the parties to which may
be affected as a consequence of the Court’s opinion, does not change
the advisory nature of the Court’s task, which is to answer the ques-
tions put to it with regard to a judgment. Thus, in its Opinion con-
cerning Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco U.C.J. Reports 1956, p.77), the
Court upheld its competence to entertain a request for an advisory
opinion for the purpose of reviewing judicial proceedings involving
individuals. Moreover, in the earlier advisory proceedings concerning
the Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal (I.C.J. Reports 1954, p. 47) the Court replied
to the General Assembly’s request for an opinion notwithstanding the
fact that the questions submitted to it closely concerned the rights of
individuals. The Court sees no reason to depart from the position
which it adopted in these cases. If a request for advisory opinion
emanates from a body duly authorized in accordance with the Charter
to make it, the Court is competent under Article 65 of its Statute to
give such opinion on any legal question arising within the scope of the
activities of that body. The mere fact that it is not the rights of States
which are in issue in the proceedings cannot suffice to deprive the
Court of a competence expressly conferred on it by its Statute.”

4. It will be observed that the Court saw no problem in its advisory
jurisdiction being used for the review of contentious proceedings to which
individuals were parties which had taken place before another tribunal.
The fact that the Court’s opinion would affect such parties to a dispute
does not change the advisory nature of the Court’s task, which the Court
described in straightforward terms : “to answer the questions put to it with
regard to a judgment”. The Court so held while also holding that “the
opinion given by the Court is to have conclusive effect with respect to the
matters in litigation in that case” (ibid., at p. 182), i.e., in the case on which
the Administrative Tribunal had rendered judgment. The Court con-
tinued :

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“Such an effect, it is true, goes beyond the scope attributed by the
Charter and by the Statute of the Court to an advisory opinion. It
results, however, not from the advisory opinion itself but from a
provision of an autonomous instrument having the force of law for the
staff members and the Secretary-General. Under Article XII of the
Statute of the ILO Administrative Tribunal the Court’s Opinion is
expressly made binding. In alluding to this consequence the Court, in
the Unesco case, observed:

‘It in no wise affects the way in which the Court functions ; that
continues to be determined by its Statute and its Rules. Nor does it
affect the reasoning by which the Court forms its Opinion or the
content of the Opinion itself. Accordingly, the fact that the Opinion
of the Court is accepted as binding provides no reason why the
Request for an Opinion should not be complied with” (1 CJ.
Reports 1956, p. 84.)

Similarly, the special effect to be attributed to the Court’s opinion
by Article 11 of the Statute of the United Nations Administrative
Tribunal furnishes no reason for refusing to comply with the request
for an opinion in the present instance.” U.C.J. Reports 1973, pp. 182-
183.)

5. Equally, in the instant case, the Court should “answer the questions
put to it with regard to a judgement” of the Administrative Tribunal. It
should not be deterred by the fact that its answers bind the Secretary-
General and the Administrative Tribunal pursuant to the terms of Arti-
cle 11 of the Tribunal’s Statute, which purposefully, repeatedly and con-
clusively prescribe that the Secretary-General or the Tribunal shall act “in
conformity with the opinion of the Court”. (That binding effect is infer-
entially confirmed by Article 10 (2) of the Tribunal’s Statute : “Subject to
the provisions of Articles 11 and 12, the judgements of the Tribunal shall be
final and without appeal.” (Emphasis supplied.)) It should not be deterred
by differences about whether, when it reconsiders a judgement of the
United Nations Administrative Tribunal, it acts as a court of appeal, of
cassation or of more limited review authority. It should not be deterred by
the claim that its lack of “appellate” powers prevents it from examining
and disposing of the merits of the Tribunal’s judgement — in so far as
answering the questions put to the Court requires such examination and
disposition. Nor should it be deterred by the claim that the Court is limited
to passing upon “constitutional” questions, a limitation expressed neither
in its Statute nor that of the Tribunal.

6. There is nothing in the Charter of the United Nations or in the Statute
of the Court — or in the standing, station or dignity of the Court — that

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prevents it from dealing with the merits of a judgement of the United
Nations Administrative Tribunal. There is nothing inherent in the judicial
processes of the Court that so prevents it. If, as in the instant case, those
processes ensure equality between the United Nations and Mortished in
the proceedings before the Court, that suffices. “The Court may give an
advisory opinion on any legal question at the request of whatever body
may be authorized by or in accordance with the Charter of the United
Nations to make such a request” (Statute of the Court, Art. 65 (1)). If, as is
the case in respect of Mortished v. the Secretary-General, the Court’s
advisory opinion is sought on a “legal question”, by a body which has been
authorized in accordance with the Charter to make such a request, the
Court should, as in the Fas/a case, simply “reply to the questions put to it
regarding the objections which have been raised to the Judgement of the
Administrative Tribunal” (.C.J. Reports 1973, p. 182). It should not find
reasons why not to reply which are neither required by its Statute nor
justified by the Statute of the Administrative Tribunal. It is to be regretted
that, in the instant case, that is exactly what the Opinion of the Court does
(see paras. 57-65).

7. Of course, the particular extent of the Court’s competence to review
judgements of the administrative tribunals is determined by the terms of
the statutes of those tribunals. It is accordingly necessary in the instant
case to consider closely the pertinent provisions of the Statute of the
United Nations Administrative Tribunal. At the same time, that Statute
and the Court’s authority under its Statute should be interpreted in the
light of the accepted jurisprudence of the Court, in which it

“has repeatedly stated that a reply to a request for an advisory opinion
should not, in principle, be refused and that only compelling reasons
would justify such a refusal (see, e.g., Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco, Advisory
Opinion, I.C.J. Reports 1956, p. 86 ; Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opin-
ion, ILCJ. Reports 1971, p. 27)’. (LCJ. Reports 1973, p. 183.)

It is submitted that the meaning for present purposes of this axiomatic
holding is that the Court should answer the question or questions asked of
it ~ not, obviously, necessarily providing the answers which the requesting
body may be thought to seek, but providing substantive answers to the
questions posed. It does not comport with the Court’s jurisprudence for it
to acknowledge that only compelling reasons would justify the Court’s
refusal to reply to a request for an advisory opinion and then to offer a
reply which finds questionable reasons for not answering the substance of
the questions put to it. Among such questionable reasons, it is submitted,
are holdings that the Court lacks “appellate” authority and that it is
confined to disposing of “constitutional” objections to a judgement of the

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United Nations Administrative Tribunal (see, in this regard, paras. 57-65
of the Court’s Opinion in this case). It is true that, in its Advisory Opinion
in the Namibia case, the Court recorded and held that :

“It was argued that the Court should not assume powers of judicial
review of the action taken by the other principal organs of the United
Nations without specific request to that effect, nor act as a court of
appeal from their decisions.

89. Undoubtedly, the Court does not possess powers of judicial
review or appeal in respect of the decisions taken by the United
Nations organs concerned.” (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opin-
ion, IL.C.J. Reports 1971, p. 45.)

But that is by no means to say that, where the Court is entrusted with
specific review authority not in respect of a principal organ of the United
Nations but of its Administrative Tribunal, it lacks powers of “judicial
review or appeal”. On the contrary, as that passage of the Court’s opinion
imports, where, as in the instant case, the Court is specifically entrusted
with powers of judicial review or appeal in respect of decisions taken by the
United Nations Administrative Tribunal, it should exercise those powers.
For the reason stated in this paragraph, it should exercise those powers to
the full.

2. The Provisions of the Statute of the Administrative Tribunal

A. The terms of those provisions

8. What are the powers of judicial review of the Court as they are set out
in the Statute of the United Nations Administrative Tribunal ? Article 11
(1) of the Statute provides :

“If a Member State, the Secretary-General or the person in res-
pect of whom a judgement has been rendered by the Tribunal...
objects to the judgement on the ground that the Tribunal has exceeded
its jurisdiction or competence or that the Tribunal has failed to exer-
cise jurisdiction vested in it, or has erred on a question of law relating
to the provisions of the Charter of the United Nations, or has com-
mitted a fundamental error in procedure which has occasioned a
failure of justice, such Member State, the Secretary-General or the
person concerned may, within thirty days from the date of the judge-
ment, make a written application to the Committee established by
paragraph 4 of this article asking the Committee to request an advi-
sory opinion of the International Court of Justice on the matter.”

Thus the Statute specifies four grounds on which objection to a judgement
of the Administrative Tribunal may be founded. Two of those grounds are

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pertinent to the case before the Court, since those are the grounds on
which, as the transcript of its proceedings makes clear, the Committee on
Applications for Review of Administrative Tribunal Judgements relied in
requesting an advisory opinion of the Court: excess of jurisdiction or
competence, and error on a question of law relating to the provisions of the
Charter of the United Nations. The principal focus of the Committee’s
concern was error of law ; in deciding that “there is a substantial basis” for
the application to the Committee not only on that ground but also on the
ground that the Administrative Tribunal had exceeded its jurisdiction or
competence, the Committee nevertheless gave primary emphasis to the
submission that the Tribunal had erred on a question of law relating to the
provisions of the Charter. That emphasis will be followed in this dissenting
opinion as it is in the Court’s Opinion, for the judgment of the Adminis-
trative Tribunal at bar particularly poses that issue. At the same time, in
this case the two grounds of error of law and excess of jurisdiction are
inextricably linked. The terms of the two grounds of objection as they
appear in Article 11 (1) will initially be the subject of comment ; then they
will be analysed in the light of their travaux préparatoires.

9. Onits face, the ground that the Tribunal “exceeded its jurisdiction or
competence” requires only brief comment. The jurisdiction or competence
of the Tribunal is set forth in its Statute, largely in Article 2, which in
pertinent part states :

“1. The Tribunal shall be competent to hear and pass judgement
upon applications alleging non-observance of contracts of employ-
ment of staff members of the Secretariat of the United Nations or of
the terms of appointment of such staff members. The words ‘con-
tracts’ and ‘terms of appointment’ include all pertinent regulations
and rules in force at the time of alleged non-observance, including the
staff pension regulations.

3. In the event of a dispute as to whether the Tribunal has com-
petence, the matter shall be settled by the decision of the Tribu-
nal.”

Provided that the Tribunal passes judgment upon an application alleging
non-observance of a contract of employment or terms of appointment of a
staff member, it acts, prima facie, within its competence. However, that
broad statement is subject to two qualifications of vital import for this
case. First, “the words ‘contracts’ and ‘terms of appointment’ include all
pertinent regulations and rules in force at the time of alleged non-observ-
ance ...”. Second, there is nothing in the Statute of the Administrative
Tribunal to suggest that its competence extends so far as to authorize it to
determine that a resolution of the General Assembly regulating the con-
ditions of service of the Secretariat shall not be given immediate effect if
the General Assembly intends it to have that effect.

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10. The meaning of the clause respecting error on a question of law
relating to the provisions of the Charter also calls for comment. It should
be observed that this ground specifies “error on a question of law”, which
suggests that it excludes error on a question of fact. Furthermore, error on
a question of law is qualified by the phrase, “relating to” provisions of the
Charter. That is to say, an error of the Tribunal need not squarely and
directly engage a provision of the Charter. It is sufficient if an error is “in
relationship to” the Charter, “has reference to” the Charter or “is con-
nected with” the Charter. (See the definitions found in Webster’s Third
New International Dictionary, Unabridged, 1976, p. 1916.) The phrase “the
provisions” of the Charter clearly cannot mean all the provisions of the
Charter, because no error of the Administrative Tribunal could possibly
relate to all the provisions of the Charter ; that phrase must mean, “one or
more provisions” of the Charter. But an error, if it is to furnish ground for
objection to ajudgment of the Tribunal, must have a relationship to or be
connected with at least one provision of the Charter.

B. The travaux préparatoires of those provisions
(i) Justification for recourse to preparatory work

11. The true meaning of the terms of Article 11 (1) of the Statute of the
Administrative Tribunal (and thus a proper appreciation of the scope of
the review authority accorded the Court by that Article) can be best
understood in the light of their travaux préparatoires. Thus in this case the
Court should do exactly as it has done in prior cases in which the meaning
of a treaty or legislative text has been at issue : examine the preparatory
work which gave rise to it. If it be objected that resort to this supplementary
means of interpretation is justified only where the text is not clear, it is
submitted that the text’s lack of clarity is sufficiently shown by the dif-
ferences about its interpretation which are demonstrated as between the
Court’s Opinion and dissenting opinions in this case. More than this, it is
instructive to recall that in the case of the Court closest to the case at bar,
the Fasla case, the Court at three points recounts the need for resort to the
travaux préparatoires to elucidate the meaning of Article 11 (1) of the
Statute of the Administrative Tribunal. It points out that, “Although the
records show that Article 11 was not introduced into the Statute of the
Administrative Tribunal exclusively, or even primarily, to provide judicial
protection for officials . . (I. C.J. Reports 1973, p. 183). It concludes that,
“both the text of Article 11 and its legislative history make it clear that
challenges to Administrative Tribunal Judgements under its provisions
were intended to be confined to the specific grounds of objection men-
tioned in the Article” (ibid, p. 188). And it goes back to the recommen-
dations of the Committee which prepared the draft of Article 11 and to the

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deliberations over that draft in the Fifth Committee of the General
Assembly to state the following :

“50. Article XII of the Statute of the ILO Administrative Tribunal
speaks only of a challenge to ‘a decision of the Tribunal confirming its
jurisdiction’, and does not make any mention of a failure of the
Tribunal to exercise its jurisdiction. Similarly, in the draft of Article 11
of the United Nations Administrative Tribunal’s Statute recom-
mended to the General Assembly by the Special Committee on
Review of Administrative Tribunal Judgements, a challenge on this
ground was contemplated only if the Tribunal had ‘exceeded its
jurisdiction or competence’. The words ‘or that the Tribunal has failed
to exercise jurisdiction vested in it’ were added at the 499th meeting of
the Fifth Committee on the proposal of the Indian delegation, .. .

... It further appears that in accepting failure to exercise jurisdic-
tion as an additional ground of challenge the General Assembly
regarded it as euisdem generis with cases where the Tribunal had
exceeded its jurisdiction or competence ; and the Fifth Committee
thus seems to have viewed both excess and failure in the exercise of
jurisdiction as essentially concerned with matters of jurisdiction or
competence in their strict sense. In a more general way, the compar-
atively narrow scope intended to be given to failure to exercise juris-
diction as a ground of challenge is confirmed by the legislative history
of Article 11, which shows that the grounds of challenge mentioned in
the Article were envisaged as covering only ‘exceptional’ cases.”
(C.J. Reports 1973, p. 189.)

In the light of the Court’s repeated and detailed resort in the Fasla case to
the travaux préparatoires of the very article at issue in the instant case,
scrutiny of that same body of preparatory work is especially appropriate in
this case.

(ii) The Court suggests judicial review of Administrative Tribunal Judge-
ments

12. The amendments to the Statute of the Administrative Tribunal
which are found in Article 11 appear to have been stimulated by the
Court’s Advisory Opinion on the Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal, I.C.J. Reports 1954, p. 56,
where the Court, in addressing the possibility of review of judgements of
the Administrative Tribunal, declared :

“In order that the judgments pronounced by such a judicial tribunal
could be subjected to review by any body other than the tribunal itself,
it would be necessary, in the opinion of the Court, that the statute of
that tribunal or some other legal instrument governing it should con-

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tain an express provision to that effect. The General Assembly has the
power to amend the Statute of the Administrative Tribunal by virtue
of Article II of that Statute and to provide for means of redress by
another organ. But as no such provisions are inserted in the present
Statute, there is no legal ground upon which the General Assembly
could proceed to review judgments already pronounced by that Tri-
bunal. Should the General Assembly contemplate, for dealing with
future disputes, the making of some provision for the review of the
awards of the Tribunal, the Court is of opinion that the General
Assembly itself, in view of its composition and functions, could hardly
act as a judicial organ — considering the arguments of the parties,
appraising the evidence produced by them, establishing the facts and
declaring the law applicable to them — all the more so as one party to
the disputes is the United Nations organization itself.”

It will be observed that the Court spoke in 1954 of “review” of judgements
and awards of the Administrative Tribunal and of the provision of “means
of redress”. It spoke of the functions of a reviewing judicial organ (which it
rightly said the General Assembly is not) in broad terms : considering the
arguments, appraising the evidence, establishing the facts and declaring
the law.

(ii) The General Assembly takes up the Court’s suggestion

13. That very year, the General Assembly took up the Court’s sugges-
tion, resolving that it : “Accepts in principle judicial review of judgements
of the United Nations Administrative Tribunal.” (Res. 888 (IX).) The text
of the resolution in question initially spoke of the establishment of a
procedure for “appeals against” instead of “review of” the Tribunal’s
judgements. In introducing an amendment (which was accepted) to sub-
stitute the term “review of”, the delegate of Canada, speaking in plenary
session on behalf of the co-sponsors, stated :

“Members are aware that ‘review’ is a broader term which would
include appeals and other judicial procedures.

12. The object of this change, therefore, ... is not to limit the
special committee to the consideration of only one specific form of
judicial review.” (United Nations, General Assembly Official Records,
Ninth Session, 515th Plenary Meeting, p. 542, paras. 11-12.)

Resolution 888 (IX) requested member States to communicate their views
“on the establishment of procedure to provide for review of judgements of
the Administrative Tribunal” and established a Special Committee on
Review of Administrative Tribunal Judgements (hereafter referred to as
“the Special Committee”) to study the question of the establishment of
such a procedure in all its aspects.

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(iv) The report of the Secretary-General on review procedures

14. The Secretary-General assisted the Committee by submitting to it a
set of memoranda and working papers. (See United Nations, General
Assembly Official Records, Tenth Session, Annexes, Agenda Item 49:
Report of the Special Committee on Review of Administrative Tribunal
Judgements, Annex II, pp. 17 ff.) He recalled the history of the adoption of
the then existing and still current provision of Article XII of the Statute of
the ILO Administrative Tribunal, which the International Labour Office
described as a means for “appeal” to the International Court of Justice
(p. 19). The Secretary-General noted that, in supporting adoption of this
provision by the ILO, the Director General of the International Labour
Office “explained that the article did not propose that the International
Court of Justice should re-try a case, but merely that it could be asked to
define the jurisdiction of the Tribunal” (ibid, p. 19).

15. On the scope of the review and powers of the reviewing body of
the United Nations Administrative Tribunal, the Secretary-General saw
essentially three possibilities :

“(a) the review of all aspects of the case,

(b) the review of the law only, and

(c} the review of certain legal issues, such fot example as the question
of lack of jurisdiction or fundamental defect in procedure” (ibid.
p. 22).

As to (a), the Secretary-General submitted that a review of all aspects of
the case

“would without doubt lead to a great number of unwarranted appeals,
and thus would needlessly increase the burden of litigation. There
would seem to be no good reason why the findings of fact by the
Administrative Tribunal should not be conclusive.” (Ibid.)

As to (b) the Secretary-General stated :

“A review of the law would include the interpretation of the Staff
Regulations and the Staff Rules as well as other provisions of the
contract and general principles of law which might be involved. It
would include the interpretation of relevant provisions of the United
Nations Charter.” (Ibid.)

As to (c), the Secretary-General noted :

“Finally, there is the possibility of providing only for the review of
certain important legal issues. Article XII of the Statute of the ILO
Administrative Tribunal is an example of this alternative. Under this

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article the International Court of Justice may be asked for an advisory
Opinion with respect to two types of questions : (a) lack of jurisdiction
of the Tribunal, and (b) fundamental fault in the procedure followed.”
(Ibid)

16. Turning to the possibility of review by the International Court of
Justice, the Secretary-General submitted that advisory proceedings might
be suitable for the review of certain legal questions in determining the
validity of a judgement as is provided by the Statute of the [LO Admin-
istrative Tribunal. However, he believed that if a “broader scope of review
were desired”, it might be difficult to fit into advisory proceedings :

“A re-examination of the merits of the case might involve matters
which are not strictly legal questions within the meaning of Article 65
of the Statute of the Court, and might also require more active par-
ticipation of the parties in the proceedings than would be considered
permissible by the Court. Advisory proceedings would probably not
be appropriate for such re-examination which might even be consid-
ered incompatible with the Statute of the Court.” (bid. p. 24.)

By his reference to Article 65 of the Statute, the Secretary-General seemed
to suggest that, while it is appropriate to put “any legal question” to the
Court in advisory proceedings, it would not be appropriate to put to the
Court questions of fact, 1.e., matters which “are not strictly legal ques-
tions”. He concluded :

“There is probably no absolute line between a review for which
advisory proceedings would be possible and one for which they would
not. Individual proposals which may be made would have to be
examined in the light of the Statute of the Court and the nature of
advisory proceedings.” (Ibid.)

17. The Secretary-General transmitted the views of the United Nations
Staff Council, which maintained that “only important questions of law
which touch upon matters of principle should constitute ground for
review” (ibid., p. 32). The Staff Council submitted that : “The scope of the
review should not include questions of fact ; the findings of fact by the
Administrative Tribunal should be conclusive.” {Ibid.)

(v) The meetings and report of the Special Committee

18. The Report of the Special Committee on Review of Administrative
Tribunal Judgements is revealing, anticipating as it does questions which
have been debated in the current case. Thus as to the meaning of “judicial
review”, it declares :

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“11. With respect to the meaning of ‘judicial review’ as used in
General Assembly resolution 888 (IX), two possible interpretations
were mentioned. On the one hand, it might be considered that the
phrase referred purely to an appeals procedure in which the parties to
the original action could seek reconsideration of the case or certain of
its aspects before an appellate body. On the other hand, ‘judicial
review’ could also be taken to refer to a procedure other than an
appeals procedure in the technical sense of the term. It was pointed out
that the draft text of resolution 888 (IX)... had been amended in the
General Assembly . .. by replacing the words ‘appeals against’ by the
words ‘review of”. The intention of the amendment’s sponsors had
been to use a broader term which embraced appeals and other judicial
procedures. It was the view of the majority of the members that the
Committee could consider as judicial review either an appeals proce-
dure in the narrow sense of the term or some other kind of review
procedure which satisfied judicial requirements such as, for example,
review of legal questions through the advisory procedure of the Inter-
national Court of Justice.” (Report of the Special Committee, loc. cit.

pp. 3-4.)

19. The Special Committee based its general discussion on the Secre-
tary-General’s working paper. On the scope of the power of review to be
accorded the organ of review, the Committee’s report records :

“The members of the Committee were in general agreement that
review should be limited to exceptional cases, and further, that there
should be no complete review of all aspects of the case, in particular
that there should not be a review of questions of fact as such. There
was considerable variation of opinion, however, among the members
of the Committee as to the exact grounds for which a review should be
provided. One body of opinion held that review should be on all
questions of law, whereas another maintained that it should be con-
fined to the two grounds specified in Article XII of the ILO Statute of
the Administrative Tribunal, namely, questions of jurisdiction and of
fundamental defect in procedure. Positions in between these two
views were also taken.” (Ibid.)

The report adds that the US representative, when arguing that member
States should be empowered to request activation of the review procedure,
Stated :

“On important questions involving the interpretation or application
of the Charter or the staff regulations, the views of Members should
receive a full hearing and consideration.” (Zbid., p. 7 ; emphasis sup-
plied.)

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20. In its analysis of the specific proposals advanced on the scope of the
review power, the report contains the following :

“The proposal of France ... and the suggestions of the Secretary-
General . . . would limit the grounds for review to those stipulated in
article XII of the Statute of the ILO Administrative Tribunal . . . there
should be no retrial of the facts, nor of points of law generally.

The proposal of China, Iraq and the United States of America...
defined the scope of review as ‘important legal questions raised by
the judgement’ and provided for a committee to decide whether
the questions were of such importance as to warrant judicial re-
view ...

The fundamental difference among these proposals with respect to
the scope of review was, on the one hand, that the review should be
strictly limited to the two grounds specified in the Statute of the ILO
Tribunal and, on the other that it should cover all important questions
of law.” (bid. p. 8.)

21. In an effort to bridge the foregoing differences, a joint compromise
proposal was made by China, Iraq, Pakistan, the United Kingdom and the
United States. In “clarification of the text” of the proposal, the British
representative, Sir Vincent Evans (then the legal adviser of the British
Mission to the United Nations, later the Legal Adviser of the Foreign and
Commonwealth Office) explained, on behalf of the co-sponsors, the fol-
lowing. (Since this explanation is so important it is quoted not from the
condensed report of the Committee but from the fuller summary record of
its discussions.) The International Court of Justice, he specified, would
have a scope of review authority limited “to three precise grounds” :

“The first and third were substantially the same as those in Arti-
cle XII of the Statute of the ILO Administrative Tribunal, on which
there appeared to be general agreement in the Committee. The second
ground, while attempting to meet half-way those representatives who
favoured the inclusion of any substantial question of law as a ground
for review, provided a safeguard against the danger that review might
become a matter of course in all cases. It attempted to define with
maximum precision what questions of law could be grounds for
review. The words ‘relating to the provisions of the Charter’ covered not
only interpretations of the provisions of the Charter but also the inter-
pretation or application of staff regulations deriving from Chapter XV of
the Charter.” (A/AC.78/SR.10, p. 3 ; emphasis added.)

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22. The representative of the United States followed, stating :

“(2) The adequacy of the joint draft with respect to the scope of the
screening committee’s authority to call for an advisory opinion had
been a matter of serious doubt to his delegation, which still felt that
there was great merit in the arguments in favour of the possibility of
review of legal questions generally and of excessive awards, regardless
of particular grounds or merits. (3) However, as a conciliatory gesture,
his Government had decided to support the joint proposal. (4) His
Government understood the second ground mentioned in para-
graph | to include (a) a question under Article 101 of the Charter
whether the Secretary-General’s judgment should be upheld with
regard to the conduct of a staff member under United Nations stan-
dards of efficiency, competence and integrity ; (b) a question under
Article 97 whether the Secretary-General’s action in giving directions
to or taking disciplinary action against a staff member should be
sustained ; (c) a question under Article 100 involving a staff member’s
duty to refrain from any action which might reflect on his position as
an international civil servant responsible only to the Organization.”
({bid., pp. 5-6 ; emphasis supplied.)

23. Reception of the compromise proposal was mixed. It was acknow-
ledged on all sides that, under the joint compromise proposal, the advisory
opinion of the Court would be binding on the parties to the Administrative
Tribunal proceedings (an understanding later repeated in the Fifth Com-
mittee). But a substantial minority of the Committee questioned the pro-
priety of the Court so settling a dispute between the United Nations and a
staff member ; 1t opposed a member State being empowered to seek such
judicial review ; and it maintained that the proposed screening committee
would not be properly composed to carry out its functions. On the imme-
diate question of the extent of the review authority to be given to the Court,
relatively little was said. The Australian representative, who believed that
the review body should be a judicial body other than the International
Court of Justice, found, “The grounds for review provided for in the joint
draft were too restrictive” (A/AC.78/SR.11, p. 6). The Pakistani co-
sponsor submitted that the proposal should “be construed strictly, in a way
consistent so far as possible with the spirit of Article XII of the Statute of
the Administrative Tribunal of the ILO” (ibid. p. 6). The representative of
China associated himself with the opinions expressed by the representative
of the United Kingdom. He supported inclusion of the proviso on an error
of law relating to provisions of the Charter, “for an earlier decision of the
Administrative Tribunal had been open to criticism on that score. The
Chinese delegation attached a great deal of importance to Article 101,
paragraph 3, of the Charter.” (Ibid, p. 7.) The Chairman, speaking as the

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representative of Cuba, said his delegation would vote for the joint draft
because it favoured both the limitations of the scope of review and the
grant of the right to intervene to member States (ibid.). The delegate of
Israel had no objection to the scope of the review as provided for in the
joint proposal (A/AC.78/SR.12, p. 3). The delegate of Iraq explained that
he voted for the joint proposal even though his delegation would have
preferred a broader scope of review (ibid. p. 7).

24. No other delegate to the Special Committee commented on the
question of the scope of review to be accorded to the Court. It will be
observed that no one directly differed with the meaning attached by Sir
Vincent Evans to the phrase, “relating to the provisions of the Charter” ;
his interpretation apparently was left intact. However, the report of the
Special Committee does not exactly reproduce his words. While, in Com-
mittee, Sir Vincent specified that the intention of the co-sponsors in using
this phrase was to cover “not only interpretations of the provisions of the
Charter but also the interpretation or application of staff regulations
deriving from Chapter XV of the Charter”, the report of the Committee on
this key point reads as follows :

“The co-sponsors intended by the phrase : ‘a question of law relat-
ing to the provisions of the Charter’ to provide for a case not only
where the Administrative Tribunal might be considered to have misin-
terpreted the Charter, but also where the Tribunal might have inter-
preted and applied the Staff Regulations in a manner considered to be
inconsistent with the provisions of Chapter XV of the Charter.” (Re-
port of the Special Committee, loc. cit., p. 10.)

(vi) Consideration by the Fifth Committee

25. Consideration by the Fifth Committee of the Report of the Special
Committee confirmed what the Report of the Special Committee made
clear : that error “on a question of law relating to the provisions of the
Charter of the United Nations” was not confined only to error relating to
the Charter itself but also embraced error in interpretation or application
of the Staff Regulations. Nevertheless, the Fifth Committee’s debate and
its resultant report does not wholly settle the scope of this ground of
objection to a judgement of the Administrative Tribunal.

26. In speaking at the outset of the debate, the representative of the
United Kingdom stated :

“With regard to the scope of review, it had been generally agreed
that there should be no review on questions of fact and that, as the
Secretary-General himself had suggested, review should be excep-

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tional only and should not be applied to all cases as a matter of course.
Opinion had been divided, however, on whether the scope of review
should be confined to the two grounds set forth in Article XII of the
Statute of the ILO Tribunal. The recommendation in the report was a
compromise ; it adopted the two grounds in the ILO Tribunal’s Sta-
tute and added a third — alleged error on a question of law relating to
the provisions of the Charter. It had been felt that the third ground was
adequate to cover cases where the Tribunal, in interpreting and
applying some of the Staff Regulations, did so in a manner which
might be considered inconsistent with the provisions of the Charter,
especially of Chapter XV.” (United Nations, General Assembly Offi-
cial Records, Tenth Session, Fifth Committee, 493rd Meeting, p. 36.)

He was followed by the representative of Norway, who opposed the Spe-
cial Committee’s recommendations dealing with the grounds for review,
because “the broad scope of the review proposed” was seemingly at vari-
ance with the objective of limiting review to exceptional cases (ibid., p. 39).
However, the representatives of Cuba and Pakistan maintained that inclu-
sion of the ground of error of law “had been considered necessary in order
to provide for cases in which the Tribunal’s interpretation of the Charter
might be challenged or in which it might be alleged to have interpreted
the Staff Regulations in a manner inconsistent with Chapter XV of the
Charter” (ibid, pp. 39, 48). The representative of the Netherlands
disagreed :

“there would in practice be no limit set to the competence of the
reviewing organ, because a judgement of the Administrative Tribunal
could be challenged on the ground of an error of law relating to the
provisions of the Charter, which was an instrument very wide in its
scope” (loc. cit., 494th Meeting, p. 48).

The representative of Yugoslavia, also opposing the recommendations of
the Special Committee, maintained that “the procedure proposed would
tend to convert the International Court of Justice into a court of appeal for
international administrative tribunals ...” (ibid, p. 49). Others, such as
the representative of Argentina, replied that the procedure would be
invoked

“only in exceptional cases where a Tribunal Judgement was chal-
lenged on clearly specified grounds. The system proposed would
safeguard both staff members and the General Assembly against
future discussion of Tribunal judgements.” ([bid., p. 50.)

The representative of the Philippines maintained that :

“Provision had properly been made in the proposed new article 12

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for applications relating to questions of fact to be referred back to the
Administrative Tribunal itself, whereas under article 11 applications
based on questions of law would be referred to the International Court
of Justice, the highest international judicial organ, thus promoting the
development of a consistent international jurisprudence . . .” (Ibid,

p.51.)

The representative of New Zealand did not object to the proposed scope of
review procedure,

“which would clearly be confined to questions of law. In cases where

_ the Tribunal’s judgements were challenged, the International Court
would be the sole interpreter of the law and in those circumstances it
was certain that no canons of justice would be violated. It also seemed
reasonable that cases coming within the category of an ‘error on a
question of law relating to the provisions of the Charter’ should be
open to review, if any review procedure were established.” (Loc. cit.,
496th Meeting, p. 53.)

However, the representative of Sweden did object :

“Turning to the Special Committee’s recommendation that a review
of an Administrative Tribunal judgement might be sought if that
judgement erred on a question of law relating to the provision of the
Charter, he pointed out that ... such a recommendation would
embrace all the cases enumerated in paragraph 82 of the Special
Committee’s report (A/2909) and would thus cover all the activities of
a member of the United Nations Secretariat.” (Ibid., p. 57.)

The representative of Mexico also preferred limiting the grounds of review
to questions of jurisdiction or procedural error. (/bid, p. 59.)

27. The delegation of India, which earlier had moved to add a fourth
ground of objection to the three proposed by the Special Committee,
namely, failure to exercise jurisdiction, at this stage of the Fifth Commit-
tee’s debate proposed far-reaching amendments to the Special Commit-
tee’s proposals which would have substituted a chamber of the Adminis-
trative Tribunal for the screening committee and the full Administrative
Tribunal for the International Court of Justice. These amendments were
opposed by the co-sponsors of the joint compromise proposal which the
report of the Special Committee embodied. In opposing them, and in
supporting adoption of the compromise proposal, the representative of the
United States maintained that : “it was fitting that the International Court of
Justice should be the final authority on interpretation of the Charter or of staff
regulations based thereon which might be involved in the Tribunal’s decisions”
(loc. cit., 498th Meeting, p. 66 ; emphasis added). The amendments of India
were not adopted.

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28. The Report of the Fifth Committee itself to the General Assembly
sheds little further light on the scope of the review authority to be afforded
to the Court. It confines itself to the following statements :

“15. The co-sponsors of the revised joint draft resolution explained
that the new draft Article 11 was intended to limit review to excep-
tional cases. Two of the grounds for review were those provided in the
statute of the ILO Administrative Tribunal, i.e., questions of compe-
tence and of fundamental error in procedure. One additional ground
was provided, Le., errors on ‘a question of law relating to the provi-
sions of the Charter’. The co-sponsors of the revised joint draft reso-
lution referred to the statements which they had made concerning the
interpretation of this phrase which were contained in the report of the
Special Committee (A/2909). The opinion was expressed in the debate
that the grounds provided for review were of a fundamental nature
and that as such they could not be ignored, if and when they arose, in
the interest of justice.

16. Under the proposed new Article 11 application for review
might be made by the Secretary-General, the staff member concerned
or a Member State. The supporters of the revised joint draft resolution
considered that a Member State had a legitimate interest in ensuring
the proper application of the Charter and the Staff Regulations, as
well as a financial interest in the matter ; and it was not reasonable to
assume that a Member State, in interceding in a case, would do so
solely for political reasons .. .

18. Under the proposed new Article 11, the review of substantive
legal issues was to be made by the International Court of Justice which
had been selected because it was an independent, impartial judicial
body of the highest standing. Supporters of the revised joint draft
resolution further considered that the Court was the appropriate
organ to be the final judicial arbiter on questions of Charter law and
that no organ would be more competent to settle other issues arising
from the grounds specified for review. Since only exceptional cases
would come to the Court, it would not be over-burdened with trivial
questions. It was further argued that it would be neither necessary nor
economically justifiable to set up new appellate machinery. While the
contentious proceedings of the International Court of Justice were
limited to disputes between States, advisory opinions upon legal
questions might be requested under Article 96 of the Charter by
authorized organs of the United Nations.” (Report of the Fifth
Committee, doc. A/3016, reprinted in United Nations, General
Assembly Official Records, Tenth Session, Agenda item 49, Annexes,
p. 40.)

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C. Conclusions on the scope of the Court’s review authority in respect of error
of law

29. In the light of the foregoing analysis of the terms and exposition of
the travaux préparatoires of the Statute of the Administrative Tribunal, it is
believed that the following conclusions may fairly be drawn about the
scope of the Court’s review authority, particularly in respect of error on a
question of law relating to the provisions of the Charter :

— In preparing and adopting what is now Article 11 of the Statute of
the United Nations Administrative Tribunal, the General Assembly
contemplated the submission of requests to the Court for advisory
opinions which would entail the Court’s passing upon points of law
raised by a judgement of the Tribunal, but not re-trying questions of
fact. The Court may consider the merits of a judgement of the Tribunal
on questions of law in so far as its doing so is consonant with the Court’s
Statute.

— However, the Court would not be requested to reconsider the merits
on all points of law. It is rather restricted to the four “exceptional” grounds
of objection to a judgment specified in Article 11 (1) of the Tribunal’s
Statute.

— Three of those four grounds are essentially procedural : excess of
jurisdiction or competence, failure to exercise jurisdiction, and fundamen-
tal error in procedure which has occasioned a failure of justice.

— The fourth ground is substantive and its substance is error on a
question of law relating to provisions of the Charter. Such error need not
be in the interpretation or application of a provision or provisions of
the Charter ; it need merely “relate to” — i.e., be connected with — such
provision or provisions. That is the paramount point. The proceedings of
the Special Committee and the Fifth Committee, moreover, make it clear
that the scope of the Court’s review authority is consistent with the
extensive import of the phrase “relating to”. In the most exigent interpre-
tation found in the Report of the Special Committee and in statements in
the Fifth Committee, it includes “not only where the Administrative Tri-
bunal might be considered to have misinterpreted the Charter, but also
where the Tribunal might have interpreted and applied the Staff Regula-
tions in a manner considered to be inconsistent with the provisions of
Chapter XV of the Charter”. In its broader interpretation, the Court’s
authority covers “not only interpretations of the provisions of the Charter
but also the interpretation or application of staff regulations deriving from
Chapter XV of the Charter”. That is the interpretation placed on the
error-of-law proviso by its British co-sponsor, on behalf of the co-spon-
sors, when it was introduced in the Special Committee. Or it covers “in-
terpretation of the Charter or of staff regulations based thereon which
might be involved in the Tribunal’s decisions”. That is the interpretation
placed on the error-of-law proviso by its United States co-sponsor at the

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end of a detailed debate in the Fifth Committee, shortly before its adop-
tion.

30. These narrower and broader interpretations obviously differ. Yet
they can be read together in a consistent fashion ; and in support of so
doing, it may be noted that the British and United States representatives,
who played the leading role in the proposal of Article 11, seem to have used
them interchangeably. If they are so read, it may be argued that the terms
used by these principal co-sponsors inform the meaning of the text used in
the Report of the Committee, especially since the United States co-sponsor
re-stated the broader interpretation after the Report was introduced but
before the text was adopted by the Fifth Committee. Or it can be argued
that the apparently narrower scope of the rendering in the Report of the
Special Committee shows that the broad interpretation of the co-sponsors
should not govern — which is a conclusion that derives distinct support
from the fact that the preoccupations of the United States at the time it
took so prominent a part in seeking a review procedure was with what it
saw as judgements of the Tribunal which conflicted with provisions of
Chapter XV. If the broader interpretation is accepted, as it may reasonably
be, then it is plain that the Court in the instant case is entitled to consider
whether the judgement of the Administrative Tribunal in Mortished v. the
Secretary-General correctly interprets the Staff Regulations. But if the
narrower interpretation is accepted, then the Court in the least is entitled to
consider whether that judgement correctly interprets the Staff Regulations
in so far as the Tribunal might have interpreted and applied them in a
manner inconsistent with the provisions of Chapter XV of the Charter.
And in any event, such an inconsistency need merely “relate to” such
provisions.

3. The Court’s Interpretation of the Statutes of the Administrative
Tribunals in the Unesco Officials and Fasla Cases

A. The Unesco Officials case

31. Inso far as it may be relevant to the scope of the Court’s authority in
this case, the Court’s Advisory Opinion on Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opin-
ion, I.C.J. Reports 1956, p. 77 (herein referred to as the “Unesco Officials
case”), may be best understood for present purposes if it is considered in
the context of the travaux préparatoires set forth above, together with the
Court’s interpretation of the distinguishable Statute of the United Nations
Administrative Tribunal which was construed in the Fasla case.

32. In the Unesco Officials case, the Court exclusively considered the
provisions of Article XII of the Statute of the ILO Administrative Tribu-

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nal. It found that the challenge raised against the Tribunal’s judgements
“refer to the jurisdiction of the Administrative Tribunal and to the validity
of the Judgments” (p. 83). It saw its advisory procedure “as serving, in a
way, the object of an appeal” against the Tribunals judgments (at p. 84).
The Court held that it was not necessary for it to express an opinion on the
legal merits of Article XII of the Statute (p. 85). It then turned to the first
question put to it, which was whether the Administrative Tribunal was
competent under its Statute to hear certain complaints. In considering the
decision of the Tribunal which confirmed its jurisdiction, the Court
held :

“The Court is not confined to an examination of the grounds of
decision expressly invoked by the Tribunal ; it must reach its decision
on grounds which it considers decisive with regard to the jurisdiction
of the Tribunal.” (C.J. Reports 1956, p. 87.)

The Court continued :

“The words ‘competent to hear’ used in the Request for an Opinion
mean that the question is one of determining whether the Adminis-
trative Tribunal was legally qualified to examine the complaints sub-
mitted to it and to adjudicate on the merits of the claims set out
therein. The circumstance that the Tribunal may have rightly or
wrongly adjudicated on the merits or that it may have rightly or
wrongly interpreted and applied the law for the purposes of deter-
mining the merits, in no way affects its jurisdiction. The latter is to be
Judged in the light of the answer to the question whether the complaint
was one the merits of which fell to be determined by the Adminis-
trative Tribunal in accordance with the provisions governing its juris-
diction. That distinction between jurisdiction and merits is of great
importance in the legal régime of the Administrative Tribunal. Any
mistakes which it may make with regard to its jurisdiction are capable
of being corrected by the Court on a Request for an Advisory Opinion
emanating from the Executive Board. Errors of fact or of law on the
part of the Administrative Tribunal in its Judgments on the merits
cannot give rise to that procedure. The only provision which refers to
its decisions on the merits is Article VI of the Statute of the Tribunal
which provides that its judgments shall be ‘final and without appeal’.”
(Ibid.)

33. It is plain that, in reaching the foregoing holding, the Court
addressed itself to the particular “legal régime of the Administrative Tri-
bunal” of the ILO. The distinction between jurisdiction and the merits is
“of great importance” in that régime, because “Errors of fact or law... on
the merits” by the Tribunal cannot give rise to review by the Court. The
situation is demonstrably otherwise in the régime of the United Nations
Administrative Tribunal, which had been freshly adopted when the Court

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took up the Unesco Officials case. Thus, in the instant case, it would be
wrong simply to carry over the holding of the Court in the Unesco Officials
case that :

“The Request for an Advisory Opinion under Article XII is not in
the nature of an appeal on the merits of the judgment. It is limited to a
challenge of the decision of the Tribunal confirming its jurisdiction or
to cases of fundamental fault of procedure. Apart from this, there is no
remedy against the decisions of the Administrative Tribunal. A chal-
lenge of a decision confirming jurisdiction cannot properly be trans-
formed into a procedure against the manner in which jurisdiction has
been exercised or against the substance of the decision.” (.CJ.
Reports 1956, p. 98.) |

This is because the Court, when reviewing judgements of the United
Nations Administrative Tribunal, acts, in so far as error of law relating to
Charter provisions is alleged, under a review authority which is designedly
and decisively wider than that which applies under Article XII of the
Statute of the ILO Administrative Tribunal.

B. The Fasla case

34. The Fasla case is pertinent to the question under discussion, and
instructive in a number of other respects in regard to the case at bar. In the
Fasla case, the request of the Committee on Applications was for an
advisory opinion regarding alleged failure by the Administrative Tribunal
to exercise jurisdiction vested in it and fundamental errors in procedure
which it was alleged to have committed. “These are,” the Court said,
“questions which by their very nature are legal questions ... within the
meaning of Article 96 of the Charter” (Application for Review of Judgement
No. 158 of the United Nations Administrative Tribunal, I. C.J. Reports 1973,
pp. 166, 175). The Court resorted to “the legislative history of Article 11”
to show that recourse to the Court was to be had “only in exceptional
cases” (p. 177). In a passage of particular interest, the Court further held
that,

“the proceedings before the Court are still advisory proceedings, in
which the task of the Court is not to re-try the case but to reply to the
questions put to it regarding the objections which have been raised to
the Judgement of the Administrative Tribunal” (p. 182).

In the light of the legislative history of Article 11, it is submitted that, by
this, the Court meant that it would not examine the facts of the case. It did
not and could not have meant that it was barred from considering the
merits, if the questions put to it required considering the merits. The Court
noted that the Committee on Applications “is authorized to request, and
the Court to give, an advisory opinion only on legal questions which may
properly be considered as falling within the terms of one or more of those

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four ‘grounds’ ” (p. 184). It held, in traditional terms, that, “The Court may
interpret the terms of the request and determine the scope of the questions
set out in it” (ibid.). It further held that : “The Court may also take into
account any matters germane to the questions submitted to it which may
be necessary to enable it to form its opinion.” (Ibid.) Thus the records of
the Committee on Applications in the current case may be taken into
account in order to interpret the terms of the request, despite the fact that
the Court is, in principle, “bound by the terms of the questions formulated
in the request” (ibid.). The Court found “no reason to adopt a restrictive
interpretation of the questions framed in the request” (at p. 187). It then
declared :

“Under Article 11 of the Statute of the Tribunal, as already indi-
cated, .the task of the Court is not to retry the case but to give its
opinion on the questions submitted to it concerning the objections
lodged against the Judgement. The Court is not therefore entitled to
substitute its own opinion for that of the Tribunal on the merits of the
case adjudicated by the Tribunal. Its role is to determine if the circum-
stances of the case, whether they relate to merits or procedure, show that
any objection made to the Judgement on one of the grounds mentioned in
Article 11 is well founded. In so doing, the Court is not limited to the
contents of the challenged award itself, but takes under its consider-
ation all relevant aspects of the proceedings before the Tribunal as
well as all relevant matters submitted to the Court itself by the staff
member and by the Secretary-General with regard to the objections
raised against that judgement. These objections the Court examines on
their merits in the light of the information before it.” (I. CJ. Reports
1973, pp. 187-188 ; emphasis added.)

Once more, it is plain that what the Court meant is that it will not retry the
case in the sense of finding the facts, or generally substitute its views on the
merits for those of the Tribunal. But its role is to determine if the circum-
stances of the case, “whether they relate to merits or procedure”, show that
any objection made to the judgement on one of the grounds specified in
Article 11 is well-founded. That is precisely the task of the Court in the
instant case. Moreover, in performing that task, the Court, if it is to follow
its holdings in the Fasla case, shall not limit itself to the contents of the
challenged award in Mortished v. the Secretary-General, but shall take into
account all relevant matters submitted to the Court with regard to the
objections raised against that judgement. Among such matters are the
terms and intent of General Assembly resolution 34/165. The Court
accordingly should, in examining the objections to the Mortished judge-
ment of the Administrative Tribunal, decide upon those objections — as
the Court in the Fasla case specifies. — “on their merits” in the light of the
information before it — information which embraces not only the terms of
the General Assembly’s resolutions but the debate which led to their
adoption,

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35. In the Fasla case, the Court further held :

“Furthermore, as the Court pointed out in its Advisory Opinion in
the Unesco case, a challenge to an administrative tribunal judgment on
the ground of unauthorized assumption of jurisdiction cannot serve
simply as a means of attacking the tribunal’s decisions on the
merits...

So too, under Article 11 of the Statute of the United Nations
Administrative Tribunal a challenge to a decision for alleged failure to
exercise jurisdiction of [sic. — this should read : ‘or’] fundamental
error in procedure cannot properly be transformed into a proceeding
against the substance of the decision. This does not mean that in an
appropriate case, where the judgement has been challenged on the ground
of an error on a question of law relating to the provisions of the Charter,
the Court may not be called upon to review the actual substance of the
decision. But both the text of Article 11 and its legislative history make
it clear that challenges to Administrative Tribunal judgements under
its provisions were intended to be confined to the specific grounds of
objection mentioned in the Article.” (ZCJ. Reports 1973, p. 188 ;
emphasis supplied.)

It also held that, “in appreciating whether or not the Tribunal has failed to
exercise relevant jurisdictional powers, the Court must have regard to the
substance of the matter and not merely to the form” (pp. 189-190). Later it
observed that the Court’s abstention from carrying out a factual inquiry
“does not mean that, in review proceedings, the Court regards itself as
precluded from examining in full liberty the facts of the case or from
checking the Tribunal’s appreciation of the facts” (p. 207).

36. The most essential teaching of the Fasla case for present purposes is
that, in an appropriate case which is precisely that of Mortished, i.e.,
“where the judgement has been challenged on the ground of an error on a
question of law relating to the provisions of the Charter” the Court is
“called upon to review the actual substance of the decision”. There is only
one qualification to that charge : challenges are “confined to the specific
grounds of objection” mentioned in Article 11 of the Administrative Tri-
bunal’s Statute. As has been demonstrated above, the ground of error ona
question of law “relating to” the provisions of the Charter is a ground
which, in undeniable measure, embraces interpretation by the Court of the
Staff Regulations. The Court’s competence does not extend to every such
case, for the scope of the Court’s review authority was meant to be “ex-
ceptional” and construction of the Staff Regulations by the Tribunal is
routine. But certainly it would extend to a case such as Mortished’s, in
which the authorized Committee of the General Assembly requests an
advisory opinion on so exceptional a question as whether the Adminis-
trative Tribunal was warranted in not giving immediate effect to a reso-
lution of the General Assembly. Indeed, as will be shown below, that

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exceptional question, and error of law in respect of it, unquestionably and
in any event “relates to” Charter provisions.

37. The Fasla case is instructive in still another respect as well. In that
case, the Administrative Tribunal found itself in the situation of having to
translate the injury sustained by the applicant into monetary terms. The
Court found that, under the Tribunal’s Statute, the discretion afforded the
Tribunal in that regard is wide. It added :

“Tf the Court were acting in this case as a court of appeal, it might be
entitled to reach its own conclusions as to the amount of the damages
to be awarded, but this is not the case. In view of the grounds of objection
upon which the present proceedings are based, .. . the Court must con-
fine itself to concluding that there is no such unreasonableness in the
award as to make it fall outside the limits of the Tribunal’s discretion.
This being so, the Tribunal cannot be considered as having failed to
exercise its jurisdiction in this respect.” U.C.J. Reports 1973, p. 197;
emphasis supplied.)

This passage plainly imports that, if the Court in another review of a
judgement of the Administrative Tribunal were not proceeding on the
procedural grounds of objection which were in play in the Fasla case but on
the substantive ground of objection which is at issue in Mortished, the
Court would indeed act “as a court of appeal”.

38. This is precisely the conclusion reached as long ago as 1958 by a
distinguished commentator on the subject, Professor Leo Gross. In
appraising the amended version of Article 11 of the Statute of the United
Nations Administrative Tribunal, Professor Gross wrote that an objection
on the ground that the Tribunal has erred on a question of law relating toa
provision of the Charter “relates not to the validity of the Judgment but to
the merits of the Judgment”. This ground, he concluded, affords the
International Court of Justice “a true appellate jurisdiction”. He observes
that, “The inclusion of the review of substantive legal issues by the
Court ... was considered an essential feature of the compromise among
the different proponents of the review procedure...” (L. Gross, “Parti-
cipation of Individuals in Advisory Proceedings before the International
Court of Justice : Question of Equality between the Parties”, 52 American
Journal of International Law, 16, 36 (1958)).

Il. THE ORIGINS AND DEVELOPMENT OF THE REPATRIATION GRANT

39. The judgment of the Administrative Tribunal in the case of Mor-
tished v. the Secretary-General can be evaluated only in the context of the
character of the repatriation grant and the grant’s surrounding debate and
development in the General Assembly. It is accordingly necessary to set
out the origins and evolution of the repatriation grant, and its treatment by
the General Assembly in resolutions 33/119 and 34/165, and to do so in
adequate detail.

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1. The Initiation and Intent of the Repatriation
Grant 1949-1950

40. In 1949, the United Nations Committee of Experts on Salary,
Allowance and Leave Systems proposed that a then existing expatriation
allowance be abolished. Its report recommended, however, that a repa-
triation grant be paid to repatriating members of the staff, in the following
terms :

“It was recognized . . . that upon leaving the Organization and being
repatriated to his home country, a staff member is faced with certain
extraordinary expenses, and that such expenses would fully justify
payment of a special lump-sum grant at that time. Such expenses
would arise for example, as a result of (a) the loss, during United
Nations service, of professional and business contacts with the home .
country ... (b) the necessity of giving up residence and liquidating
obligations in a foreign country ; and (c) the expenses which a staff
member will normally have to meet in re-establishing himself and his
home on return to his own country. The Committee was, therefore, of
the opinion that in place of the present expatriation allowance there
should be substituted a repatriation grant designed to assist in meeting
such extraordinary expenditures. The substitution of such a grant
would not only be in the interest of economy and of administrative
simplicity, but equally in the interest of the staff member who would
receive the payment at the time when it was really needed.

It is proposed that the grant should be payable to all staff members
with respect to whom the Organization is obliged to undertake repa-
triation to the home country. Staff members who are terminated by
summary dismissal should not be eligible. The amount of the grant
should vary with the length of service with the United Nations pro-
vided that payment of the grant would begin with staff who had served
a minimum of two years.” (A/C.5/331, p. 2.)

41. This proposal for a repatriation grant — and the reasons for and
purpose of the grant — were (with modifications in its scale) accepted by
the Advisory Committee on Administrative and Budgetary Questions
(ACABQ), which described the grant as payable to staff members “re-
turning to their home countries” (A/1313, para. 69). The Secretary-General
supported the proposal of the Committee of Experts, which he too saw as
designed to cope with “the expense [of retiring staff] incurred in settling
down anew in their own countries” (A/ 1378, p. 82). The Fifth Committee
likewise accepted the repatriation grant “in the form of a lump-sum which
would be paid to staff members on their being repatriated to their home
countries...” (A/C.5/400, p. 104). Thus the General Assembly in 1950
adopted a resolution amending the then provisional staff regulations to
provide :

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

“The Secretary-General shall establish a scheme for the payment of
repatriation grants in accordance with the maximum rates and con-
ditions specified in annex II! to the present regulations.” (Resolution
470 (V).)

Annex IT to the new Staff Regulation specified :

“In principle, the repatriation grant shall be payable to staff mem-
bers whom the Organization is obligated to repatriate, except those
terminated by summary dismissal. Detailed conditions and defini-
tions relating to eligibility shall be determined by the Secretary-
General. The amount of the grant shall vary with the length of service
with the United Nations...” (Ibid)

The Secretary-General accordingly put out an Information Circular
which noted :

“The principle of a repatriation grant has been established, the grant
to be payable to staff members returned at United Nations expense to
their home countries. The grant will not be payable to staff members
who are serving at an official duty station in their home country when
they are separated from the service. A staff member who is summarily
dismissed will not be entitled to the grant.” (ST/AFS/SER.A/72,

p. 7.)

2. Departure from the General Assembly’s Intent by the CCAQ
in 1951-1952

42. Despite the clarity of the language and intent of all concerned, as
early as 1951 the view appeared within the administrations of the United
Nations and the Specialized Agencies that, notwithstanding the principle
that the repatriation grant may be paid only to those who repatriate, as a
matter of practice it also should be paid to those who do not. Thus a
working paper of the United Nations Secretariat prepared for the Con-
sultative Committee on Administrative Questions (CCAQ) of the Ad-
ministrative Committee on Co-ordination (ACC) contains the following
passage :

“Question 1 : The General Assembly has stated that the repatriation
grant is to be paid in those cases where the organization is ‘obliged to
repatriate’. Given this basic principle, should the repatriation grant be
paid in cases where the staff member is not actually repatriated, 1.e.,
(a) he remains in the country of the official duty station, (b) he travels
to a country other than his home country ?

Answer : In general, the United Nations would take the view that

' In later versions, what was initially entitled Annex IT became Annex IV.

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

the General Assembly language requires payment of the grant under
either circumstance, particularly since it would be impossible to con-
trol the final place of residence.” (CO-ORDINATION/CC/A.12/
13.)

The foregoing document, which is dated 20 March 1952 and denominated,
“Restricted”, is consonant with an opinion voiced the previous year at the
Eleventh Session of CCAQ. The Provisional Summary Record of the
Twelfth Meeting of that session contains this passage :

“Question 1 : Should repatriation grants be paid even although the
staff member was not actually repatriated ?

Mr. McDtarmip (United Nations) said that the United Nations
took the view that if the staff member was entitled to be repatriated he
was equally entitled to the repatriation grant irrespective of whether
he returned home or not. After all, it would be impossible to control
his ultimate place of residence.

Mr. CALDWELL (International Labour Organisation) agreed with
that principle and mentioned political considerations as another argu-
ment for adopting it.

At the suggestion of Mr. REYMOND (International Labour Organ-
isation) it was agreed to record the view that while such a ruling was not
entirely in harmony with the purposes of the grant, from an admin-
istrative point of view no other procedure was possible.” (CC/A.11/
SR.12 of 5 May 1951, p. 12.)

43. The Twelfth Session of the CCAQ, which met in May 1952, adopted
a report, also denominated “Restricted”, which contains the following
passages of particular interest :

163

“Repatriation grants

This subject is considered of sufficient policy importance to warrant
a full report to ACC, which is asked to concur in the principles here
enumerated.

Of the agencies which have accepted the common salary and
allowances scheme, only ICAO has failed to include the repatriation
grant among its allowances. To provide a basis for uniformity in ad-
ministration where the grant is paid, the following principles are
proposed :

(a) The United Nations regulation provides that the grant is pay-
able where the Organization is ‘obligated to repatriate’. This language
has been followed by FAO and Unesco. The ILO and WHO have
adopted the criterion, ‘serving at a duty station outside of the home
country’. It is felt that the ILO-WHO formulation is more descriptive
of the intent. Without proposing changes in regulations, it is proposed
485 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

that other organizations undertake to reflect this concept in their
rules.

(b) In the light of (a), it is believed that the grant should be paid
after two years’ service abroad, regardless of the conditions of sepa-
ration (including resignation but excluding summary dismissal) and
regardless also of whether the staff member is actually repatriated.

(c) However, the organization is not considered obligated where the
staff member voluntarily assumes the nationality of the country of
duty station.

(g) In the case of a staff member serving away from his home
country who is then transferred to duty within that country, eligibility

for the grant should continue subject to a reduction factor as fol-
lows :

(1) no change in the amount of the entitlement if the separation
occurs within the first three months of service in the home coun-

try ;

(ii) each month of service beyond three months would, for pur-
poses of calculation of the grant, cancel one year of qualifying service
away from the home country.

Hence the actual amount of the grant (if any entitlement remained)
would depend upon how long after the transfer the separation took
place.” (CO-ORDINATION/R.124, pp. 6-8.)

44. It will be observed that, in the view of the CCAQ, “the intent” of the
repatriation grant was that it should be paid to those serving at a duty
station outside of the home country, apparently regardless of whether the
staff member relocated from the country of the duty station or not. On
what it based this finding of intent is not revealed. It certainly does not
correspond to the intent of the Committee of Experts which proposed the
grant, or of the ACABQ, the Secretary-General or the Fifth Committee in
accepting such a proposal (see paras. 40-41, supra).

45. Two further points in respect of this report of the CCAQ should be
made. First, it acknowledges that the whole of entitlement to the repa-
triation grant might vanish upon transfer of a staff member to duty within
his home country (see subpara. (g) in the above quotation from the report)
— an acknowledgement which is not easily reconciled with treating such
entitlement as an acquired right.

46. Second, while the report asks the ACC “to concur in the principles
here enumerated”, no evidence has been submitted to the Court indicating
that it did. It may be presumed that, if the Administrative Committee on

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Co-ordination actually had concurred in these principles, and evidence so
demonstrating exists, Mortished’s able counsel would have presented that
evidence. Moreover, a search of United Nations documentation indicates
that (a) the above-cited documents of the CCAQ, two of which were
marked as restricted, were not submitted to the General Assembly or to the
Economic and Social Council and (b) the reports of the ACC in the years
1951-1953 give no indication whatsoever that the ACC concurred in the
principles enumerated in respect of the repatriation grant ; indeed, those
reports make no reference at all to the repatriation grant (cf., docs. E/1865,
E/1991, E/2161, E/2203, E/2340 and E/2446).

3. The General Assembly apparently Is not Informed that Practice Departed
from Principle

47. While apparently in practice the United Nations paid repatriation
grants to those who remained at their last duty station, beginning at a time
which is not clear in the record before the Court, it is equally unclear when
before 1976 the General Assembly was informed that the practice had so
far departed from the principle which it had prescribed. Thus as late as
1963, a Report of the Secretary-General on personnel questions submitted
to the Eighteenth Session of the General Assembly states :

“The repatriation grant was introduced with effect from 1 Jan-
uary 1951 under the terms of General Assembly resolution 470 (V).
Unlike the earlier expatriation allowance, which it replaced, the re-
patriation grant was established as a terminal payment designed to
provide compensation for the extraordinary expenditures incurred by
staff members at the time of their separation from the service and
re-establishment in their home country after a prolonged absence.”
(A/C.5/979, pp. 18-19, para. 13.)

By that same report, the Secretary-General proposed revisions of the Staff
Regulation and its annex governing the repatriation allowance which are
not relevant for present purposes, except in so far as they maintained the
proviso : “In principle, the repatriation grant shall be payable to staff
members whom the Organization is obliged to repatriate . . .” (ibid., p. 20).
The conjunction of these passages would surely suggest to any concerned
delegate in the Fifth Committee that the principle of payment of the
repatriation grant to those who are repatriated was routinely respected.
Thus, for example, in discussing the Secretary-General’s proposed amend-
ments to the Staff Regulation in respect of the repatriation grant, the
representative of Czechoslovakia said :

“It should not be forgotten that the repatriation grant had been
conceived as a ‘terminal’ benefit designed to compensate staff for the
extraordinary expenditure they incurred when they left the Organi-

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zation and settled in their own countries again after a prolonged
absence.” (United Nations, General Assembly Official Records,
Eighteenth Session, Fifth Committee, 1043rd Meeting, p. 202.)

In reply, Sir Alexander MacFarquhar, the Director of Personnel, in
explaining the Secretary-General’s proposal, spoke of “expatriate staff
who returned home . . .” (ibid., p. 203). There was no hint of payment of the
repatriation grant to those who did not return home. None of the proposed
amendments to Annex IV of the Staff Regulations concerning the repa-
triation allowance related to any practice of paying the grant to those who
remained at their duty station or gave any indication to the General
Assembly that this was the practice, if indeed at the time it was (see
A/5646, p. 46). If it were the conclusion of the Secretary-General that the
practice rightly did not conform to the principle and that the principle
should be revised, it is difficult to understand why he did not take an
opportunity such as this to propose to amend the Staff Regulations, or to
amend the Staff Rules, or, at least, to air the question in the General
Assembly.

4. The General Assembly Is Informed that Relocation to a Third Country
Suffices

48. However, while it is far from clear when — at any rate, before 1976 —
the General Assembly was informed of the practice of paying a repatria-
tion allowance to those who remained at their last duty station, the General
Assembly was informed as early as 1953 that the term “obligation to
repatriate” was interpreted and defined as meaning the obligation to
return a staff member to a place outside the country of his duty station. The
contrast is instructive. From 1953, Staff Rule 109.5, “Repatriation Grant”,
in paragraph (a) provided :

“Obligation to repatriate’, as used in para. 4 of Annex IV to the
Staff Regulations, shall mean obligation to return of a staff member
and his dependants, upon separation, at the expense of the United
Nations, to a place outside the country of his or her duty station.”

This definition of the “obligation to repatriate” informed the General
Assembly that the Secretary-General liberally interpreted the pertinent
Staff Regulation to permit removal to a place outside the country of the
staff member’s duty station in addition to the home country. But equally, it
may be said to have imported that a staff member who remained in the
country of his or her last duty station was not eligible for a repatriation
allowance : expressio unius est exclusio alterius. Viewed in this light, the
stress which the Administrative Tribunal places in Mortished v. the Sec-
retary-General (para. VII) on the 1953 break of the link between the
repatriation grant and return to the home country appears misplaced.

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5. The CCAQ’s Rationale for the Practice

49. In 1974, the Consultative Committee on Administrative Questions
undertook a review of the repatriation grant. Its Secretariat in a working
paper noted that the grant was designed to deal with the “practical and
financial difficulties of [the expatriate staff member] re-establishing
himself in the home country as were foreseen in 1951” (CCAQ/SEC/
325(PER), p. 3). It observed that : “Its object certainly was never that of
facilitating establishment in retirement and certainly not in a place other
than in the home country.” ({bid., p. 4.) It continued :

“The whole purpose of the grant is to assist the staff member and his
family to re-establish in the home country and clearly there is no
logical justification for paying the grant to a staff member who
remains in the country of his last duty station. Applying the logic is,
however, fraught with practical difficulties. The organizations have no
way of knowing where a staff member actually resides after he leaves
service and in fact there are a number of cases in which staff have two
or more residences. The secretariat of the Pension Fund has records of
the addresses to which pensions are paid but these are not necessarily
the residences of the pensioners. One could make payment of the grant
dependent upon actual repatriation travel but this would only ensure
that the organization incurred the cost of such travel — the value of the
grant is sufficient to induce staff to accept repatriation and pay their
own fares back to the duty station or to any other place in which they
intend to reside. In many cases staff at the time of leaving service do
not really know where they will reside and to tie the grant to actual
repatriation would lead to requests for keeping the entitlement on the
books pending personal decisions of the staff member. For all these
reasons, CCAQ Secretariat doubts the feasibility of attempting to
make payment of the grant dependent on evidence of repatria-
tion.”

50. The foregoing rationale for what the CCAQ Secretariat here impli-
citly indicates is the practice of paying the repatriation grant to those
who remain in the country of their last duty station is of high interest. What
is most striking about the rationale is its unpersuasiveness. It appears to
proceed in part on the assumption that staff members of the international
secretariats cannot be trusted to tell the truth about their domicile, even
though they are routinely entrusted with telling the truth about more
important matters and even though sworn statements as to residence or
domicile are a regular incident of the modern life of the taxpayer, spouse
and litigant. It should have been obvious that the least the organizations
could have done was to have made payment of a repatriation grant con-

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ditional upon the staff member’s signing an undertaking of removal from
the country of last duty station within a given period. Indeed the Inter-
national Civil Service Commission belatedly reached this conclusion.
Moreover, the difficulties of monitoring performance of a pledge of
removal appear to have been exaggerated, as the straightforward rule
ultimately promulgated by the Secretary-General in 1979 indicates.

6. Amendments to the Staff Regulations Do not Inform the General Assembly
of the Practice

Si. The seven United Nations agencies which replied to a question
posed by the foregoing working paper on whether payment of the repa-
triation grant should be conditional on actual repatriation unanimously
said that it should not be (CCAQ/SEC/325(PER) Add.1, para. 2). What is
of interest for present purposes is that, apparently as a result of questions
discussed by the CCAQ Secretariat and then moved through the system,
amendments were made in 1974 to the Staff Regulations and Staff Rules
and that those amendments in fact included revision of Staff Regulation
9.4 on the repatriation grant (res. 3353 (XXIX)). But again no effort was
made to amend or clarify the Regulation or consequential Rules or annexes
to justify a practice of paying the repatriation grant to those who remain in
the country of their last duty station. Nor was light on the practice shed by
the Report of the International Civil Service Commission (ICSC) to the
General Assembly of 1976, which, in so far as the record presented to the
Court indicates, nowhere states that repatriation grants are paid to those
who do not leave the country of their last duty station.

7. The Practice Is First Aired in the General Assembly in 1976

52. It was at the General Assembly in 1976 that the practice of payment
of the repatriation grant to those who remain in the country of their last
duty station was first aired. The representative of Austria in the Fifth
Committee, in commenting on the Report of the International Civil Ser-
vice Commission, questioned whether it was appropriate to pay the grant
to a staff member who “remained in the country of the duty station after
retirement” (A/C.5/31/SR.32, p. 9). The representative of Australia
shared her concerns (A/C.5/31/SR.34). Consequently, the Report of the
Fifth Committee noted that :

“The view was also expressed that the Commission should consider

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whether staff members who did not return to their country of origin on
retirement should be entitled to the grant.” (A/31/449, p. 4.)

The resolution adopted by the General Assembly contains the following
provision :

“Requests the Commission to re-examine, in the light of the views
expressed in the Fifth Committee at the current session :

(a) the conditions for the provision of terminal payments (for exam-
ple, repatriation grant, termination indemnities), in particular on
retirement and the possibility of establishing a ceiling for the
maximum aggregate of entitlements to these payments ;

(b) the possible introduction of an ‘end-of-service’ grant with par-
ticular attention to the conditions in which such payment might be
justified” (ibid. p. 6).

It should be noted that this resolution belies any contention that, in
practice, the repatriation grant had evolved into a severance grant, since it
speaks of no more than the “possible introduction” of an end-of-service
grant.

8. The CCAQ Does not Mention the Practice

53. In response to the General Assembly’s request that the Interna-
tional Civil Service Commission re-examine the conditions for payment of
the repatriation grant, studies were undertaken. In a paper submitted to
the Commission by the Consultative Committee on Administrative Ques-
tions dated 6 February 1978, under “Conditions of Entitlement”, the
following description of the repatriation grant is found :

“Grants designed to assist the staff member and his dependents, to
re-establish themselves in the home country upon completion of his
service with the organization (repatriation grant and grant on death)
(CO-ORDINATION/R.1263/Add.3, p. 3).

The paper continues as follows :

“(b) Repatriation Grant

13. Unlike the termination indemnity, the conditions of entitle-
ment for which have been extensively reviewed and most recently
revised, those governing the repatriation grant have remained essen-
tially unchanged since they were first laid down with effect from
1 January 1951...

14. The grant is payable to staff members whom the organization is
obligated to repatriate at the end of their service, except in cases of
summary dismissal and abandonment of post. The obligation to

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repatriate is interpreted to mean the obligation which the organization
assumes when it recruits a staff member who is a national of a country
other than that of the duty station to return him or her at the expense
of the organization to the home country recognized for purposes of
home leave, the place from which he or she was recruited or, excep-
tionally, such other country as the executive head may determine in
the light of the circumstances affecting the staff member’s status at the
time of separation. The purpose of the grant, . . . is to assist the staff
member in meeting the extraordinary expenses he or she is faced with
on leaving the organization and returning to the home country...

15. In one particular respect [not relevant to the issue of relocation],
the purpose of the grant has undergone some modification since it was
first defined...

16. Entitlement to the grant is further determined by the staff
member’s personal status ... In the case of the single staff member,
the grant is half the amount payable to the married staff member. The
rationale behind this sharp distinction, . . . is the assumption that the
expenses of re-establishing a family after an extended absence from
the home country are substantially higher than those of a single
person.

17. The organizations believe that the concept of the grant, as
evolved over the years and as currently applied in the varying circum-
stances under which the grant is paid adequately responds to employ-
ment policies laid down by their respective governing organs.” (CO-
ORDINATION/R.1263/Add.3, pp. 4-6.)

This is an extraordinary statement. It is longer and more detailed than the
foregoing quotations indicate. It accurately sets out the original and con-
tinuing rationale for payment of the repatriation grant. It summarizes the
changes that have been made in eligibility for the grant. It purports to set
out, presumably exhaustively, the terms of entitlement to the grant. It says
that only in “one particular respect” has the purpose of the grant under-
gone some modification since it was first defined. Yet scrutiny of this
statement demonstrates that it contains no indication that in fact United
Nations officials were being paid the grant even if outside the terms it
describes as those of “entitlement”.

9. The Revealing Report of the ICSC of 1978

54. The International Civil Service Commission, in its Report to the
General Assembly in 1978, recites the facts which are summarized in the
foregoing quotation (United Nations, General Assembly Official Records,
Thirty-Third Session, Supplement No. 30 (A/33/30), pp. 59-60), and then
continues :

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

“181. The Commission’s examination in 1978 centred on two ques-
tions :

{a} the justification for the progressive scale of amounts of the
grant ;

(b) the appropriateness of paying the grant to a staff member who,
upon separation, does not return to his home country.

182. If the purpose of the grant was to meet exceptional expenses
incurred in resettling oneself in one’s own country, it could be ques-
tioned why the amount should increase with the number of years of
service (up to a fixed maximum). It could be argued that the expenses
in question were no greater after 20 years’ expatriation than after one
year’s ; indeed, they might be less if the separation and repatriation
had been foreseen and planned for some time than if they occurred
unexpectedly as might be the case in the first few years of service. By
its progressive character, the grant undoubtedly had some of the
characteristics of an earned service benefit, as well as of an ad hoc
subsidy. The Commission recognized this duality, due, no doubt, to
the fact that the grant was introduced to replace a previously existing
expatriation allowance and also to the influence of the progressive
pattern of many other such indemnities (e.g., the termination indem-
nity or the severance pay of the United States civil service ; the same
pattern was found in the repatriation or resettlement grants of a
number of national foreign services)... The Commission believed
there would be logic in standardizing the repatriation grant as a flat
amount or as the equivalent of a number of days’ daily subsistence
allowance at the rate applicable to the place to which the former staff
member moved (so as to reflect differences in cost of living) ; at the
same time, it doubted the wisdom of eliminating entirely from the
salary system all trace of a separation benefit reflecting length of
service...”

This quotation is significant, for it places in appropriately modest context
any contention that the staff member “earns” the repatriation allowance
which thus is an accrued and vested right. As to the immediate issue of the
case, the Commission made the following extremely important state-
ment :

17]

“183. Having regard to remarks made in the discussion in the Fifth
Committee at the thirty-first session of the General Assembly, the
Commission considered the question of whether it was appropriate
that a repatriation grant be paid to a staff member who did not, in fact,
return to his or her home country upon separation from the organi-
zation. Strictly speaking, it was clear that to do so would be incon-
sistent with the stated purpose of the grant. The staff member who
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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

remained in the country of the last duty station incurred none of the
expenses of dislocation and reinstallation which the grant was
intended to meet (or none more than would be incurred by a non-
expatriate staff member, who would not be entitled to the grant in any
case). The staff member who removed to a country other than the
home country, either to work there or to retire there, did incur
expenses of relocation and installation, but the strict purpose of the
grant was not complied with. To say that the staff member had earned
the entitlement to the grant through having been expatriate during his
service and should receive it upon separation wherever he went, then,
would be to change the nature of the entitlement and to make it a kind
of deferred expatriation allowance, so raising the question of possible
duplication with that part of the margin included in base salary which
is defined as compensation for expatriation.

184. The representatives of the organizations, while recognizing the
problem, pointed out to the Commission the practical difficulties they
would have in keeping track of the movements of a former staff
member after he had left the service. The fact that he had used his
entitlement to repatriation travel would not be conclusive, since he
might travel to his home country but return immediately afterwards to
settle in his last duty station country or go to some third country.
(Some members, however, believed that if a more rigorous control was
exercised over repatriation travel than appeared to be the case at
present, it could provide considerable indications as to where former
staff members had gone on separation.)

185. The Commission acknowledged these practical difficulties
and had no desire to see an international information network set up
to keep track of the movements of former staff members. It did
believe, however, that to pay repatriation grant to a person who
remained permanently in the country of his last duty station was
incompatible with the purpose of the grant and could also be seen as
discriminatory by non-expatriate staff members. The expatriate staff
member’s choice to remain in the duty station country certainly meant
that he had, for some time, intended to make that country his home
and so had, to some extent, ceased to be truly expatriate.

186. The Commission considered the possibility that the grant be
paid only to a staff member who supplied evidence that he had settled
in his recognized home country. It rejected that solution because it
would penalize those staff members who, during service, had acquired
family or other ties with a country other than that from which they
were originally recruited, those who on leaving United Nations service
were obliged to go to a third country in order to find work and those
494 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

who, for political or other reasons were unable to return to their home
country. It considered nevertheless that the grant should not be paid to
a staff member who, on separation, remained permanently in the
country of his last duty station and so incurred none of the expenses of
dislocation and relocation which the grant was intended to meet. The
Commission recognized the difficulties of exercising administrative
control over the movements of former staff members after they had
left the organizations. Considering that the proportion of staff mem-
bers who did not return to their home country on separation was in
any case very small, the Commission was of the opinion that the
setting up of cumbersome watertight controls would not be warranted.
It believed that the staff member’s good faith should be sufficient
guarantee of his intentions. It recommends, therefore, that payment of
the repatriation grant should be made conditional upon signature by
the staff member of a declaration that he does not intend to remain
permanently in the country of his last duty station. That requirement
should come into effect from 1 January 1979 for new staff members. If
the organizations consider that some period of grace should be
allowed to serving staff members who may already have planned the
place where they will reside after their separation on the assumption
that they will receive the grant, CCAQ should agree on a common
transitional measure.” (Ibid.)

This statement is notable in several respects, especially in that :

— it affirms, in 1978, that payment to non-repatriating staff is, strictly
speaking, “inconsistent with the stated purpose of the grant” ;

— it recognizes that, in 1978, there is a case, in terms of the grant’s
purposes, for payment to a staff member who relocates to a third country,
but no such case for the staff member who remains in the country of the last
duty station ;

— it recognizes that to make payment to staff who remain in the country
of the last duty station “would be to change the nature of the entitlement”,
which would raise question of duplicating payments already made ;

— it notes the practical difficulties of monitoring the movement of
retiring staff and suggests that reliance be placed on the good faith of the
staff member in undertaking to move as a condition of payment ;

— it suggests that if the organizations consider that “some period of
grace” should be allowed to serving staff members who have made their
retirement plans, a common transitional measure should be agreed
upon.

It will be observed that the Commission’s exposition and analysis made

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little room for the contention that serving staff members have an acquired
right to payment of the repatriation grant ; it spoke, in tentative terms, of a
“period of grace”.

55. In introducing the Commission’s report to the Fifth Committee, the
Chairman of the International Civil Service Commission stated that :

“The Commission had made a careful study of the entitlement . . . it
believed that the repatriation grant should not be paid when the staff
member, at the end of his service, remained in the place of his last duty
station and accordingly did not incur the removal and reinstallation
expenses which the grant was intended to meet.” (A/C.5/33/SR.32,

p. 11.)

10. Fifth Committee Response to the ICSC Report

56. In the discussion that ensued in the Fifth Committee, the following
views were expressed. The representative of Italy uniquely opposed requir-
ing the retiring staff member to sign a declaration that he did not intend to
remain permanently in the country of his last duty station “because it
would infringe the right of an individual to move freely from one place to
another” (A/C.5/33/SR.37, p. 17). The representative of Japan, while
approving the Commission’s proposal, considered that signature of such a
declaration was not a “sufficient guarantee against its abuse” (ibid., p. 22).
The representative of Austria maintained that the grant was designed to
assist a staff member in re-establishing himself or herself in the country of
origin long before reaching retirement age ; payment to a retiring official
who remained at the last duty station was “wasteful”, the more so since
Pension Fund arrangements permitted drawing one-third of the capital
value of a pension in a lump-sum to cover costs of relocation. Her Gov-
ernment would accept the Commission’s recommendation for a declara-
tion on a provisional basis “to avoid continuing the current practice...”
(A/C.5/33/SR.38, p. 6). The representative of Belgium maintained that
the repatriation grant, “which had been $5,000 in 1963, had grown out of
all proportion... The grant should be strictly limited to staff members
who resettled in their home countries and, despite the arguments in . . . the
Commission’s report, administrative control of their movements was war-
ranted.” (A/C.5/33/SR.40, p. 5.) The representative of the United States
accepted “without question” the condition which the ICSC recommended
be imposed with respect to the repatriation grant. The condition was
“completely in accord with the spirit and letter of the Staff Regulations,
which represented the final authority for interpreting conditions of ser-
vice” (A/C.5/33/SR.40, p. 8). The representative of France declared that
his delegation was, on the whole, against all special grants paid at the end
of service and believed that the existing repatriation grant should be
“strictly limited” (ibid, p. 11). The representative of Trinidad and Tobago
found that a declaration of intent was not sufficient to ensure payment of

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the repatriation grant in the circumstances for which it was intended
(A/C.5/33/SR.41, p. 9). The representative of Canada agreed with the
Commission that the grant should not be paid to a staff member who
remained in the country of his last duty station ; a declaration did not seem
a sufficient guarantee against abuse (ibid, p. 13).

57. In reply to these remarks, the Chairman of the Commission stated
that its proposed reliance on the good faith and word of honour of inter-
national civil servants should be sufficient “as a first step in introducing
administrative control”. In its study, the Commission had found that “in a
few cases” grants had been paid to non-relocating staff and the Commis-
sion’s proposal “was intended to eliminate what was considered to be an
unjustifiable and anomalous payment in such cases” (A/C.5/33/SR.42,

p. 17).

11. The General Assembly Bars Payment to Non-Relocating Staff by
Resolution 33/119

58. Thereafter, a resolution on the Report of the International Civil
Service Commission was introduced — the resolution which was to become
resolution 33/119. In introducing the resolution on behalf of the sponsors,
the representative of Japan declared :

“On the question of the repatriation grant, paragraph 4 made it
clear that evidence of actual relocation would be required, in addition
to a signed declaration by the staff member. It would be the Com-
mission’s task to establish the exact terms.” (A/C.5/33/SR.56,

p. 10.)

This statement is important, for it indicates that all the Commission and
the Secretary-General were to do in implementing resolution 33/119 was
to establish the exact terms of provision of evidence of relocation. It thus
inferentially indicates that what the Commission and the Secretary-Gen-
eral actually did — to promulgate the transitional provision at issue in Staff
Rule 109.5 (f) — conflicted with the clear intent of General Assembly
resolution 33/119.

59. In the debate on the resolution, Mr. Davidson, Under-Secretary-
General for Administration and Management, stated :

“32. Where payment of the repatriation grant was concerned, he
took it that the Commission would show some flexibility in imple-

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menting the practice proposed in section IV, operative paragraph 4.
Since acquired rights were involved, it might prove necessary to refer
the matter to the Administrative Tribunal, and that could create
problems unless the Commission could find some means of resolving
the difficulty.” (A/C.5/33/SR.56, p. 10.)

Moments later, the representative of Barbados stated that his delegation
“would have preferred the deletion of the phrase ‘subject to the terms to be
established by the Commission’ ” in Section IV, paragraph 4, of the draft
resolution ; “unless repatriation was established, he saw no occasion for
payment of the repatriation grant” (ibid, p. 11). The representative of
Belgium followed with this statement :

“As for section IV, paragraph 4, he agreed with the representative of
Barbados that the essential phrase was that referring to the need for
presentation by the staff member of evidence of actual relocation,
rather than the mention of terms to be established by the Commis-
sion.” (Ibid. p. 14.)

This exchange then took place :

“Mr. AKASHI (Japan) explained that the final phrase of para-
graph 4 was considered necessary because certain ambiguous circum-
stances could arise in which more specific guidelines would prove
necessary. For example, would a staff member who presented evi-
dence of relocation years after his repatriation still be entitled to a
grant ? Or, should a staff member who needed the grant to pay for
tickets to return to his country be required to submit evidence of
relocation ? Many such situations could arise, but he trusted that the
Commission would be able to draw up appropriate conditions and
terms. However, he assured the representative of Belgium that the
phrase in question in no way diluted the thrust of the decision in
paragraph 4 but merely provided for its administrative implementa-
tion. Moreover, the Commission would inform the Fifth Committee of
the terms and procedures it established.

52. MR. PIRSON (Belgium) said that, if that was the case, he would
not object to the wording of the paragraph.” (/bid., p. 14.)

Apart from the foregoing inferential rejection of the Under-Secretary-
General’s assumption that the Commission would “show some flexibility”
in implementing the resolution, nothing was said of his claim that acquired
rights were involved. Thereupon resolution 33/119 was adopted by which
the General Assembly :

“4. Decides that payment of the repatriation grant to entitled staff

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members shall be made conditional upon the presentation by the staff
member of evidence of actual relocation, subject to the terms to be
established by the Commission.”

12. The Frustration of Resolution 33/119

A. The Secretary-General’s circular

60. After the adjournment of the Thirty-third Session of the General
Assembly, the Secretary-General issued an Information Circular of 22
January 1979 to members of the staff on the Assembly’s action on per-
sonnel questions. On the repatriation grant, the Circular declared :

“20. The General Assembly decided that payment of the repatria-
tion grant to entitled staff members should be made conditional upon
the presentation by the staff member of evidence of actual relocation,
subject to the terms to be established by the Commission. It will,
therefore, remain for the International Civil Service Commission to
determine the specific terms in implementation of that decision,
including their applicability to staff members in service as of the end
of 1978.” (ST/IC/79/5, pp. 6-7.)

On what basis the Secretary-General ventured to transmute the clear
charge of the relevant paragraph of resolution 33/119, as explained on
behalf of its co-sponsors, from that of ensuring no payment to retiring staff
who do not relocate to making an exception from that rule in favour of
“staff members in service as of the end of 1978” is not apparent. He could
rely solely on the statement of his Under-Secretary, which no delegation
had supported and which three delegations had pointedly not sup-
ported.

B. The ICSC recommends a transitional rule

61. Thereafter, the International Civil Service Commission took up its
charge under resolution 33/119 to establish terms to make payment of the
repatriation grant “to entitled staff members” conditional upon the pre-
sentation by the staff member of evidence of actual relocation. It describes
its performance of that task in these terms :

“23. Finally, the Commission recalled that in its proposal to the
General Assembly it had foreseen the possibility that some special
provision would be needed regarding staff members who had an
expectation of receiving the grant under the existing rule but would no

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

longer be entitled to it under the new rule. The Commission was
informed that the legal advisers of several organizations had studied
the question and come to the conclusion that any entitlement already
earned by a staff member could not be affected retroactively by the
changing of the rule ; but the exercise of further entitlements accruing
after the date of the change would be subject to compliance with the
new condition. That view was supported by the jurisprudence of the
United Nations Administrative Tribunal as quoted by the Tribunal in
paragraph XVI of its judgement A7/DEC/237.

24. Some members questioned whether any acquired right could be
said to exist to payment of the repatriation grant to a staff member
who did not repatriate or relocate himself. In their view, such acquired
rights as might be deemed to exist could only be in respect of persons
who had retired and could not accrue to the benefit of existing
employees whose rights must rest on a true interpretation of the
existing staff regulations rather than an administrative practice con-
trary to the regulation which expressly related repatriation grant to
those employees whom the organizations had an obligation to repa-
triate. The Commission sought an opinion from the Office of Legal
Affairs of the United Nations Secretariat, which indicated that, in so
far as the United Nations Organization itself was concerned, there was
no express or implied provision that only those who actually made use
of the travel entitlement should receive the grant ; the relevant Staff
Rules had been reported to and noted by the General Assembly, which
must accordingly have deemed the rule to be consistent with the intent
and purpose of the Regulations which it had itself approved. On the
basis of the advice received the Commission decided that the require-
ment of relocation should apply only to that part of a staff member’s
entitlement which was earned after the date on which the rule was
changed.” (Report of the International Civil Service Commission,
A/34/30.)

C. The opinion of the Office of Legal Affairs

62, It may be useful to consider the cited legal opinion of the United
Nations Office of Legal Affairs in conjunction with the foregoing passages
of the Commission’s Report and appraise them together, since the latter so
heavily relies upon the former. The whole of the legal opinion, which is
undated but apparently was given to the ICSC in the first quarter of 1979,
reads as follows :

178

“Advice has been requested on the question whether United
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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

Nations Staff Rules and the practice within the common system under
which repatriation grants are paid to certain staff members, even if
they remain in the country of their last duty station after separation,
has been consistent with staff regulation 9.4 and annex IV. It has been
suggested that if such payment had not been within the then appli-
cable Regulations, then a new regulation discontinuing such grants
would simply constitute a discontinuance of an erroneous practice
which by its nature could not have given rise to any legally cognizable
expectancy.

The history of the repatriation grant as well as the wording and
schedule contained in annex IV of the Regulations suggest that the
number of years of expatriate service was considered by the General
Assembly to be the most significant element of the entitlements.
Although the General Assembly defined the recipients of the grant by
reference to the definition of those entitled to repatriation travel, there
is no express or implied provision to the effect that only those who
actually made use of the travel entitlement should receive the
grant.

In annex IV of the Regulations, the General Assembly specifically
left it to the Secretary-General to establish the conditions for payment
of the repatriation grant, and the Secretary-General did this by pro-
mulgating staff rule 109.5 and also by establishing a practice in an
agreement within the Consultative Committee on Administrative
Questions. Staff rule 109.5 (f), which even provided for discretion to
pay the grant to persons whose final service is within their home
country and who could not therefore be entitled to repatriation travel,
was — like all Staff Rules — reported to and noted by the General
Assembly, which must accordingly have deemed the rule to be con-
sistent with the intent and purpose of the Regulation.

It is therefore clear from the legal viewpoint (and indeed un-
questionable under recent United Nations Administrative Tribunal
Judgements) that the Staff Rules and payment practices hitherto
governing entitlement to the repatriation grant were within the Sec-
retary-General’s authority ; and, although subject to change to the
same extent as other conditions of appointment of staff, they gave rise
to valid and enforceable entitlements and obligations.” (A/C.5/34/
CRP.8.)
501 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

D. The texts of Staff Regulation 9.4, Annex IV and Staff Rule 109.5

63. In order to analyse the opinion of the Office of Legal Affairs and the
reliance of the ICSC upon it, it is necessary to set out the texts of the
pertinent Staff Regulation and Rule as they then were. They read :

“Regulation 9.4 : The Secretary-General shall establish a scheme for
the payment of repatriation grants within the maximum rates and under
the conditions specified in annex IV to the present regulations.”

“Annex IV
REPATRIATION GRANT

In principle, the repatriation grant shall be payable to staff members
whom the Organization is obligated to repatriate. The repatriation grant
shall not, however, be paid to a staff member who is summarily dismissed.
Detailed conditions and definitions relating to eligibility shall be deter-
mined by the Secretary-General. The amount of the grant shall be
proportional to the length of service with the United Nations, as fol-
lows :

Staff member with
Years of continuous a spouse or dependent
service away from child at the time
home country of separation

(Weeks of pensionable remuneration less staff
assessment, where applicable)

l 4

12 or more 28 ee

“Rule 109.5

REPATRIATION GRANT

Payment of repatriation grants under regulation 9.4 and annex IV
to the Staff Regulations shall be subject to the following conditions
and definitions :

{a} ‘Obligation to repatriate’, ... shall mean the obligation to
return a staff member and his or her spouse and dependent children,
upon separation, at the expense of the United Nations, to a place
outside the country of his or her duty station.

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(b) ‘Home country’, ... shall mean the country of home-leave
entitlement ...

(d) Payment of the repatriation grant shall be calculated on the
basis of the staff member’s pensionable remuneration. ..

(e} Payment shall be at the rates specified in annex IV to the Staff
Regulations.

(f) No payments shall be made to local recruits under rule 104.6, to
a staff member who abandons his or her post or to any staff member
who is residing at the time of separation in his or her home country
while performing official duties, provided that a staff member who,
after service at a duty station outside his or her home country, is
transferred to a duty station within that country may be paid on
separation a full or partial repatriation grant at the discretion of the
Secretary-General.

(zg) A dependent child, for the purpose of repatriation grant, shall
mean a child recognized as dependent... at the time of the staff
member’s separation from service. The repatriation grant shall be
paid at the rate for a staff member with a spouse or dependent child to
eligible staff members regardless of the place of residence of the
spouse or dependent child.

(i) Loss of entitlement to payment of return travel expenses under
rule 107.4 shall not affect a staff member’s eligibility for payment of
the repatriation grant.

(j) In the event of the death of an eligible staff member, no payment
shall be made unless there is a surviving spouse or one or more
dependent children whom the United Nations is obligated to return to
their home country...”

E. Analysis of the opinion of the Office of Legal Affairs

64. The opinion of the Office of Legal Affairs makes, in its fourth and
last paragraph, an important point which, to the extent that the judgement
of the Administrative Tribunal in Mortished v. the Secretary-General can be
sustained, is vital to that judgement : “the Staff Rules and payment prac-
tices hitherto governing entitlement to the repatriation grant were within
the Secretary-General’s authority”. But much of the remainder of the
opinion does not withstand analysis, for these reasons :

— The opinion assumes, and repeats the assumption, that the pertinent
United Nations Staff Rules and “the practice within the common system”
were consistent, and, after so assuming, asks whether those rules and that

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practice have been consistent with Staff Regulation 9.4 and its Annex IV.
The opinion, by so assuming, takes a large step towards the conclusion
which the opinion reaches. But the assumption is unjustified. The practice
within the common system was not (and is not) consistent with the Staff
Rules of the United Nations. To the extent that the specialized agencies
had different staff rules from those of the United Nations, as certainly they
did, the practice may have been consistent with the rules of those agencies.
But to treat the United Nations situation as the same as that of the
specialized agencies is inaccurate, because of their differing rules. The Staff
Rules of the United Nations were indeed consistent with its Staff Regu-
lations, as the opinion of the Office of Legal Affairs correctly concludes.
By the terms of Rule 109.5 (a), the “obligation to repatriate”, as used in
Annex IV of the Staff Regulations, shall mean the obligation to return a
staff member to a place outside the country of his or her duty station. This
rule is consistent with Regulation 9.4 and its Annex IV, in so far as it
excludes payment of repatriation grants to non-relocating staff. But the
practice has been to the contrary.

— The opinion, in its second paragraph, states that the most significant
element of the entitlement to the repatriation grant was considered by the
General Assembly to be the number of years of expatriate service. In view
of the history of the grant (see, in particular, paras. 54 and 116), that is a
questionable conclusion. (The ICSC re-stated the questionable character
of that conclusion at another point in its 1978 report in addition to that
quoted in para. 54: see A/33/30, para. 191.) The number of years of
service appears to have been taken primarily as a convenient formula for
calculating the amount of, rather than entitlement to, the grant.

— The opinion, in its second paragraph, declares that there is no express
or implied provision to the effect that only those who actually made use of
the travel entitlement should receive the grant. The inference seems to be
that those who receive the grant need not travel. Any such inference is
unwarranted. First, the definition of “obligation to repatriate” of Rule
109.5 (a) clearly imports returning to a place outside the country of the last
duty station. Second, the provision of Rule 109.5 (g) — to which the opinion
does not refer — that the repatriation grant shall be paid to eligible staff
members “regardless of the place of residence of the spouse or dependent
child” infers that it shall not be paid to the staff member regardless of the
place of his or her residence. Third, if there is no express or implied
provision to the effect that only those who actually made use of the travel
entitlement should receive the repatriation grant, it does not follow that
those receiving the grant need not travel. Any such implication is disposed

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of by the terms of Staff Rule 107.4 (6), which provides, “Entitlement to
return travel expenses shall cease if travel has not commenced within six
months after the date of separation’, when those terms are read together
with the practice of treating a staff member as eligible for payment of the
repatriation grant for a longer period. (That practice was codified in
August 1979, with the issuance of Staff Rule 109.5 fe) : “Entitlement to
repatriation grant shall cease if no claim for payment of the grant has been
submitted within two years after the effective date of separation”)

— The second sentence of the third paragraph of the legal opinion relies
on the Staff Rule 109.5 (f) (as it then was) “which even provides for
discretion to pay the grant to persons whose final service is within their
home country and who could not therefore be entitled to repatriation
travel ...”. This rule, the opinion notes, was “reported to and noted by the
General Assembly, which must accordingly have deemed the rule to be
consistent with the intent and purpose of the Regulation”. This is a
remarkable reading of what was Rule 109.5 (f. That paragraph then
provided that,

“No payments shall be made to . . . any staff member who is resid-
ing at the time of separation in his or her home country while per-
forming official duties, provided that a staff member who, after ser-
vice at a duty station outside his or her home country, is transferred
to a duty station within that country may be paid on separation a
full or partial repatriation grant at the discretion of the Secretary-
General.”

That is to say, a staff member who has already been repatriated may be
paid, at the discretion of the Secretary-General, either a full or partial
repatriation grant. To infer from this that the Secretary-General is free —
still less obliged — to make repatriation payments to those who never
repatriate but who remain indefinitely abroad at their last duty station is
extraordinary. Any implication that this discretionary authority of the
Secretary-General gave non-repatriating staff members “valid and en-
forceable entitlements” would seem unsustainable. The fact that Rule
109.5 (f) was communicated to the General Assembly which must have
viewed it as consistent with Regulation 9.4 proves nothing for the issue
which the legal opinion addresses, and for the opinion to suggest that it
does is profoundly questionable. .

— The last sentence of the opinion conjoins a correct statement about
the scope of the Secretary-General’s authority with a conclusion about
“valid and enforceable entitlements and obligations” which is not wholly
correct or complete. Once again the Staff Rules and the practice are

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assumed to be consistent. The opinion acknowledges that what it views as
valid and enforceable entitlements are “subject to change to the same
extent as other conditions of appointment of staff”, which of itself is no
affirmation of any acquired right. The opinion does not expressly state that
any such entitlements are valid and enforceable only while in force, though
this may be taken for granted. But where it enters upon questionable
ground is in its inference that the Staff Rules and practice gave rise to valid
and enforceable entitlements and obligations in respect of payment of the
repatriation grant without provision of evidence of relocation. As has been
shown, the arguments it advances to support that conclusion do not
support it, certainly not sufficiently. Arguments which have been else-
where advanced to support the more far-reaching — and even less sus-
tainable — conclusion that such entitlements constitute an acquired right
will be addressed in their place.

13. The Failure to Apply Staff Rule 104.7

65. It is noteworthy that Staff Rule 104.7 does not figure in the opinion
of the Office of Legal Affairs, in the practice of the Secretary-General in
respect of the repatriation grant in so far as the Court has been informed
of it, or in the judgement of the Administrative Tribunal in Mortished v.
the Secretary-General. That rule in pertinent part provides :

“Rule 104.7
INTERNATIONAL RECRUITMENT

(a) Staff members other than those regarded under rule 104.6 as
having been locally recruited shall be considered as having been
internationally recruited. The allowances and benefits in general
available to internationally recruited staff members include : payment
of travel expenses upon initial appointment and on separation for
themselves and their spouses and dependent children, removal of
household effects, non-resident’s allowance, home leave, education
grant and repatriation grant.

(c) A staff member who has changed his or her residential status in
such a way that he or she may, in the opinion of the Secretary-General,
be deemed to be a permanent resident of any country other than that
of his or her nationality may lose entitlement to non-resident’s allow-
ance, home leave, education grant, repatriation grant and payment of
travel expenses ... if the Secretary-General considers that the con-
tinuation of such entitlement would be contrary to the purposes
for which the allowance or benefit was created . . .”

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66. The rule is relevant in more than one respect. In paragraph (a), it
lists the repatriation grant as an “allowance and benefit” which is “in
general available”. That is not language suggestive of an acquired right.
Paragraph (c) does speak of an “entitlement” to the repatriation grant, but
provides that that entitlement may be lost — again, not a proviso suggestive
of an acquired right. The entitlement may be lost if, in the opinion of the
Secretary-General, a staff member is “deemed to be a permanent resident”
of a country other than his or her nationality. That is to say, such a staff
member need not have been granted permanent residence as a matter of
the law of the country of the duty station ; if the Secretary-General deems
the staff member to have become a permanent resident, that suffices. The
Secretary-General could reasonably conciude that a staff member who
declines to provide evidence of relocation from the country of last duty
station, and who indeed affirms an intention to live indefinitely in the
country of the last duty station, is to be deemed a permanent resident of
that country and that, in that circumstance, continuation of entitlement to
payment of the repatriation grant “would be contrary to the purposes for
which the allowance or benefit was created”. As the 1978 Report of the
International Civil Service Commission puts it,

“to pay repatriation grant to a person who remained permanently in
the country of his last duty station was incompatible with the purpose
of the grant . . . The expatriate staff member’s choice to remain in the
duty-station country certainly meant that he had, for some time,
ceased to be truly expatriate.” (A/33/30, p. 62.)

And in view of the fact that the Secretary-General possesses such express
discretionary authority in respect of the repatriation grant, it is the more
difficult to regard entitlement to the grant as an acquired right.

14. The Secretary-General Issues Transitional Rule 109.5 (f)

67. The Secretary-General issued a Bulletin of 22 August 1979 which,
“with effect from 1 January 1979”, amended the Staff Rules “as a conse-
quence of the changes to... the repatriation grant... adopted by the
General Assembly in its resolution 33/119 of 19 December 1978”. It
specified that Rule 109.5 on the repatriation grant “is amended to make the
payment of the grant conditional upon presentation of actual evidence of
relocation with respect to periods of eligibility arising after 1 July 1979”
(ST/SGB/Staff Rules/1/Rev.5). Rule 109.5 as amended in pertinent part
provided :

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“(d) Payment of the repatriation grant shall be subject to the pro-
vision by the former staff member of evidence of relocation away from
the country of the last duty station. Evidence of relocation shall be
constituted by documentary evidence that the former staff member
has established residence in a country other than that of the last duty
station.

(e) Entitlement to repatriation grant shall cease if no claim for
payment of the grant has been submitted within two years after the
effective date of separation.

(f) Notwithstanding paragraph (d) above, staff members already in
service before 1 July 1979 shall retain the entitlement to repatriation
grant proportionate to the years and months of service qualifying for
the grant which they already had accrued at that date without the
necessity of production of evidence of relocation with respect to such
qualifying service.”

15. Reaction in the General Assembly Against the Interpretation of
Resolution 33/119 by the ICSC and the Secretary-General :
the Adoption of Resolution 34/165

68. Reaction in the General Assembly in 1979 to the interpretation of
resolution 33/119 by the ICSC and the Secretary-General was critical.
That reaction will be set forth in extenso, because the construction of it by
the Administrative Tribunal is important to its judgement in Mortished v.
the Secretary-General and because the question of whether or not the
judgement of the Administrative Tribunal gave effect to or derogated from
General Assembly resolution 34/165 is central to the question before the
Court.

69. The representative of Australia, referring to the pertinent paragraph
of the ICSC report, expressed interest in the opinion of the Office of Legal
Affairs which, “surprising as it might seem . . . made the repatriation grant
appear to be an acquired right” (A/C.5/34/SR.38, p. 16). The represen-
tative of the United States then declared :

“65. In establishing the conditions for entitlement to repatriation
grants, ... ICSC had stipulated that staff members already in service
before 1 July 1979 should retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the
grant which they had already accrued at the date without the necessity
of production of evidence of relocation... The United States Go-
vernment strongly believed that that decision distorted the General
Assembly’s original intent at the time when the repatriation grant had
been instituted. Nor was it in accordance with the provisions of
resolution 33/119...

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

66. Because the United Nations administration had failed to pro-
vide adequate internal controls to ensure that the grant was paid only
to individuals who actually left their last country of assignment, the
General Assembly had decided to include in resolution 33/119 the
requirement that payment of the repatriation grant should be ‘condi-
tional upon the presentation by the staff member of evidence of actual
relocation, subject to the terms to be established by the Commis-
sion’... As a sponsor of that resolution, the United States believed
that all member States had understood that the phrase ‘subject to the
terms to be established by the Commission’ meant solely establishing
the documentation which a former staff member must submit in order
to qualify for a repatriation grant. The United States was unable to
accept the reasoning that the absence of United Nations internal
controls entitled an expatriate employee to receive a repatriation grant
for service prior to the institution of such controls, even though they
were not in fact repatriated outside the country of last service.”
(A/C.5/34/SR.46, pp. 13-14.)

70. The representative of Italy followed. He advocated that without
precluding staff’s freedom of movement, “a system should be evolved for
determining fulfilment of the conditions for entitlement to the relocation
grant”. His delegation had misgivings about the terms of entitlement
promulgated which “required the approval of the General Assembly”
(ibid, p. 15).

71. The representative of Japan stated :

“His delegation was prepared to support the decision of ICSC
appearing in paragraph 25 of its report concerning the repatriation
grant in the case of present staff members. The repatriation grant
should be paid in accordance with the rules in force at the time of
repatriation. His delegation regretted, therefore, that the Commission
had approved different treatment for services performed before 1 July
1979.” (bid. p. 19.)

72. The representative of Australia then declared :

187

6

‘3. ... his delegation supported the proposal . . . whereby in future
the repatriation grant would be paid only to staff members who were
indeed repatriated. That proposal, if adopted, would override the legal
opinion referred to in paragraph 24 of the report of ICSC.

4. As indicated in the note by the Secretariat . . . staff rule 109.5 had
been reported to and noted by the General Assembly, which must
accordingly have deemed the rule to be consistent with the intent and
purpose of the staff regulation. His delegation noted, however, that
509 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

nowhere in the document was it stated that the repatriation grant was
payable whether or not the staff member was repatriated. Staff rule
109.5 (f) indeed gave the opposite impression, in that it gave the
Secretary-General discretion to pay a grant to a staff member who at
the time of separation resided in his home country. In effect, the rule
appeared to permit the payment of travel costs of, for example, a
United States staff member whose home was in Honolulu and who,
after long service in Tokyo, had been transferred and served for a few
years in New York prior to retirement. That in no way implied
endorsement of the idea of paying a repatriation grant to a person who
was not repatriated.

5. The legal opinion, in fact, appeared to assume that the repatria-
tion grant was equivalent to something like the payment of travel costs
on retirement ... however . . . It was impossible to interpret the rule as
meaning that the repatriation grant would be paid to any staff member
who was entitled to be repatriated, irrespective of whether or not he
was repatriated. For reasons of language, common sense and even law,
the opinion given by the Office of Legal Affairs was wrong.” (A/
C.5/34/SR.47, pp. 3-4.)

73. He was followed by the representative of the Syrian Arab Republic,
who stated :

“15. His delegation supported the view of a number of delegations
that the repatriation grant should be paid only to staff members who
returned to their country of origin.” ({bid., p. 5.)

74. The representative of the Federal Republic of Germany con-
cluded :

“With regard to the repatriation grant, the major question in that
connection appeared to be acquired rights, because in order to protect
acquired rights to the repatriation grant the interpretation that had
been used in the past would have to be maintained. However, in the
event that an unduly liberal interpretation had prevailed, to continue
to use the same criterion would be tantamount to carrying the prin-
ciple of the protection of acquired rights too far; his delegation
therefore supported the view of the representative of the United States
that the repatriation grant should be given only to those who really
were repatriated.” (Ibid, p. 7.)

75. The representative of the United Kingdom held that :

“34, With regard to the repatriation grant, his delegation ... did
not agree with the opinion of the Office of Legal Affairs. Although the
wording of the Staff Regulation was somewhat ambiguous, it should

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

be recognized that the grant in question was a repatriation grant, not a
resettlement grant or an extra lump-sum received on retirement. It
could not be claimed that the repatriation grant should be paid in all
cases, irrespective of whether or not the staff member in question
returned to his country of origin. The grant should be given only to
those who actually made use of their travel entitlement in order to
return to their own country. His delegation would support the draft
resolution to be submitted by the United States delegation, since it
believed that the draft resolution reflected the correct interpretation of
the Staff Rules and Regulations and that no acquired rights could be
deemed to exist.” ({bid, p. 8.)

76. He was followed by the representative of Spain, who stated :

“38. ... In addition to measures in conformity with the mandate
given in General Assembly resolution 33/119, that document also
provided that ‘staff members already in service before 1 July 1979
shall retain the entitlement to repatriation grant...’. In connection
with that striking exception to the provisions of the rest of the docu-
ment, his delegation wished to make it quite clear that the relevant
Spanish word ‘repatria’ was defined by the Dictionary of the Spanish
Academy as ‘to return one to his homeland’. Therefore his delegation
shared the view of the ICSC members who, ... had ‘questioned
whether any acquired right could be said to exist to payment of the
repatriation grant to a staff member who did not repatriate or relocate
himself’. His delegation did not understand the motivation for what
was stated ... concerning the conditions fixed by ICSC for the repa-
triation grant, regarding it as a partial distortion of the clear mandate
contained in General Assembly resolution 33/119, ... and believing
that in the face of that unequivocal requirement there could be no
distinction of retroactivity...” (A/C.5/34/SR.47, p. 9.)

77. The representative of the Union of Soviet Socialist Republics
declared :

“9, The Soviet delegation was also concerned about the way in
which the provisions relating to the repatriation grant were applied.
Under a General Assembly decision, the grant was to be paid only to
persons who returned to their own countries. Non-adherence to the
principle had resulted in unjustified expenditure and showed the
inadequacies of the internal control system.” (A/C.5/34/SR.55,

p. 9.)

78. The Chairman of the International Civil Service Commission
defended the action of the ICSC in these terms :

189

“39, In its report to the General Assembly at its thirty-third ses-
sion... ICSC had stated that it had formed the view that the repa-
511

190

APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

triation grant should not be paid to staff members who, on separation
remained in the country of their last duty station and so incurred no
expenses of relocation. The Fifth Committee had endorsed the Com-
mission’s view and had included in General Assembly resolution
33/119 a paragraph... which read : ‘Decides that payment of the
repatriation grant to entitled staff members shall be made conditional
upon the presentation by the staff member of evidence of actual
relocation, subject to the terms to be established by the Commission.’
That paragraph called for two comments. Firstly, the General Assem-
bly had clearly mandated the Commission to establish the terms under
which the grant would be paid. Secondly, the resolution, like the
Commission’s own report, referred to ‘relocation’. The reasons why
the Commission had concluded that the grant should be paid only toa
staff member returning to his own home country were explained in . ..
the 1978 report.

40. The Commission . . . considered the extent to which the restric-
tion now placed on the enjoyment of the grant could be made app-
licable to serving staff members... the relevant provisions of the Staff
Rules and Regulations referred explicitly not to staff members who
returned to their home country but to ‘staff members whom the
Organization is obligated to repatriate’. It was on that basis that the
practice of paying the grant to staff members who did not leave their
duty station had been established. The majority of members of the
Commission had felt that that practice was in conformity with the
provisions of the Staff Rules and Regulations. Consequently, the
Commission had ruled that the staff members concerned had in fact
earned an entitlement, since the repatriation grant was calculated on a
progressive scale...

41. The Commission had taken heed of the legal advice given it, not
only by the Legal Counsel of the United Nations but also by the legal
advisers of a number of other organizations ; it had also taken into
account a judgment by the Administrative Tribunal of ILO which
stated categorically that ‘benefits and advantages accruing to a staff
member for service rendered before the entry into force of an amend-
ment cannot be prejudiced’. The Commission, which did not claim to
be a legal committee, had taken a pragmatic decision in the interests of
economy, judging that it would be unreasonable to impose upon
organizations a measure which would certainly be appealed by staff
members and which, given its jurisprudence, at least one of the
administrative tribunals would reject as being contrary to the funda-
mental principles of labour law. The General Assembly was, of course,
free to overrule the Commission, but it should be noted that the
governing bodies of the majority of the other organizations in the
common system had, since July 1979, approved the incorporation of
the measures announced by the Commission into their organizations’
staff regulations.” (bid. pp. 9-10.)
512 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

79. The Under-Secretary-General for Administration, Finance and
Management followed. He stated :

“59. ... he considered it his duty to stress that the decisions taken
by ICSC under its mandate in General Assembly resolution 33/119
were already being implemented by all the agencies belonging to the
common system with effect from 1 July 1979, which was the date
stipulated by ICSC in its decision. Moreover, it should be mentioned
that, in a number of agencies, the ICSC decision had been considered
and accepted by the respective legislative organs when they had
adopted the revisions to their respective staff rules and regulations. In
the United Nations, the ICSC decision had already been incorporated
into the Staff Rules. The provisions contained in part II of draft
resolution A/C.5/34/L.23 would have the effect of revoking a deci-
sion which was in process of implementation by the agencies of the
common system.

60. Thus, the most important consideration to be borne in mind
was that the proposed decision would raise serious doubts as to
whether ICSC would be able to discharge authoritatively the highly
important task entrusted to it, namely to regulate and co-ordinate the
conditions of service applied by the United Nations and the special-
ized agencies .. . Such a decision would also inevitably be viewed by
the United Nations staff as discriminatory treatment and would
undoubtedly lead to appeals to the Administrative Tribunal with all
the potential consequences that such action might entail.

61. Finally, it should be noted that it had been the long-standing
practice in the Organization to implement policy change in the least
disruptive manner, either in order to respect acquired rights or simply
to ensure a smooth transition from one set of arrangements to
another . . . It wasin the same spirit that the Secretary-General and his
colleagues in ACC believed that the Fifth Committee should accept
the transitional arrangments reflected in the ICSC decision regarding
the requirement for evidence of relocation as a condition for payment
of the repatriation grant.” (A/C.5/34/SR.60, pp. 11-12.)

80. When the representative of Sierre Leone asked for a clarification of
the draft resolution before the Fifth Committee, the Under-Secretary-
General made the following important statement about the intent and
effect of what came to be General Assembly resolution 34/165 :

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513 _ APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

“draft resolution A/C.5/34/L.23 derogated from the ICSC decision
in stipulating that, with effect from 1 January 1980, staff members
would not be entitled to any repatriation grant unless they provided
evidence of relocation away from the country of their last duty station.
In effect, that meant that no period of service by staff members prior
to 1 January 1980 would be taken into account unless they also
fulfilled the conditions required to establish their entitlement to the
repatriation grant. Hence, the ICSC decision not to apply the new
provisions to any period of service prior to 1 July 1979 would simply
be revoked.” (Ibid, p. 23.)

81. An exchange then ensued among the representatives of Syria, Mo-
rocco and the Federal Republic of Germany, in which the former two
representatives advocated restricting payment of the repatriation grant to
those who return to their home country while the latter supported the
provision of the draft resolution before the Committee which provided
that the repatriation grant should be paid to any staff member who
relocated away from the country of the last duty station, no matter what
the country. The Under-Secretary-General then spoke for a third time, de-
claring that :

“he did not agree with the statement by the representative of the
Federal Republic of Germany that resolution 33/119 made no pro-
vision for transitional measures similar to those submitted in the
ICSC report. In fact, resolution 33/119 stated that ‘payment of the
repatriation grant to entitled staff members shall be made conditional
upon the presentation by the staff member of evidence of actual
relocation’ and it went on to say ‘subject to the terms to be established
by the Commission’. ICSC had taken a decision on the matter and had
set 1 July 1979 as the date after which those concerned should pro-
vide evidence of their relocation.” (Ibid. p. 14.)

82. The representative of the Federal Republic of Germany re-
plied :

“74. ...that the intention of the sponsors of the draft resolution
was not to change the terms of payment of the repatriation grant but
simply to specify that staff members should provide evidence of re-
location away from the country of the last duty station and to set a
date for the implementation of that provision” (A/C.5/34/SR.60,
p. 15).

83. The representative of Morocco then asked what documentary
evidence of relocation should be produced (ibid). The representative of
Algeria cautioned that more study was needed before a decision was taken

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on the repatriation grant (ibid. ). But the Chairman indicated that he did not
agree with the Algerian representative (ibid. ).

84. The Under-Secretary-General then intervened on the issue for the
fourth time, in a statement which once again is significantly revealing of
the intent of the draft resolution then before the Fifth Committee :

“78. MR. DEBATIN (Under-Secretary-General for Administration,
Finance and Management) recalled that at the previous session, the
General Assembly had decided that the repatriation grant should be
made conditional upon the presentation by the staff members of
evidence of actual relocation, subject to the terms to be established by
ICSC. ICSC had subsequently decided that, with effect from 1 July
1979, payment of the repatriation grant would be subject to the pro-
vision by the former staff member of evidence of relocation away from
the country of the last duty station. As for the evidence of relocation,
ICSC had decided that it would be constituted by documentary evi-
dence furnished by certain authorities of the country, by the senior
United Nations official in the country, or by the former staff mem-
ber’s new employer. The effect of the draft resolution would be that
staff members who, by virtue of the ICSC decision, would be entitled
to part of the repatriation grant for periods of service prior to 1 July
1979 without providing evidence of relocation would be unable to
receive that part of the repatriation grant.” ({bid, pp. 15-16.)

85. The representative of the United States made this immediate
reply :

“79. ... when the General Assembly had adopted resolution 33/

119, it had wanted to make sure that the repatriation grant would be
paid only to staff members relocating away from the country of the
last duty station, and it had asked ICSC to specify what documentary
evidence of relocation that staff members should provide, but not to

set dates on which the new provisions would come into effect” (ibid,

p. 16).

86. The representative of Sierre Leone then proposed deletion from the
draft resolution before the Committee of the passage concerning the
repatriation grant (which was the very passage adopted in what came to be
resolution 34/165 and which is at issue in the Mortished proceedings)
(ibid.). His proposal was opposed by the representative of Tunisia (ibid. ).
The representative of the USSR supported an amendment which would
make clear that those receiving a repatriation grant must return to their
countries of origin (ibid). That, the representative of Morocco observed
was what the Arabic version of the document said (ibid).

87. At the next meeting, the representative of the Federal Republic of
Germany made the following statement :

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“after holding consultations on draft resolution A/C.5/34/L.23 the
sponsors still believed that paragraph 2 of part II was valid in sub-
stance, but recognized that new facts had emerged. The principal fact
was that several agencies had already adopted the ICSC recommen-
dations, so that adoption of the paragraph might lead to divergencies
in the system. As the sponsors considered that the matter was a
relatively minor one, they had decided to delete paragraph 2 of
part I] and to renumber paragraph 3 accordingly.” (A/C.5/34/SR.62,

p. 2.)

88. An untidy exchange then ensued. The United States reintroduced
what the sponsors had just withdrawn, proposing to add to the draft
resolution the provision :

“Decides that effective 1 January 1980 no staff member shall be
entitled to any part of the repatriation grant unless evidence of relo-
cation away from the country of last duty station is provided.”
(Ibid.)

In substance, the position of the United States was opposed by the rep-
resentatives of Sierre Leone, Nigeria and Peru and supported by the
representatives of Canada, the Syrian Arab Republic, the USSR, Morocco,
apparently India, Australia, Japan, New Zealand, Yugoslavia, Uruguay
and Spain. Some of these representatives also supported a subamendment
to the US amendment introduced by the representative of the Syrian Arab
Republic which would have confined payment of the repatriation grant
to those returning to their country of origin. That subamendment was
defeated by a vote of 45 to 18, with 26 abstentions (ibid, p. 5). The United
States amendment was thereupon adopted by 59 votes to 5, with 24
abstentions. Thereafter, the whole draft section was adopted by a vote of
87 to none, with 3 abstentions, and later, the resolution as a whole was
adopted with no negative votes in Committee and in plenary session.

16. The Intent of the General Assembly in adopting
Resolution 34/165

89. The debate in the Fifth Committee has been so fully reproduced
because it is critical to an understanding of what the General Assembly
intended in adopting resolution 34/165. It is believed that that record
demonstrates the following :

— the large majority of the General Assembly was of the view that
payment of the repatriation grant to staff members who remain in the
country of their last duty station was not consistent with the Staff Regu-
lations and Rules as they existed before the promulgation of the transi-

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tional Staff Rule 109.5 {f} and as they would be with the repeal of that
transitional rule (see paras. 52, 56, 59, 69-77, 82-83, 85-88, supra) ;

— the large majority of the General Assembly was of the view that, in
issuing the transitional rule, the ICSC and the Secretary-General acted in
derogation of the terms and intent of resolution 33/119 (see paras. 68-77,
81-88, supra) ;

— the responsible United Nations Under-Secretary-General recognized
and affirmed that, if resolution 34/165 were to be adopted (in the terms in
which it was adopted), it would manifest the intent of the General Assem-
bly to deny al! staff members any part of the repatriation grant unless they
provided evidence of relocation away from the country of their last duty
station, and would have that effect ; that no period of service prior to
1 January 1980 would be taken into account unless staff members fulfilled
this evidentiary condition of entitlement ; and that the ICSC recommen-
dation and the transitional rule implementing it would “simply be
revoked”. “The effect of the draft resolution would be that staff members
who, by virtue of the ICSC decision, would be entitled to part of the
repatriation grant for periods of service prior to 1 July 1979 without
providing evidence of relocation would be unable to receive that part of the
repatriation grant” (see paras. 80, 84, supra) ;

— the General Assembly heard, understood and accepted these conclu-
sions of the Under-Secretary-General and adopted resolution 34/165 with
a view to assuring that these conclusions would be given effect as of
1 January 1980.

90. Despite the clarity and vigour of this record, the Administrative
Tribunal took another view of it which will be shortly examined.

III. THE ADMINISTRATIVE TRIBUNAL’S JUDGEMENT IN MORTISHED
Vv. THE SECRETARY-GENERAL

91. In its judgement in Mortished v. the Secretary-General of the United
Nations the Administrative Tribunal concluded that,

“By making payment of the Applicant’s repatriation grant condi-
tional on the production of evidence of relocation, the Respondent
failed to recognize the Applicant’s acquired right, which he held by
virtue of the transitional system in force from 1 July to 31 December
1979 and set forth in Staff Rule 109.5 (f).” (Para. XVI.)

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In so deciding, the Tribunal reached certain anterior conclusions, which
will be addressed in the turn in which the Tribunal proffered them. Then
the Tribunal’s main conclusion will be analysed.

1. Were Special, Contractual Obligations of Relevance Assumed Towards
Mortished ?

92. In paragraph VI of its judgement, the Tribunal held :

“The Tribunal must now consider whether the Applicant has rights
on which he may rely as regards the repatriation grant.

The Tribunal notes that at the time of his appointment to the United
Nations on 30 July 1958, the Applicant, who had started work with
ICAO on 14 February 1949, received from the Office of Personnel a
personnel action form which expressly stated : “Service recognized as
continuous from 14 February 1949’ and ‘Credit towards repatriation
grant commences on 14 February 1949.’

Although these statements do not appear in the letter of appoint-
ment itself, they nevertheless unquestionably constitute the explicit
recognition by the United Nations of entitlement to the repatriation
grant, and validation for that purpose of more than nine years’ service
already completed with ICAO.

In the Applicant’s case, a formal reference was thus made at the
time of appointment to the repatriation grant and to the principle of
the relationship between the amount of that grant and length of
service. As a result, the Applicant is in the position noted by the
Tribunal in Judgements Nos. 95 and 142 cited above, namely, that
special obligations towards him were assumed by the United Na-
tions.”

It is submitted that the conclusions which the Administrative Tribunal
draws from its analysis of the personnel action form are unfounded for
several reasons.

93. The “Letter of Appointment” of Mortished to which the Tribu-
nal makes reference in general terms in paragraph II of its judgement
begins :

“You are hereby offered a permanent appointment in the Secretar-
iat of the United Nations, in accordance with the terms and conditions
specified below and subject to the provisions of the Staff Regulations
and Staff Rules together with such amendments as may from time to
time be made to such Staff Regulations and such Staff Rules...”

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The letter dated 5 August 1958 describes Mortished’s initial assignment
and salary but says nothing of the various allowances to which Morti-
shed is entitled except that the salary specified does not include such
allowances. Mortished accepted appointment on 15 August 1958 in
these terms :

“Thereby accept the appointment described in this letter, subject to
the conditions therein specified and to those laid down in the Staff
Regulations and the Staff Rules. I have been made acquainted with
these Regulations and Rules, a copy of which has been transmitted to
me with this letter of appointment.” (Mortished v. the Secretary-
General of the United Nations, Respondent’s Answer, Annex 14.)

A letter to Mortished of 21 March 1958 (negotiations about Mortished’s
proposed transfer took some time) attaches an Annex which sets out his
various allowances. Specification is extensive: the Annex covers travel
expenses, movement of household goods, excess baggage, costs of instal-
lation, dependency allowances, education grant, non-resident’s allowance,
pension fund rights, and home leave entitlements. Nothing whatsoever is
said of a repatriation grant. (Ibid, Ann. 15.)

94. When Mortished was about to enter upon duty at the United
Nations, he received from the Office of Personnel a personnel action form
which contained footnoted notations to his designation of a “Permanent
Appointment”, among which were the following :

“Service recognized as continuous from 14 February 1949.

Entitled to Installation Grant and Dependency Rate. Credit toward
repatriation grant commences on 14 February 1949.

. Entitled to transportation of household effects. Next home leave
entitlement in 1960.”

(Emphasis supplied.) (As quoted in I.C.J. Pleadings, Application for
Review of Judgement No. 273 of the United Nations Administrative
Tribunal, Written Statement of the United States of America, U, A.)

It is understood that, in United Nations contractual usage, a personnel
action form such as this is not regarded as part of the contract between a
staff member and the United Nations. However, even if it is treated as part
of the contract — and the Tribunal infers that it is, for this is the whole basis
of its concluding that “special obligations” were assumed by the United
Nations towards Mortished in respect of the repatriation grant — the
notation does not sustain the conclusion which the Tribunal reaches. On
the contrary, the notation belies the Tribunal’s conclusion, for two rea-
sons :

— The personnel action form itself specifies that Mortished is “entitled
to an installation grant and dependency rate, “entitled” to transportation
of household effects, that he enjoys home leave “entitlement”, but only
that, “Credit toward repatriation grant commences on 14 February 1949”.

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The Administrative Tribunal disregards this distinction by concluding that
the notation constitutes “the explicit recognition” by the United Nations
of “entitlement” to the repatriation grant. Yet the distinction between an
entitlement and a credit is considerable. One has a rightful claim to an
entitlement but a “credit toward” something is or may be merely compu-
tative.

— But, if one overlooks the distinction made in the personnel action
form on which the Tribunal relies between “entitlements” to various
benefits and “credit” toward the repatriation grant, what does the notation
about the repatriation grant say ? From the weight which the Tribunal
assigns to this notation — that by reason of it “special obligations towards”
Mortished “were assumed by the United Nations” — one would suppose
that special relevant obligations were so assumed. In fact, this is not the
case. The notation simply speaks of “repatriation grant”. It says nothing
whatsoever about the conditions of that grant. It sheds no light whatsoever
on whether, as a condition of entitlement to the grant, Mortished would or
would not have to leave the country of his last duty station, or furnish
evidence in that regard. Thus, in regard to the question at issue, at issue
before the Administrative Tribunal and now before this Court, the nota-
tion on which the Tribunal relied to show that the United Nations assumed
special obligations towards Mortished shows no such thing.

95. The Tribunal’s reliance on the notation on the personnel action
form is the less persuasive since the Tribunal does not cite and cannot cite
any evidence to sustain the claim that Mortished in 1958 understood that
notation to mean that he would be entitled to a repatriation grant regard-
less of whether he left the country of his last duty station. That is under-
standable, for any such claim would be inherently implausible, and for
more than one reason. First, the question of a repatriation grant was not
brought to Mortished’s attention in the annex to the letter of 21 March
1958 which listed his various allowances and said nothing of it. Second, if
Mortished’s reading of the Staff Regulations and Rules brought the subject
to his mind, nothing in them would have given any suggestion that he
would be entitled to the repatriation grant were he to remain at his last duty
station. Third, it would be hard to believe that, in 1958, Mortished, in
Montreal, contemplated retiring some 20 years later in New York or
Geneva in which he was yet to work and that this contemplation was a
material consideration in his agreement to his contract with the United
Nations. Fourth, there is no evidence that the terms and conditions to be
met in order to receive the repatriation grant were the subject of discussion
or correspondence with Mortished at the time he transferred to the United
Nations ; if there were any such evidence, it can be assumed that his
counsel would have produced it.

96. The Administrative Tribunal states that Mortished “is in the posi-

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tion noted by the Tribunal in Judgements Nos. 95 and 102... namely, that
special obligations towards him were assumed by the United Nations”. But
this is just the position in which Mortished was not, for no special obli-
gations towards Mortished were assumed by the United Nations in respect
of the issue at bar, i.e., entitlement to a repatriation allowance regardless of
relocation. The contrast with the cases relied upon by the Tribunal is
instructive. In Judgement No. 95 Sikand v. the Secretary-General of the
United Nations, the Tribunal, while rejecting the Applicant’s claim, held
that its

“jurisprudence has established that the terms and conditions of
employment of a staff member with the United Nations may be
expressed or implied and may be gathered from correspondence and
surrounding facts and circumstances” (para. ITI)

and it held that, in that case, there was correspondence which upheld one of
the Applicant’s claims. But in this case, no correspondence, conversation,
paper or surrounding fact can be cited, apart from the notation on the
personnel action form which, for the reasons set forth above, hardly
provides support for the conclusion that the United Nations assumed any
special obligations towards Mortished on the matter at issue. In Judgement
No. 142, Bhattacharyya v. the Secretary-General of the United Nations, the
Tribunal relied on the quoted passage from the Sikand case and held that
conversations and correspondence with the Applicant at the time he was
engaged about the prospects of renewal of a fixed-term contract created in
the Applicant’s mind “a legitimate expectancy of continued employment
with UNICEF ...” (para. IV). But in this case, relevant conversations,
correspondence, memoranda, etc., running between the United Nations
and Mortished are lacking. Nor are the surrounding circumstances at the
time of the transfer of Mortished in 1958 probative. There was no evidence
before the Tribunal that, as early as 1958, it actually was the practice of the
United Nations to pay repatriation grants to those who remained at their
last duty station. If it be presumed that that was the practice, which may be
a reasonable presumption, there is no evidence that Mortished knew or
cared about any such practice. There was no reduction of any such practice
to a Staff Regulation, Rule, Information Circular or other administrative
paper of general distribution of which Mortished would have had the
benefit whether or not he knew of it. Thus the cases cited by the Ad-
ministrative Tribunal appear to derogate from rather than support
Mortished’s claim.

97. Does the Tribunal hold in paragraph VI of its judgement that
Mortished had a contractual right to a repatriation grant and one which
obtains regardless of his remaining at his last duty station ? A passage from
paragraph XV of the judgement so infers :

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“The Tribunal has been required to consider on a number of occa-
sions whether a modification in the pertinent rules could affect an
acquired right. It has held that respect for acquired rights carries with
it the obligation to respect the rights of the staff member expressly
stipulated in the contract. The Tribunal pointed out, in paragraph VI
above, that entitlement to the repatriation grant has been explicitly
recognized at the time of the Applicant’s appointment, together with
the relationship between the amount of the grant and the length of
service. The Tribunal also pointed out in paragraph VI above that at
the time of the Applicant’s entry on duty, payment of the grant did not
require evidence of relocation to a country other than that of the last
duty station.”

98. For the reasons set out above, it is submitted that any claim that
Mortished has a special, contractual right to payment of a repatriation
grant regardless of his failure to present evidence of his relocation from the
country of his last duty station cannot be sustained. Not only cannot it not
be sustained under the facts of this case ; it appears difficult to sustain
under the jurisprudence of the Administrative Tribunal.

2. Case-Law of the Administrative Tribunal’s Cuts Against Mortished’s
Claim

99. A number of cases are in point. In Judgement No. 19, Kaplan against
the Secretary-General of the United Nations, the Tribunal held that :

“In determining the legal position of staff members a distinction
should be made between contractual elements and statutory ele-
ments :

All matters being contractual which affect the personal status of
each member — e.g., nature of his contract, salary, grade.

All matters being statutory which affect in general the organization
of the international civil service, and the need for its proper function-
ing — e.g., general rules that have no personal reference.

While the contractual elements cannot be changed without the
agreement of the two parties, the statutory elements on the other hand
may always be changed at any time through regulations established by
the General Assembly, and these changes are binding on staff mem-
bers.

With regard to the case under consideration the Tribunal decides
that a statutory element is involved and that in fact the question of the
termination of temporary appointments is one of a general rule subject

to amendment by the General Assembly and against which acquired
rights cannot be invoked.” (Para. 3.)

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522 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

If the terms of termination of temporary appointments are subject to
“statutory” amendment by the General Assembly, terms which though of
general application have the most immediate effect on particular indivi-
duals, is the General Assembly less free to-legislate on evidence of eligi-
bility for a repatriation grant ? Conditions for entitlement to the repatria-
tion grant apply to all staff members equally and therefore would seem to
be “statutory” as.that term is used in the Kaplan case. Moreover, as the
Administrative Tribunal points out in its Judgement in Mortished v. the
Secretary-General of the United Nations,

“The summary provisions contained in the letter of appointment are
supplemented by documents of general application which are much
more detailed. The letter of appointment refers to these in stipulating
that the appointment is offered ‘subject to the provisions of the Staff
Regulations and Staff Rules, together with such amendments as may
from time to time be made to such Staff Regulations and such Staff
Rules’. Thus, by virtue of that provision, documents of general appli-
cation are made an integral part of the contract and the staff member
accepts in advance any amendments which may be made to them.”
(Para. I.)

100. In Judgement No. 202, Quéguiner v. the Secretary-General of the
Inter-Governmental Maritime Consultative Organization, the issue at bar
was dealt with by the United Nations Administrative Tribunal in the
following way :

“The question posed by the present case is thus to determine
whether the Applicant has an acquired right to the education grant
system as established when he entered upon his duties, an acquired
right which cannot be prejudiced unless compensation is paid.

At the time when the Staff Rules were amended, the Applicant was
bound by a contract whose terms, set out in a letter from the Secretary-
General dated 2 April 1971, were accepted by the Applicant on 30
April 1971. This letter, which extended a previous contract, contains a
number of provisions concerning the Applicant personally : post,
duration of contract, administrative status, salary, obligation to sub-
scribe to IMCO accident insurance. It also refers to the conditions of
employment and fundamental rights, and the duties and obligations,
laid down in the Staff Regulations and Staff Rules of the Organiza-
tion, ‘due account being taken of any subsequent amendments to
those texts’.

This latter provision expressly records an essential element in the
Applicant’s contractual situation. He agreed in advance that amend-
ments to the Staff Regulations and Staff Rules would be applicable to
him. Thus, the competent authorities of the Organization may in

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principle amend unilaterally the conditions of employment and fun-
damental rights and the rights and obligations laid down in the Staff
Regulations and Staff Rules.

The limitation of the right of amendment set out in Staff Regula-
tion 12.1 obviously concerns the rights of the staff member expressly
stipulated in the contract. In Judgement No. 19 (Kaplan), the Tribunal
stated that all matters were contractual which affected “the personal
status of each member — e.g., nature of his contract, salary, grade’. In
the present case, no benefit accruing to the Applicant, apart from his
salary, was mentioned in his contract.

Respect for acquired rights also means that the benefits and advan-
tages accruing to a staff member for services rendered before the entry
into force of an amendment cannot be prejudiced. An amendment
cannot have an adverse retroactive effect in relation to a staff member,
but nothing prevents an amendment to the Staff Rules where the
effects of such amendment apply only to benefits and advantages
accruing through service after the adoption of such amendment
(Judgement No. 82, Puvrez).

The Applicant contends that the education grant, although it con-
stitutes additional remuneration, is of a personal nature, and hence
contractual, and that it constitutes a determining consideration in
acceptance of the contract which binds a staff member to the Orga-
nization.

The legality of comparable measures concerning the non-resident’s
allowance (Judgment No. 51, Poulain d’Andecy, ILO Tribunal) and
the allowances payable under the definition of dependency (Judge-
ments No. 82, Puvrez and No. 110, Mankiewicz) has been recognized,
and the Tribunal sees no valid reason for treating the education grant
differently.” (Paras. IV-VL.)

If IMCO is free to alter the conditions of payment of an education allow-
ance, why is not the United Nations free to alter the conditions of pay-
ment of a repatriation grant? Why is it not the more free since in the
Mortished case the rights of the staff member were nor “expressly stipu-
lated in the contract” ? (There is the distinct argument, noted in Quéguiner,
that benefits and advantages accruing to a staff member for services
rendered before the entry into force of the amendment cannot be preju-
diced ; that is an argument which will be addressed in the Mortished
context below.)

101. Further light on the contractual bounds of acquired rights of
international civil servants is shed by the recent decision of the ILO
Administrative Tribunal in In re de los Cobos and Wegner, Judgment
No. 391, where it was held :

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524 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

“6. A right is acquired when he who has it may require that it be
respected notwithstanding any amendments to the rules. A right is
acquired, for example, in one or other of the following circumstances.
First, a right should be considered to be acquired when it is laid down
in a provision of the Staff Regulations or Staff Rules and is of decisive
importance to a candidate for appointment. To impair that right
without the official’s consent is to impair terms of appointment which
he expects to be maintained.

Alternatively, a right will be acquired if it arises under an express
provision of an official’s contract of appointment and both parties
intend that it should be inviolate. Thus not all rights arising under a
contract of appointment are acquired rights, even if they relate to
remuneration : it is of the essence that the contract should make
express or implied provision that the rights will not be impaired. Thus
there may be an acquired right to application of the principle that an
allowance will be paid, but not necessarily to the method of calcula-
tion — in other words, to the actual amount — of that allowance.” (At

pp. 7-8.)

Can it be maintained in the Mortished case that Mortished’s right to a
repatriation allowance regardless of remaining at his last duty station was
laid down in a provision of the Staff Regulations or Rules and was of
“decisive importance” — or any importance — to that candidate for
appointment ? Can it be maintained that that right arises “under an
express provision” of Mortished’s contract which both parties intended to
be “inviolate” ? If there is an acquired right to an allowance, but not
necessarily to the method of its calculation, can it not be said that, at most,
Mortished has an acquired right to a repatriation grant but not to the
conditions of eligibility for its payment ?

102. Similar reasoning was advanced by the ILO Administrative Tri-
bunal in Jn re Elsen and Elsen-Drouot, Judgment No. 368, p. 7, where it
held :

“7. It is quite clear that expatriation, education and leave expense
allowances are matters of importance to someone who joins the staff
of an international organization. The question therefore arises
whether the outright abolition of such allowances would in principle
violate an acquired right. There is, however, no acquired right to the
amount and the conditions of payment of such allowances. Indeed the
staff member should expect amendments to be prompted by changes
in circumstances if, for example, the cost of living rises or falls, or the
organization reforms its structure, or even finds itself in financial
difficulty. Hence the reduction in the expatriation allowance paid to
the complainants does not infringe any right which was of decisive
importance to them in accepting appointment and which may be
regarded as acquired. Moreover, there is no clause in their contract

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which even tacitly guaranteed them any such right. The plea that
acquired rights were infringed therefore fails.”

103. Another case of special relevance is that of Ho v. the Secretary-
General of the United Nations, Judgement 125. In that case, Ho complained
that he had been wrongfully deprived of his entitlement to home leave. He
had previously enjoyed home leave when he held the status of interna-
tionally recruited official. However, he opted to change his status to that of
a permanent resident of the United States. The Secretary-General, exer-
cising his authority under Rule 104.7 (quoted supra in para. 65), decided
that Ho had lost his entitlements to all international benefits, including
home leave, because he had acquired permanent US residence status. The
Administrative Tribunal relied on Rule 104.7, and held that, in accordance
with it, Ho, “by acquiring permanent resident status, lost his home leave
entitlement” from the date on which the United States Immigration and
Naturalization Service made effective his permanent residence (at p. 122).
It held that,

“The decision taken ... on behalf of the Secretary-General ...
constitutes a legally unassailable application of Staff Rule 104.7,
which authorizes a decision that the ‘continuation of such entitle-
ment... would be contrary to the purposes for which the allowance or
benefit was created’. The Tribunal considers that, generally speaking,
to authorize a staff member to benefit from home leave when as a
permanent resident he is considered as having been recruited locally
would be an anomaly contrary to the spirit — that is, the meaning and
purpose — of home leave as established and regulated by the Staff
Regulations and Rules.” (Ibid.)

The Tribunal continued :

“In order to determine whether all the conditions laid down in the
Staff Rules (Rules 104.7 and 105.3) are fulfilled and whether home
leave entitlement exists, it is necessary to consider the staff member’s
legal status at the time when that entitlement should have been exer-
cised.

Hence there cannot be a question of home leave entitlement
acquired previously nor of a possible restoration of that entitlement :
even assuming that a staff member has fulfilled all the other condi-
tions required for the possible existence of that entitlement, the en-
titlement can only exist in law if the staff member, at the time when
he is to begin exercising that entitlement, meets all the requirements
laid down in the Staff Rules, particularly the rule which provides that
he must have been recruited internationally.” (Pp. 122-123.)

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104. The applicability of the Ho case to Mortishea’s is striking. In both
cases, the “entitlements” of home leave and the repatriation grant are
referred to, together, in the same way and on the same plane, in Rule 104.7.
In both cases, the matter of residential status is paramount, and, in both
cases, Messrs. Ho and Mortished opted to change their residential status so
as to take up permanent residence in the country of their duty station, in
Ho’s case, de jure, in Mortished’s case, apparently de facto. Consequently,
by the terms of Rule 104.7, in both cases the Secretary-General was and is
free to consider that Mortished as well as Ho became a permanent resident
of a country other than that of his nationality. (If he could not reasonably
reach that opinion, the point of Mortished’s claim is questionable : he
cannot at once argue that he wishes to buy a house in and live on in
Switzerland indefinitely and wishes neither to return to Ireland nor go to
a third country and yet maintain that he cannot be “deemed” to have
changed, in fact if not in law, the residential status he originally enjoyed as
an internationally recruited official ; see para. 66, supra.) In any event,
even if Mortished, unlike Ho, is not deemed to have changed his perma-
nent residence, in both cases whether the “entitlement exists” must be
decided “at the time when the entitlement should have been exercised” —
“the entitlement can only exist in law” if the staff member, “at the time
when he is to begin exercising that entitlement”, meets all the requirements
laid down by the Staff Rules. Thus Mortished, like Ho, having chosen to
exercise an entitlement when the entitlement on which he relies no longer
exists, as a matter of law must fail. And finally, to deny Ho his home leave
while granting Mortished the repatriation grant “would be an anomaly
contrary to the spirit — that is, the meaning and purpose” of the repa-
triation grant as established and regulated by the Staff Regulations and
Rules.

105. However, it may be argued that, if paying Mortished is contrary to
“the spirit — that is, the meaning and purpose” of Staff Rule 109.5 as it
existed before 1979 and is contrary to it as it exists today, it is not contrary
to the spirit or terms of Staff Rule 109.5 {f) as that transitional rule existed
in 1979, That is quite true. However, a difficulty with that argument is that,
in fact, Mortished exercised his claimed entitlement to a repatriation grant
when that entitlement no longer existed, that is to say, he relied upon the
transitional rule when the transitional rule had transited and was no longer
in force.

3. The Tribunal’s Summary of the Evolution of Practice concerning
the Repatriation Grant

106. The Tribunal turns after its conclusion about “the special obliga-
tions” assumed towards Mortished to a description of the evolution of the
repatriation grant. It notes in paragraph VII that the link between the
repatriation grant and return to the home country was broken in the Staff
Rules as early as 1953. “The literal meaning of the term ‘repatriation’ was
abandoned.” It cites in paragraph VIII the recommendations submitted in

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1952 by the Consultative Committee on Administrative Questions to the
Administrative Committee on Co-ordination, and concludes :

“However, the Tribunal observes that the document produced in
1974 [by the CCAQ] proves that the system proposed by the Consul-
tative Committee on Administrative Questions as early as 1952 was in
effect followed to the benefit of staff members, even though it was not
explicitly embodied in any United Nations regulation. The Parties
considered the question whether a practice followed consistently for
nearly 30 years could generate an acquired right within the meaning of
Staff Regulation 12.1. In view of the particular situation of the Appli-
cant, the Tribunal finds that it is not required to adjudicate that
question in abstracto.”

Thus the Tribunal does not pass in its judgement on whether the practice of
paying repatriation grants to those remaining in their last duty station
“could generate an acquired right”.

107. The Tribunal proceeds to describe the respective spheres of com-
petence of the General Assembly and the Secretary-General in respect of
the repatriation grant (paras. IX and X). It concludes that the Staff
Regulations “expressly acknowledge that the repatriation grant scheme
falls within the scope of the rule-making authority of the Secretary-
General .. .” (para. IX).

108. The Tribunal then turns to the pertinent ICSC reports and to the
discussions of the General Assembly, particularly in adopting resolution
33/119. In describing the adoption of resolution 33/119, the Tribunal
acknowledges that, when Japan proposed that “payment of the repatria-
tion grant to entitled staff members shall be made conditional upon the
presentation by the staff member of evidence of actual relocation, subject
to the terms to be established by the Commission’, the terms the Japanese
representative had in mind related to the provision of evidence. But it
then quotes from the intervention of the Under-Secretary-General (see
para. 59, supra) in which “some flexibility” was suggested since “acquired
rights were involved”, and states : “The Tribunal notes that these argu-
ments [of the Under-Secretary-General] were not challenged and that at no
point in the discussion was the nature of the terms to be established by
ICSC specified.” (Para. XI.)

109. It is submitted that, in concluding the arguments of the Under-
Secretary-General were not challenged, the Tribunal did not construe the
record accurately. As is pointed out above in paragraph 59, right after the
Under-Secretary-General spoke, three representatives replied in terms
which demonstrate that they wished no “flexibility” to be shown. No one
expressly referred to the Under-Secretary-General’s reference to acquired
rights, but the tenor of the remarks of the three representatives gives no
trace of acquiescence in that argument. Moreover, the Tribunal is impre-

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cise in stating that at no point in the discussion was the nature of the terms
to be established by the ICSC specified, for the representative of Japan, as
sponsor, spoke explicitly to that point (he is quoted in para. 59, supra).
These are points of importance, because they bear on whether, in issuing
the transitional Rule 109.5 (f), the ICSC and the Secretary-General acted
within the scope of the authority afforded them by resolution 33/119. The
Tribunal maintains (in para. XIV) that the transitional rule was adopted
by the Secretary-General “in accordance with a procedure laid down by
the General Assembly in its resolution 33/119 ...”. But in truth the Sec-
retary-General acted in derogation of the terms of resolution 33/119 and
the intent of the General Assembly in adopting those terms.

110. The Tribunal then proceeds to recall the action of the ICSC in 1979
in promulgating the transitional rule, noting that it relied on the advice
received from the Office of Legal Affairs of the United Nations. The
Tribunal itself does not dissect the legal opinion which contained that
advice. It notes that the Secretary-General, “exercising the authority
vested in him by Staff Regulation 9.4 and Annex IV to the Staff Regula-
tions”, inserted into Staff Rule 109.5, subparagraphs (d) and (f), which
provided for evidence of relocation and for the transitional provision
waiving that requirement for staff members in service before 1 July 1979
(para. XII). The Tribunal observed that this was “the first time that a
provision of the Staff Rules acknowledged that entitlement to the repa-
triation grant might exist without evidence of relocation being provided”
(para. XIII).

4. The Question of Retroactive Effacement of Mortished’s Entitlement

111. The Tribunal next poses the question of retroactive effacement in
these terms :

“XIV. The question therefore arises whether the entitlement as
described in the provision quoted above, which came into force on
1 July 1979, having been adopted by the Secretary-General in accor-
dance with a procedure laid down by the General Assembly in its
resolution 33/119, can have been effaced retroactively by the Secre-
tary-General’s deletion of subparagraph {f) in pursuance of resolution
34/165.”

This statement about retroactive effacement appears to assume a position
rather than to justify it. Resolution 34/165 is prospective in effect. It
applies to staff members retiring after 1 January 1980. It does not purport
to require staff members who earlier retired, and who received the repa-
triation grant even though they remained within the country of their last
duty station, to return their grants, Thus resolution 34/165 can be rea-
sonably regarded as retroactively effacing an acquired right of those who
retire after | January 1980 only if there was such an acquired right. That is

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the paramount issue at bar. But posing the question in terms of retroactive
effacement adds nothing to the analysis of the problem one way or the
other.

5. The Tribunal’s Construction of the Intent of the General Assembly in
Adopting Resolution 34/165

112. The Tribunal’s Judgement continues by reciting the action in the
General Assembly leading to the adoption of resolution 34/165, and
makes the following surprising statements in that regard :

“The Tribunal notes that at no time did the General Assembly
contemplate supplementing or amending the provisions relating to the
repatriation grant contained in the Staff Regulations. Nor did the
Assembly examine the text of Staff Rules in force since 1 July 1979,
and it never claimed that there was any defect in the provisions
introduced on that date which diminished their validity. The Assem-
bly simply stated a principle of action which the Secretary-General
acted upon in establishing a new version of Staff Rule 109.5 which,
from 1 January 1980, replaced the version previously in force on the
basis of which the Applicant could have obtained the repatriation
grant.”

The Tribunal might have noted that the General Assembly did not sup-
plement or amend the Staff Regulations because it was of the view that
they said what the General Assembly had always intended them to say ; in
the General Assembly’s view, they were not legitimately open to a con-
struction which permitted payment of the repatriation grant to those
remaining at their last duty station. As for the Tribunal’s statement that the
General Assembly did not examine the text of the Staff Rules in force since
1 July 1979 and never claimed that there was any defect in the provisions
introduced on that date which diminished their validity, it is difficult to
reconcile with the record. In a literal sense, it is true that General Assembly
resolution 34/165 does not expressly criticize the ICSC and the Secretary-
General for misconstruction and misapplication of resolution 33/119 ;
that is not the way in which General Assembly administrative resolutions
are customarily cast. But a review of the record of the Fifth Committee in
adopting resolution 34/165 (see paras. 68-90, supra) demonstrates that,
contrary to what the Tribunal says, the Committee energetically and
critically examined the text of the pertinent Staff Rules in force since 1 July
1979, and that the large majority of those who spoke (and presumably of
those who voted for) the United States amendment to what became reso-
lution 34/165 believed that those Rules contained a glaring departure from
resolution 33/119 — the transitional clause. If it is correct to infer, as the
Tribunal appears to do, that the General Assembly did not go further to
hold that the transitional clause was invalid even during the period when it
was in force, that hardly supports construing resolution 34/165 to permit

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payment, whether direct or indirect, to those who thereafter claim the
repatriation grant without providing evidence of relocation.

6. The Tribunal’s Holding that the Repatriation
Grant Was Farned

113. The Tribunal comes to the heart of its Judgement in para-
graphs XV and XVI. Paragraph XV reads :

“The Tribunal has been required to consider on a number of occa-
sions whether a modification in the pertinent rules could affect an
acquired right. It has held that respect for acquired rights carries with
it the obligation to respect the rights of the staff member expressly
stipulated in the contract. The Tribunal pointed out, in paragraph VI
above, that entitlement to the repatriation grant had been explicitly
recognized at the time of the Applicant’s appointment, together with
the relationship between the amount of the grant and the length of
service. The Tribunal also pointed out in paragraph VI above that at
the time of the Applicant’s entry on duty, payment of the grant did not
require evidence of relocation to a country other than that of the last
duty station. Further, the Tribunal held that respect for acquired
rights also means that all the benefits and advantages due to the staff
member for services rendered before the coming into force of a new
rule remain unaffected. The repatriation grant is calculated according
to length of service. The amount of the grant is ‘proportional to the
length of service with the United Nations’, as stated in Annex IV to the
Staff Regulations. This link was explicitiy reaffirmed in Staff Rule
109.5 (f), which refers to ‘the years and months of service qualify-
ing for the grant which [staff members] already had accrued’ as of
1 July 1979. Consequently, the link established by the General Assem-
bly and the Secretary-General between the amount of the grant and
length of service entitles the Applicant to invoke an acquired right,
notwithstanding the terms of Staff Rule 109.5 which came into force
on | January 1980 with the deletion of subparagraph (f) concerning
the transitional system. As in the case of Judgement No. 266 (Capio), it
is incumbent upon the Tribunal to assess the consequences of any
failure to recognize an acquired right.”

114. The foregoing conclusions are open to question on more than one
count. The Tribunal begins with restating its reliance on the rights of the
staff member “expressly stipulated in the contract”. But, as noted above, it
does not point out that Mortished’s contract as such says nothing about a
repatriation allowance, expressly or otherwise, and that the “credit” re-

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ferred to in the personnel action form says nothing of whether it goes to a
repatriation grant that does or does not require relocation as a condition of
its payment.

115. The Tribunal then reaffirms that, at the time of Mortished’s entry
on duty, payment of the grant did not require evidence of relocation to a
country other than that of the last duty station. It does not state what is the
factual basis for the conclusion that, as early as 1958, the United Nations
actually was paying repatriation grants to those who remained at the last
duty station. It is not a supposition lightly to be made because, in 1958, the
number of officials who had retired was still relatively small in view of the
fact that the Organization had been in existence only for some 12 years. But
there is no evidence to the contrary. It then proceeds to maintain that
“respect for acquired rights also means that all the benefits and advantages
due to the staff member for services rendered before the coming into force
of a new rule remain unaffected”. To show that the repatriation grant is
compensation for services rendered, the Tribunal argues that it is “calcu-
lated according to length of service” and concludes : “Consequently, the
link established by the General Assembly and the Secretary-General
between the amount of the grant and length of service entitles the Appli-
cant to invoke an acquired right ...”

116. It is submitted that the foregoing analysis is unpersuasive for the
following reasons. The drafting history of the repatriation grant shows that
the purpose of the grant was not a salary supplement progressively earned,
but rather an end-of-service payment to help meet the costs which a
repatriating staff member would incur after service abroad (see para. 54,
supra). Such end-of-service payments are no more “earned” during service
than a termination indemnity is “earned” during service. Terminal or
separation payments are meant to assist a staff member to cope with
circumstances arising on separation, they are not a reward for current
service. The amount payable on separation, but not the entitlement as
such, is determined by reference to years of service abroad. The Secretary-
General’s answer in the proceedings before the Administrative Tribunal
in the Mortished case correctly summarizes the situation :

“39. Annex IV to the Staff Regulations contains a table which
indicates how repatriation grant benefits are calculated. The criteria
used in determining the amounts of the benefits are ‘years of con-
tinuous service away from home country’, the status of the staff mem-
ber at the time of separation (1.e., the staff member’s category and
whether he or she has spouse or dependants) and the pensionable
remuneration of the staff member at the time of separation. The crucial
time of assessment is always the time of separation.

40. The ‘years of continuous service away from home country’ may

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

be reduced or even totally eliminated if a staff member, after service
away from the home country, is transferred back to a duty station
within his or her own country. In 1964, the CCAQ agreed that en-
titlements in years of continuous service away from the home country
should be reduced by one year in respect of each six months of
completed service in the home country and that in the event of a
reposting abroad credit should be restored at that rate until the full
previous credit is restored and thereafter credit should increase at the
normal rate... Since a staff member is always subject to assignment
to any duty station in the interest of the Organization (Staff Regula-
tion 1.2) it follows that the number of ‘years of continuous service
away from home country’ that has been accumulated may always be
subject to reduction (or at least until six months prior to separation).
As this ‘credit balance’ of years of continuous service is subject to
reduction or elimination during service it is submitted that it is not
correct to maintain ... that a staff member has during his career an
‘acquired right’ to the amount of repatriation grant calculated by
reference to the ‘credit balance’ of years of continuous service away
from the home country available to the staff member at any point of
time prior to separation.

41. A staff member may lose all rights to obtain payment of the
repatriation grant if he is summarily dismissed (Annex IV to the Staff
Regulations) or if he abandons his post (Staff Rule 109.5 (i), or if he
dies and leaves no surviving dependants (Staff Rule 109.5 (m)). The
benefit may be reduced if there is a change in the staff member’s status
(Staff Rule 109.5 (j)) or by demotion (Annex IV to the Staff Regula-
tions).

42. It is submitted that when the legislative components of the
scheme, which can reduce, increase or even eliminate the benefit
during service, are examined in their total context it is apparent that
no right to payment of the repatriation benefit or to any part of it can
be ‘earned’ during a staff member’s service. Entitlement to the grant is
dependent upon all the circumstances existing at the time of separa-
tion and necessarily depends upon fulfilling the eligibility rules in
force at the time of separation.

45. It might be remarked that the Applicant’s contention that
entitlement to the repatriation grant and all its eligibility conditions
are ‘earned’ during service would constitute a far-reaching definition
of ‘acquired rights’ which would substantially derogate from the
authority of the General Assembly under Article 101.1 of the United
Nations Charter to establish conditions of service for United Nations
staff and would practically destroy the significance of the provisions
for amendment made in the regulations themselves as well as in letters
533 APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

of appointment.” (Mortished v. the Secretary-General of the United
Nations, Respondent’s Answer, pp. 17-19.)

117. Inshort, the most reasonable interpretation of the link between the
amount of a repatriation grant and the length of a retiring staff member’s
service is that it is simply a convenient formula for calculating the amount
of the grant. The question of whether a staff member is entitled to the grant
at all need not and should not be determined by the existence of the
link.

7. The Tribunal’s Conclusion that the Transitional Rule of Itself Is
the Source of an Acquired Right

118. It will be observed that the judgement of the Administrative Tn-
bunal, before it reaches its principal, conclusory holding, bases its finding
of an acquired right on two grounds: first, that the United Nations
assumed special, contractual obligations towards Mortished of relevance
to the issue in the case ; and second, that Mortished “earned” the repa-
triation allowance. The first ground has been shown to be baseless. The
second ground has been shown to be unconvincing. The Tribunal also
raised the possibility of a third ground — generation of an acquired right
through practice — but it retreated from that ground without developing it,
presumably conscious of the difficulties of so doing. Let us turn to the
Tribunal’s remaining argument, which is stated in paragraph XVI of its
Judgement in these terms :

“By making payment of the Applicant’s repatriation grant con-
ditional on the production of evidence of relocation, the Respon-
dent failed to recognize the Applicant’s acquired right, which he held
by virtue of the transitional system in force from 1 July to 31 Decem-
ber 1979 and set forth in Staff Rule 109.5 (7).

The stand taken by the Respondent has had the effect of depriving
the Applicant of payment of the repatriation grant. Recognizing that
the Applicant was entitled to receive that grant on the terms defined in
Staff Rule 109.5 (f), despite the fact that that rule was no longer in
force on the date of the Applicant’s separation from the United
Nations, the Tribunal finds that the Applicant sustained injury as the
result of a disregard of Staff Regulation 12.1 and Staff Rule 112.2 (a).
The Applicant is thus entitled to compensation for that injury. The
injury should be assessed at the amount of the repatriation grant of
which payment was refused. Accordingly, the Tribunal rules that the
Respondent shall pay to the Applicant, as compensation, a sum equal
to the amount of the repatriation grant calculated in accordance with
Annex IV to the Staff Regulations.”

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119. It is striking that the Tribunal’s most substantial argument is
presented in a few conclusory sentences. The second sentence of the
Tribunal’s holding is inaccurate, in stating that : “The stand taken by the
Respondent has had the effect of depriving the Applicant of payment of
the repatriation grant.” The fact is that Mortished was entitled to receive
payment of the repatriation grant within two years of his retirement, on
provision of evidence of relocation of his residence outside Switzerland.
Staff Rule 109.5 (e} provided as of 1 July 1979 and thereafter that : “En-
titlement to repatriation grant shall cease if no claim for payment of the
repatriation grant has been submitted within two years after the effective
date of separation.” Thus Mortished could have received payment of the
repatriation grant on presentation of evidence of relocation until any time
before 30 April 1982. When his case was heard by the Administrative
Tribunal, Mortished had approximately still one year within which to
relocate in order to qualify for the grant (see the dissenting opinion of
Mr. Herbert Reis in Mortished v. the Secretary-General, para. 1). But the
essence of the Tribunal’s judgement is in the first sentence of para-
graph XVI: Mortished’s “acquired right” was held “by virtue of the
transitional system in force from 1 July to 31 December 1979 . . .”. That this
is indeed the core of the Tribunal’s reasoning is confirmed by para-
graph XIV, where the Tribunal declares that Mortished’s “entitlement . . .
came into force on 1 July 1979...”.

120. The inarticulate essence of this argument may be said to be this.
Whether or not practice in paying the repatriation grant was consistent
with the Staff Regulations and Rules, and whether or not issuance of the
transitional rule was consonant with resolution 33/119, the facts are that
the practice was followed for some 30 years and the transitional rule was
issued. Acting in pursuance of his delegated and apparent authority, the
Secretary-General’s practice gave rise to an expectation on the part of
Mortished and others similarly situated that they would be paid the
repatriation grant whether or not they relocated from the country of their
last duty station. That expectation was confirmed and entrenched in 1979
by the issuance of the transitional rule. Mortished accordingly is entitled to
rely on the transitional rule, which vested in him an acquired right which
survives the deletion of that rule from the Staff Rules. The authority to
which the staff member must look is the Secretary-General. He cannot be
charged with challenging the regularity of the Secretary-General’s inter-
pretation of the Staff Regulations or the resolutions of the General
Assembly. If the General Assembly is dissatisfied with the Secretary-
General’s interpretations, it may take appropriate measures but those
measures may not trench upon the acquired rights of innocent bystanders
such as Mortished.

121. There is substance in this approach. If the Judgement of the
Administrative Tribunal in Mortished v. the Secretary-General can be sus-

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tained, it is only on this basis. It is certainly reasonable to assume that
Mortished and others similarly situated, having informally heard about the
practice of payment of the repatriation grant to those who did not relocate,
and perhaps having witnessed examples of that practice, expected that they
too would be similarly treated. Yet the Judgement of the Administrative
Tribunal rightly and expressly eschews basing itself on the contention that
the acquired right was generated by practice. Equitable considerations in
favour of Mortished remain, but the practice of itself does not create the
right. What, in the last analysis, the Tribunal maintains is the source of the
acquired right is the fact that, for some seven months, transitional Rule
109.5 (f) was on the books. That rule was indeed on the books ; clearly it
was in force in the brief period before the General Assembly in effect
directed the Secretary-General to delete it. Is it sufficient to endow Mor-
tished with an acquired right which extends beyond the period when that
tule applied ?

122. It is believed that the transitional rule is not sufficient to endow
Mortished with an acquired right which otherwise he would not have, for
two reasons. First, under the Statute of the Administrative Tribunal and its
jurisprudence, an entitlement such as the repatriation grant may be exer-
cised only in accordance with the conditions governing the entitlement as
of the time its exercise is sought. Second, under the Statute of the Admin-
istrative Tribunal and its jurisprudence, the General Assembly retains the
right to issue or require “statutory” amendments to the governing Staff
Regulations or Rules which, even though they impinge upon benefits
accorded to staff members, are not regarded as giving rise to payment of
compensation because of derogation from acquired rights.

123. Mortished could have retired at any time between 30 April 1980
and 30 April 1982 and received the repatriation grant upon presentation of
evidence of relocation. He could have retired and received the grant
without evidence of relocation when transitional Rule 109.5 (f) was in
force ; he was offered that opportunity but declined. From the viewpoint
of his personal interest, it is understandable that he did decline but his
personal interest does not give him an immunity from the operation of the
law. Under the interpretation which the Administrative Tribunal itself has
given to the law “the entitlement can only exist in law if the staff member,
at the time when he is to begin exercising that entitlement, meets all the
requirements laid down in the Staff Rules...” (Ho v. the Secretary-
General of the United Nations, loc. cit. See also Majid v. the United Nations
Joint Staff Pension Board, Jadgement No. 141, para. IV.) The terms of the
Statute of the Administrative Tribunal itself are drafted consistently with
this rule, for Article 2 provides that the Tribunal shall be competent to hear
and pass judgement upon applications alleging non-observance of the
contracts of staff members or their terms of appointment and the words
“contracts” or “terms of appointment” include all pertinent regulations

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and rules “in force at the time of alleged non-observance...”. (Not only
did Mortished fail to exercise his rights under the transitional rule at a time
when the rule was in force. That rule also was not in force when Mortished
transferred to the United Nations in 1958. And it was not in force in 1963
when, after 12 years’ service in the United Nations system, Mortished
accumulated his maximum allowance under the repatriation grant.)

124. Moreover, any right with which Mortished was invested by reason
of the transitional rule was subject to divestment. Regulation 12.1 of the
Staff Regulations provides :

“These Regulations may be supplemented or amended by the Gen-
eral Assembly, without prejudice to the acquired rights of staff mem-
bers.”

It is not a sufficient answer to say that Mortished had an acquired right by
reason of the transitional rule and that therefore provision for amendment
of the Regulations (or consequential Rules) cannot prejudice that acquired
right. For the amendment to the Staff Rules which the Secretary-General
made in implementation of the directive contained in General Assembly
resolution 34/165 to delete Rule 109.5 (f) was an amendment of a statutory
and not a personal character. The amendment generally affected the con-
ditions of eligibility for the repatriation grant. It did not affect a contrac-
tual element of the relations running between Mortished and the Secre-
tary-General. Rather, because conditions of eligibility for the repatriation
grant apply to all staff members equally and therefore are, in the words of
the United Nations Administrative Tribunal “matters being statutory
which affect in general the organization of the international civil service,
and the need for its proper functioning” (the Kap/an case, quoted above at
para. 97), these eligibility conditions “may always be changed at any time
through regulations established by the General Assembly, and these
regulations are binding on staff members” (ibid. ).

8. The Balance of Equitable Considerations

125. It is clear that Mortished had reason to expect that he would be
paid the repatriation grant regardless of provision of evidence of reloca-
tion ; the equitable considerations running in his favour are substantial. At
the same time, it would be implausible to conclude that Mortished did not
gain an acquired right by reason of his contract, did not by reason of
administrative practice, but did gain an acquired right not to provide
evidence of relocation by reason of a transitional rule in force for seven
months but not in force when he sought to exercise the nght allegedly
acquired, when it is also considered that :

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— the administrative practice did not conform to the letter or the spirit
of Rule 109.5, notably Rule 109.5 (a), as that Rule has stood since
1953 ;

— the administrative practice did not conform to the letter or the spirit of
Rule 104.7 (c), which, as far as is known, was in force at all relevant
times ;

— there is no evidence that the General Assembly was informed of, still
less approved, the administrative practice before 1976 and, from the time
at which it clearly was informed of the practice, it grew increasingly critical
of it, passing two resolutions expressly designed to overrule it ;

— the transitional rule was issued in clear conflict with the terms and
intent of the General Assembly resolution governing it, resolution 33/
119;

— the General Assembly overturned the transitional rule with unusual
speed and decisiveness as soon as it could possibly do so.

126. Room remains for a difference of opinion as to which way the
balance of equities in this case inclines. It may well be said that Mortished
should not be penalized for the actions of the Secretary-General’s asso-
ciates. But the equities are not one-sided.

9. Was the Administrative Tribunal Entitled to Apply
Resolution 34/165 ?

127. It might be maintained that the Administrative Tribunal was not
entitled to apply resolution 34/165 on the ground that that resolution did
not amend the Staff Regulations or expressly and in terms direct the
Secretary-General to issue a Staff Rule. The competence of the Tribunal is
defined by Article 2 of its Statute, which provides that it shall hear and pass
judgement upon applications alleging non-observance of staff contracts
or terms of appointment. Article 2 defines “contracts” and “terms of
appointment” to include “all pertinent regulations and rules in force at the
time of the alleged non-observance . . .”. It does not refer to resolutions of
the General Assembly which do not contain amendments to those Staff
Regulations or Rules. Hence, it may be argued, if the Administrative
Tribunal did not give immediate effect to resolution 34/165, its judgement
was warranted for it was not competent to give any effect to that resolu-
tion,

128. Such an argument would be unsound. As this Court in the Fasla
case has “pointed out... under Article 101, paragraph 1, of the Charter
the General Assembly is given power to regulate staff relations . . . (1. C.J.
Reports 1973, p. 173). This holding mirrors that of the Court in Effect of

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Awards of Compensation Made by the United Nations Administrative Tri-
bunal, Advisory Opinion, 1.C.J. Reports 1954, pp. 47, 58, 61, where the Court
also held that, “The General Assembly could at all times limit or control
the powers of the Secretary-General in staff matters by virtue of the
provisions of Article 101” (ibid, p. 60). “In regard to the Secretariat, the
General Assembly is given by the Charter a power to make regulations . . .
There is no lack of power to deal effectively with any problem that may
arise...” (Ibid. p. 61.) There is no prescription that the Assembly’s power
to regulate must be exercised solely in the form of the Staff Regulations
and amendments thereto. No provision of the Charter or resolution of the
General Assembly or article of the Staff Regulations so indicates. As the
Court earlier held, it must be acknowledged that its Members, by entrust-
ing certain functions to the United Nations, “have clothed it with the
competence required to enable those functions to be effectively dis-
charged” (Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion, 1. C.J. Reports 1949, p. 179). “Under inter-
national law, the Organization must be deemed to have those powers
which, though not expressly provided in the Charter are conferred upon it
by necessary implication as being essential to the performance of its
duties.” (Ibid, p. 182.)

129. The General Assembly has not infrequently adopted resolutions
which are meant to regulate and do regulate staff relations but have done
so in a form which does not prescribe or amend the Staff Regulations or
direct changes in the Staff Rules. Among such resolutions are : 976 (X) on
cost-of-living adjustment and dependency allowances for Headquarters
personnel ; 1310 (XIII) on pensionable remuneration of staff; 2480
(XXIII) on composition of the Secretariat ; 2736 (XXV) on composition of
the Secretariat ; 3198 (XX VIID on standards of accommodation for offi-
cial travel of United Nations staff ; 3418 (XXX) on the United Nations
Salary system ; 31/26 on composition of the Secretariat ; 31/193 (B), on
Joint Inspection Unit (Salaries and Conditions of Service for Members of
the Secretariat) ; 33/143 on personnel questions ; and 35/210 on person-
nel questions. Examination of these resolutions demonstrates how sig-
nificantly and in what varied ways the General Assembly has chosen to
exercise its authority to regulate staff relations while at times not choosing
to do so by way of amendment of the Staff Regulations or consequential
Rules. Examples of such resolutions are referred to in the next paragraph,
in which precedents for the Administrative Tribunal taking account of
such resolutions are cited.

130. The Administrative Tribunal of the United Nations has amassed
ample precedent for taking account in its judgements of resolutions of the
General Assembly which regulate the staff without amending the Staff
Regulations or necessarily entailing revision of the Staff Rules. For exam-

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ple, in Judgement No. 67, Harris et al. v. the Secretary-General of the United
Nations, the Tribunal held as follows :

“5. It is therefore necessary to consider whether, as the Applicants
maintain, their claim to tax reimbursement receives any support from
the resolutions of the General Assembly.

These resolutions have not been embodied in the Staff Rules, but
the Respondent does not dispute that the resolutions, together with
the Secretary-General’s circulars by which they were put into effect,
are, with respect to the staff members to whom they apply, part of the
terms of appointment which it is the Tribunal’s duty to take into
account under Article 2 of the Statute.

Until 1955 the Assembly did not adopt any resolution making
permanent provision for the reimbursement of national taxes ; but as
a result of the permanent staff assessment scheme and the unaltered
position of the United States, the reimbursement system was carried
over from year to year without being embodied in the Staff Rules.”
(Judgements of the United Nations Administrative Tribunal, AT/DEC/
1 to 70, p. 395.)

In Powell v. the Secretary-General of the United Nations, Judgement
No. 237, the Administrative Tribunal recalled that :

“Tt was not until the tax reimbursement system had been established
on a permanent basis that the provisions relating to staff assessment
and to tax reimbursement were introduced by General Assembly
resolution 1095 (XJ) into the Staff Regulations as Regulation 3.3”
(P. 14.)

There is no suggestion that the Administrative Tribunal regarded such
provisions as any the less effective or in any measure beyond its compe-
tence in the period before they were introduced into the Staff Regula-
tions.

131. One further case, among a number which could be cited, estab-
lishes that, in the case-law of the Administrative Tribunal, the Tribunal is
entitled to take account of and apply General Assembly resolutions which
affect the status of the staff but do not necessarily amend the Staff
Regulations or require amendment of the Staff Rules :

“The Tribunal has consistently maintained that the Resolutions of
the General Assembly constitute, as far as the staff members to whom
they apply are concerned, conditions of employment to be taken into
account by the Tribunal (Judgements No. 67, Harris et al., para. 5 ;
No. 236, Belchamber, para. XVI; No. 237, Powell, para. XI). The
Tribunal therefore holds that resolution 31/193 B II could be relied
upon as a basis for the non-payment of salary in circumstances such as
those of the present case, even before being incorporated in the Staff
Regulations pursuant to General Assembly decision 33/433.

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VII. The Applicant contends further that the Respondent was
estopped by his own conduct and by the conduct of his representatives
from relying on resolution 31/193 B II. She argues that the Respon-
dent, by failing to take any steps for two years to incorporate reso-
lution 31/193 BI into the Staff Regulations, demonstrated his inten-
tion not to act on it...

IX. The Tribunal, having determined that a resolution of the Gen-
eral Assembly was binding on the Applicant, observes that the fact
that the Respondent did not press for General Assembly action to
incorporate the text into the Staff Regulations did not affect his right
to apply the resolution to the Applicant.” (Smith v. the Secretary-
General of the United Nations, Judgement 249, pp. 17 to 18.)

10. Did the Administrative Tribunal Determine that Resolution 34/165
Could not Be Given Immediate Effect ?

132. It has been maintained that the judgement of the Administrative
Tribunal in Mortished v. the Secretary-General did not determine that
resolution 34/165 could not be given immediate effect in requiring, for
payment of repatriation grants, evidence of relocation to a country other
than the country of the staff member’s last duty station. It thus is suggested
that the question put to the Court for an advisory opinion misconstrues the
Tribunal’s judgement. This conclusion is indeed shared by the Opinion of
the Court (see para. 55).

133. The reasons that may be advanced in support of this conclusion are
several, and not wholly consistent. One is that the Tribunal barely referred
in Its judgement to resolution 34/165 and made no express determination
that it could not be given immediate effect. A second is that the Tribunal
did give immediate effect to resolution 34/165 in so far as it could be given
such effect without impairing acquired rights. A third is that not only did
the Tribunal give immediate effect to resolution 34/165 but that its so
doing is the precondition of its judgement. These reasons will be con-
sidered in turn.

134, It is true that the judgement of the Administrative Tribunal in
Mortished v. the Secretary-General does not extensively refer to resolution
34/165, and it contains no express refusal to apply that resolution. That
hardly shows that the Tribunal did not fail to give that resolution imme-
diate effect. In any event, what is essential is the real effect of the Tribunal’s
judgement, however modest its references to resolution 34/165 and how-
ever lacking the judgement is in an express determination that resolution
34/165 could not be given immediate effect. As the Court put it in the Fasla
case, “... the Court must have regard to the substance of the matter and
not merely to the form” U.C.J. Reports 1973, pp. 189-190). If in substance,
if in reality, the judgement of the Administrative Tribunal in the Mortished

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case did not give immediate effect to resolution 34/165, then the Com-
mittee on Applications did not misconstrue that judgement in requesting
an Advisory Opinion on whether the Tribunal’s determination was war-
ranted.

135. It is perfectly plain that, in fact, the judgement of the Adminis-
trative Tribunal in the Mortished case does not give immediate effect to
resolution 34/165, except, arguably, in a marginal fashion. It is a fact that
the judgement of the Administrative Tribunal actuaily determined that
General Assembly resolution 34/165 could not be given substantial imme-
diate effect. This is so because Mortished and staff members similarly
situated may rely on the transitional rule so as to avoid the requirement of
providing evidence of relocation to a country other than that of their last
duty station. For some years, virtually every retiring or resigning staff
member eligible for a repatriation grant will rely, in the computation of the
amount of the grants claimed to be due, on years and months of service
rendered before 1 July 1979. By reason of the judgement of the Admini-
strative Tribunal, they

“shall retain the entitlement to repatriation grant proportionate to the
years and months of service qualifying for the grant which they had
already accrued at that date without the necessity of production of
evidence of relocation with respect to such qualifying service” (former
Rule 109.5 {f)).

By sustaining the Tribunal’s judgement, as the Court’s Opinion does, it is
difficult to see what, if any, immediate effect resolution 34/165 will have,
except as regards the odd staff member who will shortly retire or resign but
who did not accrue service before 1 July 1979. As time passes, more and
more of those leaving the Organization will not have accrued some or all of
their credit towards the repatriation grant before that date ; accordingly,
resolution 34/165 will have increasing effect. But its immediate effect is
modest. Moreover, resolution 34/165 prescribes that “no” staff member
shall be entitled to “any part” of the repatriation grant unless evidence of
relocation is provided. For years, virtually every retiring or resigning staff
member will seek credit for some part of the repatriation grant which
accrued before 1 July 1979. By reason of the Tribunal’s judgement in the
Mortished case, staff members not providing evidence of relocation will be
entitled to that part of the grant that accrued before 1 July 1979, a result
which cannot be reconciled with giving immediate effect to resolution
34/165.

136. If it be argued that the Tribunal’s Mortished judgement gave im-
mediate effect to resolution 34/165 in so far as it could be given such effect
without impairing acquired rights, and therefore, that the judgement was
warranted (see, in this regard, paras. 75-76 of the Court’s Opinion), it can

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only be so if the finding of acquired rights is warranted. For the reasons
which have been set out in this dissenting opinion, a finding of acquired
rights was not warranted and, as just shown, by reason of its finding of
acquired rights, the practical, immediate effect given by the Tribunal to
resolution 34/165 is so slender as to justify a request for an advisory
opinion in the stated terms. It may be observed that this argument for the
conclusion that the Tribunal did give effect to resolution 34/165 requires
the Court to look at the merits of the Tribunal’s holding on acquired rights,
for, if acquired rights do not obtain in this case, then the claimed basis for
the Tribunal’s treatment of resolution 34/165 vanishes. Resolution 34/165
can have been rightly reconciled by the Tribunal with acquired rights only
if there were such rights. The Court’s Opinion appears to recognize this,
yet it shrinks from appraisal of the validity of the Tribunal’s holding on
acquired rights which this recognition demands by taking shelter in its
claim that the business of the Court is not to pass upon the merits of that
holding (paras. 74, 76).

137. The third argument is the subtlest. In maintains that the very
existence of resolution 34/165 was the precondition of the Tribunal’s
judgement in the Mortished case and, that being so, the Tribunal neces-
sarily gave effect — indeed, immediate effect — to it. On what ground, this
line of reasoning asks, did the Tribunal arrive at the conclusion that
Mortished should be paid compensation for an injury assessed in a sum
equal to the amount of the repatriation grant ? On the ground that it
recognized that the Secretary-General had given effect to resolution 34/
165 in denying Mortished his repatriation allowance ; that this denial
injured Mortished by violating his acquired rights ; and that compensation
must be paid for the injury. So there is no reason to complain that the
Tribunal failed to give immediate effect to resolution 34/165 ; on the
contrary, its judgement is posited on its having done so. The Court’s
Opinion takes such an approach (see paras. 55-56).

138. This reasoning is both logical and unpersuasive. Rather than giving
genuine effect to the terms and intent of resolution 34/165, it stands that
resolution on its head. This argument in actuality says to the General
Assembly : resolution 34/165 admittedly provides and means to provide
“that effective 1 January 1980 no staff member shall be entitled to any part
of the repatriation grant unless evidence of relocation away from the
country of the last duty station is provided”. Thus no staff member shall be
paid any part of the repatriation grant without provision of such evidence.
However, such staff members shall be paid a sum equal to the amount to
which they would have been entitled had not resolution 34/165 been
adopted. That fact does not mean that resolution 34/165 is not given
immediate effect. Why not ? Because the sums paid to the staff members
are not payment of the repatriation grant, but payments in compensation
for the denial of payment of the repatriation grant.

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139. Simply to state this argument is to declare its disability. The
General Assembly had an object in view in adopting resolution 34/165,
namely, to require that any staff member leaving the Organization who
seeks to receive a sum of money calculated on the basis of the repatriation
grant shall receive any part of that sum only if he or she provides evidence
of relocation. That object is in no way given immediate or any effect by
paying the whole of that very sum to a staff member who does not provide
that evidence, not as a repatriation grant but as compensation for its
denial. On the contrary, such a process defeats the terms of resolution
34/165 and the intent of the General Assembly in adopting that resolu-
tion.

140. But it may be said, the General Assembly is not a judicial body and
itis not for it tojudge whether such staff members had an acquired right to
payment of the repatriation grant regardless of relocation ; the General
Assembly did not by resolution 34/165 or otherwise purport to override
acquired rights ; on the contrary, Staff Regulation 12.1 remains in force, in
general and accordingly with reference to the repatriation grant ; thus the
General Assembly — which had been warned by the United Nations
Under-Secretary-General and the legal counsel of the various United
Nations agencies of the existence of an acquired right — must be deemed to
have left it to the Administrative Tribunal to decide whether or not an
acquired right obtains. The Administrative Tribunal has decided that staff
members do have an acquired right to payment of the repatriation grant,
and that should be the end of the matter.

141. Itis true that the General Assembly is not a judicial body ; it is also
true that it did not decide to override acquired rights ; and it is true that it
left the initial judicial decision over whether there is an acquired right to
the repatriation grant to the Administrative Tribunal. But the authorized
organ of the General Assembly has requested this Court to review that
judgement of the Administrative Tribunal because it has concluded that
there is substantial basis for challenging it on the grounds that that
judgement embodies error on a question of law relating to the provisions of
the Charter of the United Nations and constitutes an excess of jurisdiction
or competence. That chalienge cannot be disposed of by a kind of legal
legerdemain, which suggests to the General Assembly that all is defini-
tively and well settled because Mortished will be paid the exact sum of
money in controversy from one account rather than another.

11. The Tribunal’s Judgement Erred on Questions of Law Relating to Pro-
visions of the Charter and Exceeded the Tribimals Jiisdiction

142. When measured against the grounds of objection listed in Arti-
cle 11 of the Statute of the Administrative Tribunal which have been
invoked by the Committee on Applications, the Tribunal’s judgement in
the Mortished case presents essentially these questions :

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— Did the Administrative Tribunal have the jurisdiction or competence
not to give immediate effect to resolution 34/165 ?

— Was the exercise of such authority error on a question of law relating
to provisions of the United Nations Charter ?

— Did the Tribunal’s finding of acquired rights afford it an authority to
avoid giving effect to resolution 34/165 which it otherwise lacks ?

143. It is submitted that it has been shown above (paras. 132-139) that
what the Administrative Tribunal actually did by the force of its judge-
ment in Mortished v. the Secretary-General was to deprive of substantial,
immediate effect a resolution of the General Assembly by which the
Assembly meant to regulate and did regulate an aspect of staff conditions
of service as of 1 January 1980. In so doing, the Administrative Tribunal
exceeded its jurisdiction. That jurisdiction is defined by the Tribunal’s
Statute. The Court has rightly treated the Tribunal’s “acting within the
limits of its statutory competence” (as well as its being a “properly con-
stituted Tribunal”) as preconditions of its rendering a valid award (Effect
of Awards of Compensation Made by the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1954, pp. 50, 51). The defi-
nition of the Tribunal’s jurisdiction in Article 2 of its Statute does not
provide for or imply a power to override resolutions of the General
Assembly. Indeed, the travaux préparatoires indicate the contrary. The
report of the Fifth Committee on the establishment of the Administrative
Tribunal states, in respect of Article 2 of the Statute :

“the tribunal would have to respect the authority of the General
Assembly to make such alterations and adjustments in the Staff
Regulations as circumstances might require. It was understood that
the Tribunal would bear in mind the General Assembly’s intent not to
allow the creation of any such acquired rights as would frustrate
measures which the Assembly considered necessary ... No objection
was voiced in the Committee to those interpretations, subject to the
representative of Belgium expressing the view that the text of the
Statute would be authoritative and that it would be for the Tribunal to
make its own interpretations.” (United Nations, General Assembly
Official Records, Fourth Session, Annexes, Agenda Item 44, p. 166.)

144. To posit an authority of the Administrative Tribunal to set aside or
overrule decisions of the General Assembly is to invest the Tribunal with a
power of judicial review vis-a-vis the Assembly. But the Tribunal does not
enjoy that extraordinary power. Broadly speaking, the General Assembly
itself lacks legislative authority ; its resolutions are recommendatory. But
in the very restricted sphere of its law-making competence, which includes
establishing conditions of service of the staff pursuant to Article 101 (1) of
the Charter, the law laid down by the General Assembly binds not only the
Secretary-General and the staff but the Administrative Tribunal as well.

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Accordingly, when the Administrative Tribunal in substance sets aside
that law, it exceeds its jurisdiction.

145. The Court’s Opinion holds otherwise. The Court’s conclusion that
the Tribunal’s judgement does not override resolution 34/165 and hence
exceed the Tribunal’s jurisdiction appears to be based on the following
holdings : the Tribunal acted within the limits of Article 2 of its Statute ;
and, even if the Tribunal’s judgement on acquired rights with which the
Tribunal gave effect to rather than overrode resolution 34/165 is wrong on
the merits, that judgement on the merits has nothing to do with an excess of
jurisdiction (para. 80). The Court avoids the question of whether the Tri-
bunal’s judgement misconstrues the intent of the General Assembly in
adopting resolution 34/165.

146. Itis submitted that the Court’s reasoning is unpersuasive, for these
reasons. First, there is no justification for avoiding the intent of the
General Assembly in adopting resolution 34/165 (see para. 89, supra). The
language of the resolution is plain ; and the tenor of the debate which
preceded its adoption even plainer. The Under-Secretary-General of the
United Nations understood perfectly the meaning of resolution 34/165
before its adoption — 1.e., complete revocation of the transitional rule —
and explicitly warned the Assembly against adopting it for that very reason
(supra, paras. 79, 80, 81, 84). It is accordingly the harder to credit the
failure of the Court to recognize what the record so emphatically demon-
strates. Second, it is perfectly true that the Tribunal acted, prima facie,
within its jurisdiction or competence in ruling on Mortished’s claim. But
that is not the issue. The issue rather is : did it act within its jurisdiction in
not giving immediate effect to resolution 34/165 ? The Court deals with
that issue by advancing arguments designed to show that actually the
Tribunal did give effect to resolution 34/165. But, since, as this dissenting
opinion has endeavoured to demonstrate, those arguments do not with-
stand analysis, it is believed that this endeavour of the Court fails. Third,
the Court’s conclusion that, even if the Tribunal’s holding on acquired
rights was erroneous, such error would not constitute an excess of juris-
diction, is a conclusion which is, it is submitted, unduly simplistic. The
essence of the defence of the Tribunal’s judgement to the charge of excess
of jurisdiction is that there was no excess but simply a reconciliation of
resolution 34/165 with pre-existing and continuing acquired rights. But if
there were no acquired rights, then there could not have been such a
reconciliation. The Court itself does not pass upon whether there were
acquired rights ; it contents itself with reciting the reasoning of the Tri-
bunal’s judgement and stating that it is not its business to judge it. But
when the merits of the Tribunal’s judgement are examined, it is clear that
its judgement on this critical question is predominantly unpersuasive. If it
is accepted that the Tribunal’s holding on acquired rights is unsound, then
it follows that the Tribunal did not give effect to resolution 34/165, from
which it follows that it exceeded its jurisdiction by failing to do so. Its not
giving effect to resolution 34/165 also constituted an error on a question of

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law relating to provisions of the United Nations Charter, but that fact does
not weaken the conclusion about jurisdictional excess. It may be said to
make that conclusion unnecessary, because, on the ground of error on a
question of law alone, the Tribunal’s judgement in Mortished v. the
Secretary-General of the United Nations should not be sustained.

147. The question of whether the Administrative Tribunal exceeded its
jurisdiction — the question of the relative powers of the General Assembly
and the Administrative Tribunal and the interplay of their exercise in this
case — also is a question of law relating to provisions of the United Nations
Charter. That question engages primarily Article 101 (1), for it is by that
provision that, as the Court has more than once held, “the General
Assembly is given power to regulate staff relations...” (see para. 128,
supra). But the question relates or may relate to other Charter articles as
well : to the authority of the Secretary-General as chief administrative
officer of the Organization under Article 97, to the budgetary authority of
the General Assembly under Article 17 and to the General Assembly’s
power to establish subsidiary organs under Article 22. It may relate to the
distribution of implied powers which arise by intendment from the Char-
ter. But for present purposes, all that need be recalled is that neither under
Article 101 nor any other Charter article, nor under its Statute, is the
Administrative Tribunal authorized to vitiate a resolution adopted by the
General Assembly.

148. The failure of the Administrative Tribunal to give immediate effect
to a binding resolution of the General Assembly constituted error on a
question of law relating to provisions of the United Nations Charter.
Article 101 (1) provides that the staff shall be appointed by the Secretary-
General under regulations established by the General Assembly — regu-
lations which “embody the fundamental conditions of service... of
the United Nations Secretariat” (Staff Regulations, scope and purpose).
“Under Article 101, paragraph 1, of the Charter, the General Assem-
bly is given power to regulate staff relations...” (Z C.J. Reports 1973,
p. 173). Resolution 34/165, while it did not amend the Staff Regula-
tions, constituted a regulation of the conditions of service of the Secretariat,
a regulation which the Administrative Tribunal was bound to apply by
reason of Article 101 (1) (and its own jurisprudence interpreting that
article ; see paras. 130-131, supra). By not giving effect to that resolution,
the Administrative Tribunal acted in derogation of Article 101 (1) and
so erred on a question of law ‘relating to” a provision of the Charter.
That is all that is required by Article 11 of the Tribunal’s Statute. The
Tribunal need not have acted in direct contravention of a Charter provi-
sion ; it need merely err in relation to a Charter provision. That it did by
failing to give effect to an exercise of the General Assembly’s regulatory

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authority under Article 101 (1) by reason of unfounded reliance on
acquired rights.

149. While the essential error of law relating to a Charter provision is
the Tribunal’s failure to give effect to an exercise of the General Assem-
bly’s regulatory authority under Article 101 (1), that error embraces more
particular errors. Regulation 11.2 of the Staff Regulations provides that
the Administrative Tribunal shall, “under conditions prescribed in its
Statute”, pass judgement upon applications from staff members alleging
non-observance of their terms of appointment, including “all pertinent
regulations and rules”. The conditions of the Statute, in Article 2, prescribe
that the Tribunal shall apply “all pertinent regulations and rules in force at
the time of the alleged non-observance . . .”. The Tribunal erred in apply-
ing in favour of Mortished a rule not in force at the time of the alleged
non-observance, namely, the deleted Rule 109.5 (f), which had been de-
leted by reason of the application of resolution 34/165. Its applying that
deleted rule thus conflicted with an exercise of the General Assembly’s
authority under Article 101 (1). The Tribunal also may have erred in failing
to apply a pertinent rule which was in force at the time of the alleged
non-observance, namely, Rule 104.7 (c). Its interpretation of Annex IV to
the Staff Regulations — “In principle, the repatriation grant shall be
payable to staff members whom the Organization is obligated to repa-
triate” — also erred in derogating from the General Assembly’s authority
to regulate staff relations under Article 101 (1) because it failed to give
adequate weight to the reiterated intent of the General Assembly in
adopting and maintaining that provision. Moreover, in so far as the
Administrative Tribunal deflected the incontestable intent of the General
Assembly in adopting resolutions 33/119 and 34/165, and construed those
resolutions in a fashion inconsonant with that intent, it erred on a question
of law relating to a provision of the Charter, namely, the authority of the
General Assembly to regulate the staff under Article 101 (1).

150. The Court’s Opinion makes no room for the conclusion that the
judgement of the Administrative Tribunal erred on a question of law
relating to provisions of the United Nations Charter. It agrees that the
Tribunal must “accept and apply the decisions of the General Assembly
made in accordance with Article 101 of the Charter”. It concludes that the
Tribunal did. Why ? Because it

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“was faced... not only with resolution 34/165 .. . but also with Staff
Regulation 12.1... it had therefore to interpret and apply these two
sets of rules . .. The question is not whether the Tribunal was right or
wrong in the way it performed this task . . . the question — indeed, the
only matter on which the Court can pass, — is whether the Tribunal
erred on a question of law relating to the provisions of the Charter of
the United Nations. This it clearly did not do when it attempted only
to apply to Mr. Mortished’s case the relevant Staff Regulations and
Rules made under the authority of the General Assembly.” (Para.
76.)

151. Itis submitted that this is the central error of the Court’s Opinion.
For the reasons advanced in the preceding paragraphs, precisely what the
Tribunal did in purporting to reconcile resolution 34/165 with non-exis-
tent acquired rights was to commit an error of law in relation to provisions
of the Charter, notably, Article 101 (1). By resolution 34/165 the General
Assembly, acting under Article 101 (1), regulated the terms of eligibility
for the repatriation grant ; by its judgement, the Tribunal avoided giving
immediate effect to the Assembly’s regulation ; on this count above all but
on others as well (supra, paras. 147-149), the Tribunal thereby erred on a
question of law relating to a provision of the Charter, since it frustrated the
express and intended effect of an exercise of the Assembly’s Charter-given
regulatory power. It avails the Court nothing to take refuge in the con-
clusion that it cannot properly resolve whether or not the Tribunal’s
holding on acquired rights was right but that “clearly” whether the Tri-
bunal was right or wrong did not constitute an error of law relating to
Charter provisions. That conclusion is not clear at all. It takes not merely a
narrow construction of the Court’s authority which is questionable (pa-
ras. 19-29, supra). Even on the Court’s own constrained construction of its
jurisdiction, it is unsupportable because the Tribunal’s conclusions so
clearly derogate from the regulatory authority of the General Assem-
bly.

152. It may be added that the question of whether Mortished has an
acquired right in this case relates not only to Article 101 (1), but, arguably,
to Articles 101 (3) and 100 of the Charter as well. It has been maintained,
and reasonably maintained, that the implementation of acquired rights
where justified bears upon the realization of the staff’s efficiency, compe-
tence and integrity for which provision is found in Article 101 (3), and that
it relates as well to the maintenance of the exclusively international
responsibility of the staff under Article 100. It is worth emphasizing that
the Mortished case does not deal with questions of acquired rights in the
abstract or in the many contexts in which they may arise. It rather concerns
the very particular question of the acquired rights of international civil
servants, a question which must be considered in the singular context of

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international organizations and in the light of the jurisprudence concern-
ing acquired rights which has developed in the international administrative
tribunals. Thus, while what those tribunals and this Court may say about
acquired rights in this context may have little or no application to acquired
rights in other contexts, it may certainly “relate to” those Charter articles
that are the foundation of the international legal character of the United

- Nations Secretariat. Even if a narrow view of the Court’s jurisdiction under
Article 11 of the Tribunal’s Statute is taken, there accordingly may be
ground for examining the merits of the Tribunal’s holding of acquired
rights in this case in addition to that so clearly provided by Article 101 (1).
If the Tribunal’s holding is found to be flawed, if it is found to extend the
doctrine of acquired rights to an unreasonable extent, its so doing may be
said not only to prejudice the regulatory powers of the General Assembly
under Article 101 (1), but to bear adversely on Articles 101 (3) and 100 in
so far as undue extension of acquired rights may weaken those rights
within their proper limits, rights which, when so limited, reinforce the
effectiveness of those articles. For the reasons set out in this dissenting
opinion, it is submitted that the holding of the Administrative Tribunal in
the case of Mortished v. the Secretary-General of the United Nations is
seriously flawed and does extend the doctrine of acquired rights unrea-
sonably.

153. Did the Administrative Tribunal’s finding of Mortished’s acquired
rights afford it an authority to avoid giving effect to resolution 34/165
which it otherwise lacks? As noted, it has been maintained that the
Tribunal did not so much fail to give immediate effect to resolution 34/165
as to weigh against that resolution Mortished’s acquired rights. It is
maintained that what the Tribunal did was to reconcile resolution 34/165
with his pre-existing and continuing acquired rights ; since it upheld those
rights, it could give effect to resolution 34/165 only in so far as it was
consistent with them.

154. As submitted above, this approach can be persuasive only in so far
as the holding that Mortished had acquired rights is soundly based. It is
believed that it has been shown above that it is not soundly based. Thus in
so far as the Tribunal’s finding of acquired rights is the justification for not
giving immediate effect to resolution 34/165 in accordance with its terms
and the intent of the General Assembly, that justification fails, i.e., the
finding of acquired rights is the source of the Tribunal’s error in frustrating
the Charter-given authority of the General Assembly to regulate staff
relations pursuant to Article 101 (1). Of course, this conclusion can be
reached only by an analysis of the merits of the Tribunal’s holding that
Mortished had an acquired right to a repatriation grant without provi-
sion of evidence of relocation. For this reason of itself, it is submitted that
the Court could not and should not avoid evaluating the merits of the

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judgement of the Administrative Tribunal in Mortished v. the Secretary-
General.

155. Finally it may be noted that the Tribunal’s judgement on acquired
rights relates not only to Article 101 (1) by reason of its frustrating the
exercise of the Assembly’s authority under that article. If the broader view
of the jurisdiction of the Court under Article 11 of its Statute is taken
(supra, paras. 18-29), the Court then has an additional jurisdictional
ground for consideration of the merits of the Tribunal’s judgement,
namely, that it is entitled to review on its own merits the Tribunal’s
interpretation of the Staff Regulations that derive from Article 101 (1) ~
provided that review is of an “exceptional” case. The Mortished case, the
first case brought to the Court under Article 1] at the initiative of a
member State, clearly is exceptional, because it raises extraordinary issues
of the relations and relationships between the General Assembly on the
one hand, and, on the other, the Secretary-Generai, the International Civil
Service Commission, the Advisory Committee on Co-ordination, the Con-
sultative Committee on Administrative Questions, and, most of all, the
Administrative Tribunal. Should the Court exercise that jurisdiction, it
cannot, for the reasons set forth above, conclude that the Tribunal’s
interpretation of acquired rights in the Mortished case is consistent with the
Staff Regulations as that concept has been developed in the jurisprudence
of the Administrative Tribunals of the United Nations System.

(Signed) Stephen M. SCHWEBEL.

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APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

TABLE OF CONTENTS

SUMMARY (pp. 454-457)

I. THE COMPETENCE OF THE COURT

1.

The provisions of the Statute of the Court and the Court’s
judicial character

2. The provisions of the Statute of the Administrative Tribu-

3.

Il. THE ORIGINS AND DEVELOPMENT OF THE REPATRIATION GRANT
1.

2.
3.
4.

5.
. Amendments to the Staff Regulations do not inform the Gen-

230

nal

À. The terms of those provisions
B. The travaux préparatoires of those provisions

(i) Justification for recourse to preparatory work

(ii) The Court suggests judicial review of Administrative
Tribunal Judgements

Gti) The General Assembly takes up the Court’s sugges-
tion

(iv) The report of the Secretary-General on review proce-
dures

(v) The meetings and report of the Special Committee

(vi) Consideration by the Fifth Committee

C. Conclusions on the scope of the Court’s review authority in
respect of error of law

The Court’s interpretation of the Statutes of the Administra-
tive Tribunal in the Unesco Officials and Fasla cases

A. The Unesco Officials case
B. The Fasla case

The initiation and intent of the repatriation grant 1949-
1950

Departure from the General Assembly’s intent by the CCAQ
in 1951-1952

The General Assembly apparently is not informed that prac-
tice departed from principle

The General Assembly is informed that relocation to a third
country suffices

The CCAQ’s rationale for the practice

eral Assembly of the practice

. The practice is first aired in the General Assembly in 1976
. The CCAQ does not mention the practice

Paragraphs

2-38

3-7
8-30

8-10
11-28

11
12
13
14-17

18-24
25-28

29-30

31-38

31-33
34-38

39-90

40-41
42-46
47

48
49-50

Sl
52
53
552

Il.

12.

13.

14.
15.

16.

APPLICATION FOR REVIEW (DISS. OP. SCHWEBEL)

. The revealing report of the ICSC of 1978
. Fifth Committee response to the ICSC Report

The General Assembly bars payment to non-relocating staff by
resolution 33/119
The frustration of resolution 33/119

A. The Secretary-General’s Circular

B. The ICSC recommends a transitional rule

C. The opinion of the Office of Legal Affairs

D. The texts of Staff Regulation 9.4, Annex IV and Staff Rule
109.5

E. Analysis of the opinion of the Office of Legal Affairs
The failure to apply Staff Rule 104.7

The Secretary-General issues transitional Rule 109.5 (f}
Reaction in the General Assembly against the interpretation of
resolution 33/119 by the ICSC and the Secretary-General: the
adoption of resolution 34/165

The intent of the General Assembly in adopting resolution
34/165

Ij. THE ADMINISTRATIVE TRIBUNAL’S JUDGEMENT IN MORTISHED
v. SECRETARY-GENERAL

231

. Were special, contractual obligations of relevance assumed

towards Mortished ?

. Case law of the Administrative Tribunal’s cuts against Mor-

tished’s claim

. The Tribunal’s summary of the evolution of practice concern-

ing the repatriation grant

. The question of retroactive effacement of Mortished’s entitle-

ment

. The Tribunal’s construction of the intent of the General

Assembly in adopting resolution 34/165

. The Tribunals’ holding that the repatriation grant was

earned

. The Tribunal’s conclusion that the transitional rule of itself is

the source of an acquired right

. The balance of equitable considerations
. Was the Administrative Tribunal entitled to apply resolution

34/165 ?

. Did the Administrative Tribunal determine that resolution

34/165 could not be given immediate effect ?

. The Tribunal’s judgement erred on questions of law relating to

provisions of the Charter and exceeded the Tribunal’s juris-
diction

Paragraphs
54-55
56-57

68-88

89-90

91-155

92-98
99-105
106-110
111
112
113-117

118-124
125-126

127-131
132-141

142-155