411

DISSENTING OPINION OF JUDGE LACHS

I. INTRODUCTION

1. The birth of international organizations not only opened a new
chapter of international law but also created a series of issues concerning
their functioning and the status of their personnel. Thus differences of view
have arisen concerning the rights and obligations of this new type of
official ; some became disputes between the administration and the offi-
cial, and gave rise to specific problems concerning the methods and pro-
cedures for resolving them. The officials could not be left without reme-
dies, hence the creation of special organs to resolve differences arising in
this area. Thus, as is well known, three administrative tribunals are now in
existence. The Administrative Tribunal of the United Nations established
a rich Jurisprudence which has helped to shape the internal law of inter-
national organizations. Yet no tribunal is infallible and occasionally ques-
tions were raised as to the correctness of its decisions. Hence the intro-
duction of the machinery for the review of the judgements of two of these
tribunals. The latest outcome is the present case.

2. There are several reasons which make me reluctant to write this
opinion : among them is the fact that we face here a judgement coming
from a tribunal which has a very good record and with many of whose
findings I could surely agree. Yet, since I unfortunately have difficulty in
accepting an important part of that judgement — a part with which I
consider that the Court should have dealt in greater depth —, I feel that I
must, in all conscience, indicate my views.

IL. JURISDICTION

3. The Request, at first sight rather simple, raises complex and difficult
questions of law. As the Court’s opinion amply shows, the mere circum-
stances of its submission called for some trenchant comments on proce-
dural issues and a special examination of the question of jurisdiction. As
for the review procedure as a whole, its theoretical shortcomings are by
now notorious. But in practical terms the Court’s experience in the present
case has been even more painful than that in the handful of comparable
cases that preceded it : the irregularities committed are most striking, in
particular at the stage of the Committee on Applications. However, at first

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I saw in them no compelling reasons which would be an obstacle to con-
sidering the merits. Yet their closer analysis reflected in the text of the
Advisory Opinion has disclosed grave violations in the screening process.
Thus I was divided in my mind and the scales could easily have tipped the
other way. Nevertheless, the Court’s decision was taken undeniably in the
long shadow cast by these deficiencies, despite which it agreed to surmount
the difficulty, continued with the analysis of the case and reached its
conclusions. This unusual circumstance, while reinforcing my doubts on
the subject of the Court’s jurisdiction, will, in later sections of this opinion,
enable me to proceed with an analysis of the merits.

III. THe Locus STANDI OF STATES MEMBERS OF
THE UNITED NATIONS

4. In the present case the Court could not, of course, as in 1973, put
aside as irrelevant the arguments against the propriety of a State chal-
lenging the judgement in a dispute to which it is not a party. On the
contrary, it had to live up to its statement that such “considerations would
call for close examination by the Court if it should receive a request for an
opinion resulting from an application to the Committee by a member
State” U.C.J. Reports 1973, p. 178 at para. 31). In doing so, however, it has
been mindful that the arguments were originally raised in 1955 and that the
General Assembly amended the Statute of the Tribunal despite them and
in full awareness of them. Designedly, therefore, the General Assembly
adopted an amendment permitting an intervention by a member State in a
dispute between the Secretary-General and a staff member.

5. There are two aspects to the above objections to “State intervention”.
One concerns the rights of the staff member party to the original dispute.
The other concerns the prerogatives of the other party thereto, the Secre-
tary-General, as chief administrative officer of the Organization. From
both angles, it has been objected that the procedure allows the intrusion of
a member State into the relationship between the Secretary-General and a
member of his staff.

6. What this boils down to is the issue of the relationship between
member States and staff members (or former staff members) of the United
Nations. Here a distinction has to be made between the day-to-day,
functional relationship and the basic, organic relationship. The Secretary-
General is the pivot of this distinction. For everyday, practical purposes,
the staff members are responsible to him alone. The very nature of their
duties, safeguarded by Article 100 of the Charter, is such as to require them
to be shielded from the pressure of the individual member State — but also
to require all member States to be shielded.

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7. Conversely, the basic, organic relationship between the staff member
and the member State has to be looked at in the light of fundamentals. One
“fundamental” which is constantly obscured in the context of disputes is
that it is not the Secretary-General that is a principal organ of the Orga-
nization, but the Secretariat — to which both he and his staff belong. The
Secretary-General’s staff are the servants of the United Nations. Their
relationship is with the Organization, whose instructions he is expected to
interpret and transmit. As chief administrative officer he represents the
Organization in his dealings with them, but, as Article 101 of the Charter
implies, it is another representative of the Organization, namely the Gen-
eral Assembly, which makes and has oversight over the regulations gov-
erning their relationship not only with him but with the Organization
behind him. Thus the United Nations, made up of member States of which
the General Assembly is the voice, is the ultimate employer of the staff. As
the Court itself recognized in 1954, and has now confirmed (in para. 68),
the Secretary-General is at all times subject to the control of the General
Assembly in staff matters (cf. Z CJ. Reports 1954, p. 60).

8. The conclusions to be drawn are that the relationship lies basically
between the staff member and the Organization and that, at that level, a
member State, as such, cannot be regarded as an outsider. The present case,
moreover, concerned not only an important problem of the validity of a
rule but also the implementation of a General Assembly decision which did
not affect one staff member only, and the issue involved touched upon — as
I hope to show — the fundamental interpretation of Article 101 of the
Charter.

9. Insum, the General Assembly’s 1955 decision to admit the possibility
of an application for review being submitted by a member State consti-
tuted recognition that a member State, as a representative of the Organi-
zation, can have a legitimate interest in questioning the Tribunal’s decision
on a matter concerning the staff member’s rights and obligations vis-à-vis
his ultimate employer, the Organization. On such occasions it is, I believe,
misleading to visualize such an application as amounting to an interven-
tion in a relationship between two other persons.

10. The fact is that, as was already seen in 1973, “Article 11 was not
introduced into the Statute of the United Nations Administrative Tribunal
exclusively, or even primarily, to provide judicial protection for officials”
despite what had been said in 1956 about Article XII of the Statute of the
ILO Administrative Tribunal (see I. C.J. Reports 1973, p. 183 at para. 40),
and the Court must therefore give due weight to the other party deserving
judicial protection — namely the Organization.

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IV. GROUNDS OF THE APPLICATION FOR REVIEW

11. Judgement No. 273 of the United Nations Administrative Tribunal,
while not ordering the payment to Mr. Mortished of the repatriation grant
he claimed, awarded him compensation in exactly the same amount, so
that there is a material (if not jurisprudential) identity between the effect of
its action and the satisfaction of the claim. The awards of the Tribunal (as
concluded by the Court in 1954) are binding upon the United Nations. A
member of the General Assembly of that Organization has made use of the
review procedure in order to challenge the legal basis of this particular
award.

12. I agree with the strictures passed by the Court on the diffuse and
awkward wording of the question put to it by the Committee on Appli-
cations after consideration of the application for review, and I also agree
that it is necessary to go behind this question in order to determine what
grounds of objection are alleged, within the meaning of Article 11 of the
Statute of the Tribunal. Of the two grounds raised in the Committee on
Applications, one, that concerning excess of jurisdiction, seems most
closely to relate to the terms of the actual question put to the Court, in that
the Administrative Tribunal, though competent to examine alleged non-
observance of terms of appointment, certainly has no power effectively to
countermand a decision of the General Assembly. This point is apparently
met by the fact that the Tribunal “merely” awarded compensation, thus
not denying the immediate effectiveness of General Assembly resolution
34/165. But what I find a particular source of concern is that the basis of
this award was a finding that Mr. Mortished enjoyed an “acquired right”
by virtue of the already abolished Staff Rule 109.5 (f}, a text which, as I
shall show, was in conflict with the will of the legislator. I therefore agree
with the Court that the focus of enquiry should be the other ground of
objection, namely error on a question of law relating to the provisions of
the Charter.

V. THE “CONTENTIOUS” ASPECTS OF THE COURT’S PRESENT TASK

13. Before passing on to consider whether Judgement No. 273 did in
fact commit an error on a question of law relating to the provisions of the
Charter, I wish to comment on four other ways in which the Court’s
Opinion endeavours to narrow the scope of the enquiry to be undertaken.
The first is by emphasizing the difficulties inherent in making use of the
Court’s advisory jurisdiction for the purpose of resolving contentious
issues. This point is connected with the apprehension lest the Court act as a
court of appeal, lest it “retry the case”. I am in entire agreement with the
caution here advocated, to the extent that it does not prevent the Court
from fulfilling its role in concreto. But let it be remembered that even the
Court’s own Rules contemplate the possibility of its advisory opinion
being sought “upon a legal question actually pending between two or more

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States” (Art. 102). Of course, safeguards can then be given by observance
of the rules for contentious cases, and it is notably more difficult to provide
similar safeguards when one of the parties is an individual without stand-
ing before the Court. However, the examination of contentious issues is an
inherent task of the Court in the review procedure, and if ever it considers
that the performance of this task involves inequitable treatment of the
parties its proper course may well be to decline to give an opinion. It does
not improve the situation by agreeing to give an opinion while declining to
examine the issues as thoroughly as is needed to reach a well-founded
conclusion. Here, in my view, the Court draws back from the thorough
accomplishment of its task in deference to scruples which relate to the
system, not the case.

14. Another, connected way in which the Court has reduced the scope of
its enquiry is to suggest that it may be able to detect an error in the
Tribunal’s interpretation of the Staff Regulations and Rules without itself
deciding (or, at any rate, expressing) what, in its view, is the correct
interpretation — without, indeed, even getting “involved in the question of
the proper interpretation of the Staff Regulations and Staff Rules, as such,
further than is strictly necessary [etc.]” (para. 64). However, I regret to note
that here (as also in para. 66) the Court acts upon this formula only in
regard to an objective which narrows down the scope of enquiry to con-
sideration whether the Tribunal’s interpretation is “in contradiction with
the requirements of the provisions of the Charter” (my emphasis). This is an
inadequate goal, which would clearly bar the Court from performing its
real function, under Article 11 of the Tribunal’s Statute, of examining
any question of law in relation to those provisions, in order to ascertain
whether the Tribunal erred thereon. But is not any court of law, whatever
its functions, obliged to test its criticism of a judicial decision taken by
another against its own conclusion as to what would have been correct ? Is
it usually possible for it to be sure of having detected an error without being
equally sure of what the other tribunal ought to have said? To resort
to an illustration taken from the jurisprudence of the Belgian Conseil
d'Etat :

[Translation by the Registry]

“The Council of State, administration section, has not to substitute
its appreciation for that of the Minister as regards the advisability of
issuing, an emergency order ; however, to discharge the task of veri-
fying legality which is inherent in that very competence, the Council
of State, administration section, is under an obligation to examine
whether the Minister, in invoking an emergency, attributed its proper
scope to the provision in Article 3, subparagraph (1), of the co-ordi-
nated laws, or in other words whether, in applying the concept of
emergency to the circumstances of the case, the administrative author-
ity did not go so far as to disregard, by distorting this concept, the legal

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qualification attached to it by the legislator.” (Arrét n° 16488, 20 juin
1974, A.S.B.L. Institut technique libre Georges Cousot et consort c. Etat
belge, Recueil des arréts du Conseil d’Etat, 1974, pp. 645-647.)

15. Interestingly, the Court’s Opinion itself refers to an “assumption
that the advisory opinion is to deal with a different question from that
submitted to the Tribunal” (para. 61). This reveals that there is no neces-
sary reason why the declaration of the Court’s interpretation of the parti-
cular point or points underlying its answer to the question before it should
be equivalent to the substitution of “its own opinion on the merits of the case
for that of the Tribunal” (para. 47 of the Fasla Opinion), since the merits
are likely to cover many other points on which the Court may have nothing
to say. Indeed it is quite conceivable that the Court’s interpretation of a
particular question of law may differ from that of the Tribunal while
leaving unaffected the latter’s findings on the merits. It is in that light also
that the action of the Tribunal subsequent to the Court’s Opinion, under
Article 11, paragraph 3, of its Statute, may be conceived.

16. In sum, while I agree that it is “very much the business of this Court
to judge whether there is a contradiction between a particular interpreta-
tion or application of Staff Regulations and Rules by the Tribunal and any
of the provisions of the Charter” (Opinion, para. 66), I fail to see how this
business can be carried on without reaching a conclusion as to what an
alternative interpretation or application might have been. Any other
approach would be self-defeating, in that it would imply that the Court
must give the Tribunal the benefit of the doubt at the very point where the
Tribunal’s Statute seeks to empower it to do the reverse. Hence “the
inherent limitations of the advisory procedure” (ibid, para. 63) would be
so conceived as to frustrate the purpose of that Statute and make the
provision in question a dead letter. Here again, to my mind, the Court has
the choice either of refusing the procedure or, if it accepts it, of trying to
make it work.

17. A third way in which the present Advisory Opinion has circum-
scribed the Court’s powers is by declaring that

“It is not the business of this Court to decide whether the Tribunal’s
Judgement involves an error in its interpretation of the relevant
instruments, unless it involves an error on a question of law relating to
the provisions of the United Nations Charter.” (Para. 74.)

I hope sufficiently to indicate below why I consider this to be a false
antithesis. Indeed, I would say that errors in the interpretation of instru-
ments having their fons et origo in the Charter would be typically the kind
of errors contemplated in Article 11 of the Tribunal’s Statute.

18. Fourthly, the Court recalls that neither it nor the Tribunal possesses

“any ‘powers of judicial review or appeal in respect of the decisions’ taken
by the General Assembly” (para. 76). With this I entirely agree, with the

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proviso that, as I have pointed out elsewhere, there is a possibility of the
Court performing interpretative functions serving a similar purpose, act-
ing upon the request of the Assembly or other organ desiring legal
guidance as to its own activities U.C.J. Reports 1950, pp. 131 ff.; 1972,
p. 23). But I also conclude that, in consequence of this limitation, it be-
hoves the Court, and a fortiori the Tribunal even more to heed the wishes
of the Assembly as expressed in its decisions.

VI. MEANING OF “ERROR OF LAW ON A QUESTION RELATING TO THE
PROVISIONS OF THE CHARTER OF THE UNITED NATIONS”

19. As the preparatory work makes clear, it is highly unlikely that any
provisions lying outside Chapter XV or Article 55 (c) of the Charter would
be involved in a case before the Administrative Tribunal, and where
Chapter XV is concerned staff members and the Secretary-General are no
less interested than member States in this general observance. But within
Chapter XV, Article 101, as constantly interpreted, provides a specific role
for the General Assembly in establishing the regulations under which staff
shall serve. Thus, in considering an application from a Member of the
Assembly, one must look particularly, though not exclusively, to Article 101
to establish the scope of the ground of objection to the effect that the
Tribunal has erred on a question of law relating to the provisions of the
Charter.

20. To my mind, the Court’s Opinion takes too abstract a view of this
necessary operation. But it is certainly important to begin with the actual
text of Article 11, paragraph 1, of the Tribunal’s Statute: “error on a
question of law relating to the provisions of the Charter”. It has in par-
ticular to be stressed that it is the “question of law”, not the “error” itself,
that has to “relate to” the provisions of the Charter. The requirement of
“connecting up” with the Charter, which is necessary for the Court to be
able to examine the possibility of legal error, is thus a broad one, relating to
the subject-matter of the Tribunal’s deliberations, not necessarily to its
actual analysis of Charter provisions.

21. Inspection of the Charter rapidly establishes that paragraph 1 of
Article 101 is the text therein raising “questions of law” involved in the
Mortished case before the Administrative Tribunal. On the one hand, that
paragraph has been consistently interpreted as the basis of the General
Assembly’s power to make and maintain staff regulations (even if, unlike
para. 3, it is ostensibly concerned with terms of appointment rather than
conditions of service). On the other hand, the Tribunal, in the exercise of its
functions, continually applies and interprets those regulations, and the
rules flowing from them. Any “question of law” in the area of those
regulations and rules thus “relates to” this provision of the Charter, and if
the Tribunal in any way “errs” on such a question, it provides a ground on

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which its judgement may be challenged via the review procedure, and
affords the Court the possibility of examining its reasoning on that ques-
tion.

22. Pace the Court’s Opinion (para. 65), what it is about the Tribunal
which derives its ultimate validity from the Charter is not so much the law
it applies as its application of the law, because that is its very functioning,
which is entirely dependent on the Statute with which the Assembly
endowed it. The actual law it applies may derive from a variety of sources,
some general, some more particular. Among the more particular are the
Staff Regulations and the Rules enacted for their implementation. A
question of law concerning these relates to a provision of the Charter. On
the other hand, a general question of law — say, the question of acquired
rights — will not of itself relate to the provisions of the Charter. If, however,
for the sake of that question, the Tribunal has occasion to apply or observe
Staff Regulations and Rules deriving from General Assembly resolutions
— hence from Article 101 of the Charter — and does so wrongly, its error
will afford a ground of review. There is therefore no justification for
suggesting that, just because of the vast scope of the Charter, all legal errors
without distinction would be subject to the review process if the relevant
words of Article 11 of the Tribunal’s Statute were interpreted as they stand.
Besides, in the nature of things, the Court is involved, through this review
procedure, in matters which are seldom likely to take on the international
dimensions to which it is accustomed. Hence, while the Court is right to
suggest that the reference to the Chapter forms a qualification which
diminishes the inappropriate aspects of that involvement, it should be
realized that any stressing of an alleged requirement of importance belongs
rather to criticism of the system than to analysis of the text. Finally, there is
a long distance between the interpretation indicated here and that which
would include any “error of law”. By forcing a choice between two anti-
podes, the Court loses sight of the real value of the “compromise solution”
sought in 1955, to which it approvingly refers.

23. Finally, as I hope to make plain, the question of law which is in my
view central to the case is decidedly of constitutional dimensions, since it
concerns none other than the authority and relationships of the General
Assembly, the Secretary-General and the International Civil Service Com-
mission. The Court avoids the issues involved by placing them beyond the
provisions of the Charter. But it is in the Charter that the very source is to
be found of the relationship between the General Assembly, the Secretary-
General and such a subsidiary organ as the International Civil Service
Commission. Hence, whether “question of law concerning the provisions
of the Charter” be given a restrictive or an extensive interpretation, I am
satisfied that the question with which I am concerned passes the test and
qualifies for the Court’s examination.

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24. The Court itself, on one occasion, said of the whole of Article 101 of
the Charter :

“The General Assembly could limit or control the powers of the
Secretary-General in staff matters, by virtue of the provisions of
Article 101” (Z.CJ. Reports 1954, p. 60 ; quoted in para. 68 of the
Court’s present Opinion).

Thus, theoretically, a conflict might arise between a decision of the Sec-
retary-General (e.g., a Rule or amendment issued by him) and a decision
by the General Assembly controlling his powers. Any question involving
that control thus concerns Article 101 of the Charter, on the Court’s own
showing. However, it is arguable that the error may also — or alternatively
— concern other provisions of the Charter, applied to the personnel of the
Organization, as they should be applied in international relations. If the
United Nations is to promote, “With a view to the creation of conditions of
stability and well-being . . . based on respect for the principle of equal
rights ... of peoples”, “conditions of economic and social progress and
development” (Charter, Art. 55), it is obviously bound to proclaim and
practise the same principles within its internal legal system : not only to
avoid but to bar all types of discrimination among those serving this
Organization. If a much wider approach is taken, it will be seen that an
error in giving a more privileged position to some and placing others on a
disadvantageous level is involved in the present case. This question had in
fact been raised by the non-expatriate personnel.

VII. Merits OF THE REVIEW

25. To evaluate properly the whole case, the best way is to begin with the
decision of the Administrative Tribunal. This, in a nutshell, was as fol-
lows : a resolution of the General Assembly (34/165) which was law-
making, inasmuch as it was the basis of an amendment of a relevant Staff
Rule (109.5), was declared ineffective in regard to an identified person
(Mr. Mortished). He was granted as compensation a “sum equal to the
repatriation grant” in reliance on another, earlier resolution, one already
replaced, and a clause in the Staff Rule (109.5 (f)) which was no longer in
force. The ground of this award was an alleged “injury” sustained by the
person concerned and due to the operation of the new resolution and Rule.
What was the injurious act impeached ? Refusal of payment following
non-compliance with a request for evidence of relocation as a condition for
paying a repatriation grant due to that person on separation and reloca-
tion.

26. The Court did not consider whether the Tribunal, precisely in

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resorting to the substitutions just mentioned, did not err on a question of
law relating to the provisions of the Charter. It could however have done so
without “retrying the case” : it need only have reviewed “the actual sub-
stance of the decision” to the extent envisaged in paragraph 48 of its 1973
Advisory Opinion (quoted in para. 57 of the Court’s present Opinion).

Vill. THE NATURE OF THE REPATRIATION GRANT

27. Let us consider the basic facts. We are confronted with an institu-
tion called “repatriation grant” which was established for internationally
recruited staff members of the United Nations. Its objective was officially
stated 33 years ago : it was intended to make up for the

“loss... of professional and business contacts with the home coun-
try...;... the necessity of giving up residence and liquidating obli-
gations in a foreign country ; and... expenses which a staff member
will normally have to meet in re-establishing himself and his home on
return to his own country” (General Assembly Official Records, Fourth
Session, Annex to Summary Records of Fifth Committee, Vol. IE, A/
C.5/331 and Corr.1, para. 108).

The logical outcome, in the words of the Advisory Committee on Admin-
istrative and Budgetary Questions, was that a “lump sum [should] be paid
to staff members on being repatriated to their home countries to cover
costs of re-establishing themselves” (A/313, para. 68).

28. Thus the object and purpose of the grant was clearly defined. In the
further development of this institution it was decided that : “The Secre-
tary-General shall establish a scheme for the payment of repatriation grant
in accordance with the maximum rates and conditions...’ (General
Assembly resolution 470 (V), 15 December 1950). It was also laid down,
under the heading “Repatriation Grant”, that :

“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.” ({bid., Ann. IL.)

This was to become the basis of Annex IV to the Staff Regulations. The
words “in principle” were evidently employed to provide some necessary
flexibility in exceptional cases, and not to bestow an unconditional right to
payment on all staff members who were objects of the mentioned obliga-
tion. This is at once clear from the promptly issued circular of the Secre-
tary-General, dated 20 December 1950, which for the staff's information,
stated that : “The principle of a repatriation grant has been established, the
grant to be payable to such members returned at United Nations expense to

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their home countries.” (ST/ AFS/SER.A/72, para. 11 ; my emphasis.) Here
the word “principle” did not refer to payment (as the Court seems to
assume) but to the institution established.

29. After the grant had come into being on 1 January 1951, the Salary
Review Committee found that it was “unable to recommend the extension
of the grant to non-expatriated staff” (Salary Review Committee report,
1956, A/3209 : see paras. 224 and 225). Thus the special status of expa-
triate personnel was emphasized ; the grant was intended only for those
who, after terminating their service, go back to their country. This theme
was to be repeated on many subsequent occasions (cf. Secretary-General’s
Bulletin, ST/AFS/SGB/81, Rev.2 and Rev.3, of 1 January and 6 July
1951; ST/AFS/SGB/94 of 1 December 1952; Rev.4 of 15 August
1955). It is really surprising, in the light of such convincing evidence
articulating the original object and purpose of the grant, that the Court can
have found “that the title of the grant has always been a misnomer”
(para. 66 ; my emphasis). Affirmed at the beginning, the original descrip-
tion was defended 30 years later in the General Assembly. Equally strange
is the reliance placed on the expression “obligated to repatriate” for the
purpose of denying the reality of the repatriation requirement (ibid. ). This
expression is only one side of the coin, the other being the staff member’s
obligation to leave his last duty station in order to qualify for the
grant.

30. Two further interesting features are worth mentioning in the con-
text. One is the sliding scale on which the amount of the grant is calculated
and the 12-year maximum period of service taken into account. These
indicate that the original guiding idea contemplated chiefly expatriates
who would need help in picking up the threads of their career after
separation, a task which becomes progressively more difficult as the years
roll by, but not so much help as to enable them to live for more than a few
months without being stimulated to look for other work. The grant was
therefore not intended to be a gradually earned lump-sum gratuity to be
paid on separation to those who had reached retirement and would draw a
pension.

IX. THE QUESTION OF EVIDENCE : Irs HISTORY AND LEGAL
COMPLICATIONS

31. The object and purpose of the institution having been defined, no
difficulty about evidence need have arisen. It is only the events that
followed which seem to have created some confusion on the subject. Thus
in 1952 the CCAQ Secretariat suggested that :

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“it is believed that the grant should be paid after two years’ service
abroad, regardless of the conditions of separation (including resigna-
tion but excluding summary dismissal) and regardless also of whether
the staff member is actually repatriated” (CO-ORDINATION/
R.124, p. 6).

It was also pointed out that a staff member might have two or more
residences and that it would then be difficult to establish the real address.
But it was clear that these reasons were only an expedient means of
endorsing a lax practice and were not intended to establish the correct
interpretation of the underlaying principle. Small wonder this proposal
never became part of the law. The Staff Regulations and Staff Rules
remained unchanged.

32. On the other hand, the link with the home country was stressed
again when in 1964 the Secretary-General incorporated into the Staff
Rules a special provision concerning reduction of “repatriation grant
entitlement” by one year for each six months’ service in the home country,
with the restoration of the credit (one year for six months) in case of later
posting abroad.

33. Moreover, a special Staff Rule 104.7 (c) laid down:

“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 allowance,
home leave, education grant, repatriation grant and payment of travel
expenses upon separation...” (my emphasis).

These elements further stressed the link between the repatriation grant and
the fact of repatriation as a condition for its payment. A person becoming a
permanent resident in another country might lose the title to the grant. (To
my great regret, the Advisory Opinion omits any reference to that
tule.)

34. The CCAQ recalled in 1974 its 1952 proposal that the grant be
payable whether repatriation takes place in fact or not, yet it stated again
that :

“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.” (CCAQ/SEC/325/
(PER), para. 14.)

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Having stated this, it turned to the practical difficulties and the possibility
of the ex-official evading the obligation by travelling to his home country
or to another country and travelling back to the place of his last duty
station in the United Nations at his own expense, without the adminis-
tration knowing it.

35. With the passage of time, the requirement of evidence and formali-
ties concerning the “repatriation grant” underwent a further liberalization
of interpretation. The “obligation to repatriate” was given a wider mean-
ing and became the “obligation to return . . . to a place outside the country
of [the] duty station” (Secretary-General’s Bulletin, ST/AFS/SGB/94,
1 December 1952; Rule 109.5 (aj). It was also conceded that “loss of
entitlement to payment of return travel expenses . . . shall not affect a staff
member’s eligibility for payment of the repatriation grant” (now Rule
109.5 (/)). Moreover, in the practice of both the United Nations and other
international organizations the requirement of evidence was not complied
with. A practice developed of the grant being paid whether the official in
question left his last duty station or not. However, and this is most
important from the legal point of view, that practice, wide as it may have
been, was never incorporated into any rules and it could therefore never
have had any rule-making effects. The requirement of evidence of reloca-
tion remained binding. The proof of this is abundant :

(a) The International Civil Service Commission, called upon to review the
question of the grant, found in 1978 that : “The conditions of entitle-
ment to the grant have remained essentially unchanged since they
were first established with effect from 1 January 1951.” (A/33/30,
para. 179.)

(b) The Chairman of the ICSC (Sefior Quijano) made a very relevant
statement on the subject to the Fifth Committee in 1978: “In its
study,” he said, “the Commission had found in a few cases grants had
been paid to expatriate staff members who had not moved from the
country of their last duty station.” He added that this was considered
“to be an unjustifiable and anomalous payment’ (my emphasis). (A/
C.5/33/SR.42, para. 69.)

(c) The 1978 report of the ICSC concludes by a most telling formulation :
while stating that it had “no desire to see an international information
network set up to keep track of the movements of former staff mem-
bers” (para. 185), the ICSC believed 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” (A/33/30, para. 185, my emphasis).

Thus, notwithstanding the lax practice and proposals made by some
organs of the United Nations and of other organizations there is no proof

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that the necessary evidence of relocation was dispensed with in law
(cf. above) and that officials were entitled to receive the grant without
being obliged to produce such evidence.

36. On the contrary, 29 years after the rationale of the grant was
defined, it was emphatically restated. The grant was to serve its real
purpose ; no distortion of the institution and its purpose was sanctioned ;
it was not to become an instrument of abuse. Any attempt to establish the
right to a grant without being repatriated (or having relocated) would
amount to an interpretation in fraudem legis.

37. That the law had remained unchanged since 1951 was confirmed
even by the Administrative Tribunal in the very judgement which is the
subject of the Court’s deliberations, for it notes that the scheme announced
by the Secretary-General on 22 August 1979 “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”
(Judgement, para. XIII). The new provision in question (Rule 109.5 (f))
was the outcome of action taken by the International Civil Service Com-
mission following a decision by the General Assembly. That action and its
fruit have to be analysed in order to appreciate the basis of the Tribunal’s
decision.

X. RESOLUTION 33/119 AND STAFF RULE 109.5 (f} AND THEIR SOURCE

38. I turn now to the latest chapter in the history of the elaboration of
the relevant rules, and in doing so cannot but note that the Court, after
giving such a detailed analysis of the preceding chapters, pays but scant
attention to the making of the two General Assembly resolutions which are
decisive elements of the case. In particular it remains reticent on the
evidence of the real wishes of the General Assembly, as so clearly expressed
in the records. By resolution 33/119 the General Assembly decided that
“payment of the repatriation grant to entitled staff members” should “be
made conditional upon the presentation .. . of evidence of actual reloca-
tion, subject to the terms to be established by the [International Civil Service]
Commission” (my emphasis). The emphasized words expressed the Assem-
bly’s reaction to the recommendation made in paragraph 186 of the Com-
mission’s report to the Thirty-third Session (A/33/30), to the effect 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”. They contain
no reaction to the proposals in the same paragraph that “CCAQ should
agree on a common transitional measure” in favour of the staff members
who might have planned not to relocate after separation on the assumption
they would receive the grant.

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39. The Assembly’s reaction was not to accept a signed declaration of
intent as sufficient proof of title to payment but, considering that the
Commission ostensibly endorsed (in the above-quoted paragraph 185 of the
same report) the principle of actual relocation as an inherent condition of
payment, nevertheless to leave it to the Commission to define what proof
was sufficient. Hence it is clear from the text of General Assembly reso-
lution 33/119, read with the explanations of the co-sponsors in the Fifth
Committee, that the International Civil Service Commission had been
entrusted by the Assembly with the specific but very limited task of
establishing no more than the terms of evidence of actual relocation
through which the fact of repatriation (as elastically understood) was
henceforth to be controlled. The words “subject to” had not empowered
the ICSC to establish conditions of entitlement — that, the General
Assembly had done. À fortiori, it had no power to provide for exemptions,
to divide personnel into two different categories. It was merely to specify
what was to constitute acceptable evidence, when and how it should be
produced, etc. Instead, it produced a proposal which distorted its mandate.
The division of the expatriate personnel into two categories, to one of
which — by far the greater — exemption was granted, and the prescription
of an artificial date (1 July 1979) making a distinction between them were
obviously contrary to the will of the legislator, and the strength of the
Assembly’s reaction is fully comprehensible. The Commission appeared, in
respect of the overwhelming majority of serving staff members of the
Secretariat, to have gone back upon the arguments it had presented to the
Assembly in its own report (A/33/30), ignored the basis of its own
recommendations therein (the last of which had set no higher than an
“assumption” what it now endeavoured to transform into a right) and, in
introducing transitional arrangements, disregarded the limited nature of
the delegation of power conferred upon it by the Assembly. For it was quite
obvious that by resolution 33/119 the Assembly had envisaged the appli-
cation of the new (though always inherent) requirement of evidence to all
“entitled staff members”, and this is made clear by its adoption of reso-
lution 34/165.

40. It may be argued, at a pinch, that the general mandate of the ICSC
enables it to institute (via executive heads) transitional arrangements in
order to avoid hard cases and anomalies or to preserve acquired rights. On
the question of acquired rights, let me just say for the moment that this is a
question of entitlement and that the ICSC is not empowered by its Statute
(see Art. 11) to stipulate entitlements within the purview of Article 10 (c),
which places, inter alia, repatriation grant under the direct authority of the
General Assembly. But, be that as it may, even if the ICSC can institute

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transitional arrangements, is it conceivable that it could do so in such a way
as to exempt from a General Assembly decision the vast majority of those
to whom the Assembly intended it to apply ? The Commission had no
implied powers herein, for it should not be forgotten that the implied
powers of an organ are limited to those which, though not expressly
provided for in its statute, “are conferred upon it by necessary implication
as being essential to the performance of its duties” U.C.J. Reports 1949,
p. 182). The Commission’s whole duty, in relation to resolution 33/119,
was to establish the terms on which evidence of relocation would be
regarded as sufficient and acceptable, in the case of all staff members
entitled to repatriation grant.

41. Faced with the “promulgated” decisions of the ICSC embodying the
unwarranted distinction between two categories of staff member, the
Secretary-General, acting under Staff Rule 112.2 and mindful of Arti-
cle XII of the Staff Regulations, amended Rule 109.5 and reported to the
Assembly accordingly. The new paragraph (/) thus contradicted resolution
33/119 in both its letter and its spirit.

42. In paragraph 23 of its 1979 report (A/34/30) the ICSC, in account-
ing for the changes introduced, stated that 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 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.” (My empha-
Sis.)

This statement, however seemingly innocuous, begged a question and
concealed an important fallacy. First, it might well have been that certain
staff members expected to receive the grant, but it was not under the
existing rule but only by virtue of the existing extra-legal practice that they
might have held that expectation. Secondly, exigibility of evidence of
relocation was no “new” condition but one inherent in the very nature of
the grant : a fortiori it could not affect the legal régime under which the
grant was paid, except in so far as it made explicit what had previously
been implicit. The ICSC ended by contradicting its own previous report to
the effect that “the conditions of entitlement to the grant have remained
essentially unchanged since... 1951” (A/33/30, para. 179), not to men-
tion the statement of its own Chairman :

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“The Commission 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.)

43. There is often virtue in a change of approach. But a far more serious
aspect of this inconsistency was the way the ICSC acted not only in con-
tradiction to its own previous view, but ultra vires against the clear and
unequivocal will of the General Assembly. For it defined the contents of its
decisions promulgated on 6 April 1979 under CIRC/GEN/39 as “mod-
ifications to the terms of entitlement to the repatriation grant ... estab-
lished in pursuance of paragraph 4 of section IV of General Assembly
resolution 33/119”. In paragraphs 38 and 39 above I believe I have amply
shown that no such sweeping mandate had been given by the cited text.
The Commission had, above all, no power to make exceptions to the
Assembly’s decision, which had been intended to affect all “entitled staff
members”. All it possessed was a delegation of power for the limited task of
defining, as I indicated above, the terms of evidence, and all such dele-
gations call for strict interpretation. The Commission apparently relied on
some legal advice but, having received it, it had no power or authority to act
the way it did but should have returned to the General Assembly and
requested new instructions. This it failed to do. The Secretary-General was
presumably aware of this situation. Yet Rule 109.5 {f), voidable from the
day it was issued, remained in force until the General Assembly returned to
the matter at the following session and abolished the provision.

XI. RESOLUTION 34/165 AND ITs AFTERMATH

44. Once the General Assembly realized the extent to which the amend-
ments to Staff Rule 109.5 frustrated the very purpose of the task it had
given to the Commission that had fostered them, it reacted, not surpris-
ingly, to put an end to an abnormal situation, by adopting on 17 December
1979 resolution 34/165, to take effect as from the beginning of the fol-
lowing month (i.e., in 15 days) which happened also to be the beginning of
the next calendar year. Accordingly, the Secretary-General abolished the
short-lived Staff Rule 109.5 ff).

45. Since Mr. Mortished made his claim after that abolition, and hence
the institution of a new rule corresponding to the new resolution of the
General Assembly, the Secretary-General refused him a repatriation grant
when he failed to produce the necessary evidence.

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XII. THe TRIBUNAL’S HANDLING OF MATERIAL QUESTIONS OF LAW

46. Competent as it is to adjudicate disputes concerning the terms of
appointment and conditions of service of United Nations staff members,
the United Nations Administrative Tribunal has constantly to apply and
interpret United Nations Staff Regulations and Rules. When the General
Assembly was considering the establishment of the Tribunal, the prudent
view was expressed that :

“The Tribunal would have to respect the authority of the General
Assembly to make such alterations and adjustments in the staff reg-
ulations 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.” (General Assem-
bly Official Records, Fourth Session, Plenary Meetings, Annex, Agenda
Item 44, doc. A/1127, p. 168, para. 9.)

The relevant report of the Fifth Committee adds :

“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 interpretation.” (Ibid.)

Thus this “interpretation” of the Tribunal’s responsibility towards the
intent of the Assembly was quasi-unanimous. The present case pre-emi-
nently calls for examination of the question whether the Tribunal, in
Judgement No. 273, took these requirements into account. It may have
disregarded them and thus erred within the sphere of the law it had to
apply.

47. The Administrative Tribunal, in Judgement No. 273 shows at var-
ious points its concern with the powers of the General Assembly and the
Secretary-General and their inter-relationship, establishing (in para. IT)
the general co-ordinates thereof in terms of Articles 7, 97 and 101 of the
Charter. Subsequently (para. V) it records the basic purpose and scope of
the establishment of the International Civil Service Commission and
recognizes that the “YCSC is not competent to take decisions directly affec-
ting staff members” (my emphasis).

48. Now, although the Tribunal does not say so in terms, it appears to
suggest (in para. XIV) that the failure of the Assembly to challenge the
formal validity of the Secretary-General’s amendments estopped it in some
way from finding them materially defective. But, on the Tribunal’s own
showing, it is difficult to see how else the Assembly could have proceeded.

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The method of passing the relevant part of resolution 34/165 was in fact
the least hurtful way in which the Assembly could have exercised its
inherent power of control over the Secretary-General while not making the
strength of its disapproval of the Commission’s action too explicit.

49. Ican well appreciate that the Administrative Tribunal might scruple
to suggest that the procedure whereby the ICSC prompted the Secretary-
General to adopt Rule 109.5 {f) was not that laid down in resolution 33/119
— or was so only in outward form. I can also appreciate the argument that it
has to take Staff Rules as it finds them. But since the rule in question had its
direct origin in a General Assembly resolution and was drafted via powers
of delegation, the Tribunal might have been expected to test its pedigree. In
fact, as all the circumstances surrounding this most unusual case must have
shown the Tribunal, the General Assembly itself disowned its alleged
progeniture.

XII. ACQUIRED RIGHTS

50. I have no intention to go deeply into the subject of acquired rights.
In truth, any right validly and duly created and acquired under the rules of
a particular legal order may be an “acquired right”. The definition of these
rights, or rather the determination of their scope in most areas, had become
increasingly difficult in a world in which mutual rights and obligations are
subjected to frequent changes. In fact, it was always a vexed problem.
However, since the Staff Regulations and the Judgement of the Admin-
istrative Tribunal refer to the subject, it is difficult to avoid it. It was only
natural that Mr. Mortished should have claimed such a title in order to
show that he and other officials belonging to the same category enjoyed an
“acquired right” before the adoption of the new paragraph (f) of Rule
109.5. This is, however, not the “acquired right” recognized by the Ad-
ministrative Tribunal’s Judgement (para. XVI).

51. For the Tribunal, as pointed out, recognizes that Rule 109.5 ff}
marked “the first time that a provision of the Staff Rules acknowledged
that entitlement to the repatriation grant might exist without evidence of
relocation being provided” (para. XIII). If that is correct, the clause must
have created that right, in which case the right did not exist before and the
reasoning from 30 years’ practice is of very little value ; it is reduced to a
merely auxiliary status. If it created the right, and the Tribunal had found
that that right became for Mr. Mortished an acquired right, then the first
text I quoted in paragraph 46 becomes highly relevant.

52. But by any hypothesis, in my view, the finding of an acquired right

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in the present case fails the test. I hope to have shown, in section VIII
above, that actual repatriation, soon extended to mean actual relocation in
a country other than that of the last duty station, was a basic condition of
entitlement to receive repatriation grant.

53. The Secretary-General’s abstention from demanding evidence of
relocation throughout 30 years of paying repatriation grants amounted toa
discretionary waiver — defensible in the sense that he was dealing with
responsible ex-officials. However, this practice did not give rise to any
acquired right, because relocation remained an essential condition, and
evidence thereof remained exigible, hence the expectations the practice
may have aroused were not compatible with the basic nature of the insti-
tution. A misconception therefore underlay the initiative of the ICSC
which resulted in the introduction of Staff Rule 109.5 (/). Indeed the
Secretary-General showed that he recognized as much, when he told the
Tribunal :

“The General Assembly’s authority under Article 101 of the Char-
ter cannot be undermined by so broad a definition of ‘acquired rights’
as to encompass eligibility requirements for a repatriation grant.”
(Respondent’s Answer, para. 26.)

No sooner was the rule cancelled than the inherently discretionary char-
acter of the waiver would have become evident, had not clause (d) imme-
diately withdrawn the waiver altogether.

54. Apart from this, the discretion of the Secretary-General illustrated
by Staff Rule 104.7 (c) (quoted above) remained in force, thus enabling him
to withdraw entitlement to the grant from specifically defined staff mem-
bers. This continued to be a serious obstacle to the creation of an “acquired
right”. In my view, paragraph XVI of Judgement No. 273 of the United
Nations Administrative Tribunal erred on the relevant provision in par-
ticular as concerned the will of the General Assembly.

55. While the Court admits (para. 74) that there may be room for more
than one view on the question as to what amounts to an acquired right and
whether or not Mr. Mortished had one, the whole field of acquired rights is
one which the Opinion deliberately refrains from entering. However, the
very basis of the whole proceedings before the Tribunal and the Court is an
alleged injury sustained as the result of disregarding an acquired right by
the application of a Staff Rule which reflected a resolution of the General
Assembly. If an injury is produced through the action of an organ of the
United Nations, the relevant provision of the Charter is undoubtedly
_ involved, hence also the need to deal with the question of acquired rights in
a way which would not imply retrial of the case. One can therefore hardly
accept the Court’s approach, which amounts to an attempt to identify
two different proceedings: “retrial” and “review”, notwithstanding the
Court’s being sometimes “called upon to review the actual substance of the

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decision”, particularly in cases of this kind (1.C.J. Reports 1973, p. 188 at
para. 48). In the present instance, the Court has refused even to consider
whether the implementation of a law-making organ’s decision in a way
contrary to its will may really result in the creation of an “acquired right”.
To my mind, especially when the decision is implemented in a manner
contrary to the specific purposes for which the affected institution was
established from the outset — and which has never basically changed — no
such creation is possible, and this should have been said.

56. The further issue of retroactivity — on which there should be no
doubt — does not arise, for the simple reason that those who were entitled
to benefit from the provisions of Rule 109.5 (f) did so as long as it was in
force, 1.e., until 1 January 1980. All others feli under the régime of the Staff
Rule which was the outcome of resolution 34/165 of the General Assem-
bly. Though it may be argued that entitlements accrued to Mr. Mortished
in the course of the many years of his service in the United Nations, yet he
became a beneficiary only on separation, and Mr. Mortished was sepa-
rated from the service only in April 1980. Moreover (it is worth recalling)
the benefit is not simply one “accruing to a staff member for services
rendered before the entry into force of an amendment” (cf. UNAT Judge-
ment No. 82, para. VII) but is linked with the obligation to “relocate”, i.e.,
is intended to make up for the hardship caused by the “translocation”
which could occur only at the time of separation. The right to payment
therefore had no retroactive aspect.

57. As to excess of jurisdiction, I do not believe that the Administrative
Tribunal could be held to have exposed itself to this charge. Relying as it
did on the acquired right it held to exist in the case of Mr. Mortished, the
Tribunal was careful not to challenge the validity or legality of a General
Assembly resolution. In sum, I agree with the Court that there is no ground
for finding that the Tribunal committed an excess of jurisdiction.

58. To conclude my considerations, I regret that a series of errors has
been committed — in particular an error on a question of law relating to the
provisions of the Charter of the United Nations —, including a misreading
by the International Civil Service Commission of the unequivocal will of
the law-maker (the General Assembly of the United Nations) and of its
own terms of reference, and the recognition of allegedly created “acquired
rights”. This led to the emergence of a rule which was ill-conceived and to
which the law-maker, once apprised of it, put a rapid end.

XIV. GENERAL CONSIDERATIONS

59. Having opened my commenis on the present case by some reflec-
tions on the resolution of disputes within international organizations, I
wish to conclude them on the same theme in regard to the functions of
administrative tribunals. In fact, the Court has from the very outset been
closely connected with the subject and expressed its views on the nature

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and propriety of the functions which might be exercised by the various
bodies involved. Having regard to the Court’s utterance of 1954, the
Statute of the United Nations Administrative Tribunal was amended and
the General Assembly set up the subsidiary organ known as the Committee
on Applications, endowing it, not with judicial, but with “screening”
functions. The Court has had occasion to comment on this procedure. In
1956 it dealt with Article XII of the Statute of the International Labour
Organisation Administrative Tribunal and at the same time could consider
in such a context whether being “bound to remain faithful to the re-
quirements of its judicial character” (ZCJ. Reports 1956, p. 84), its own
Statute and functions stood in the way of its complying with a request for
an opinion. It was only in 1973 that the Court finally had to contemplate
the implications of participating in the procedure instituted by Article 11
of the Statute of the United Nations Administrative Tribunal. On that
occasion in the Fasla case, it again bore in mind the permissive wording of
Article 65, paragraph 1, of the Statute and its entitlement, in certain cir-
cumstances, to refuse to answer questions put to it. Much the same general
misgivings were expressed as in 1956 ; but more specific objections were
raised against the mysterious workings of the Committee. The Court went
on, however, to stress in an obiter dictum the necessity for consistency in the
standards applied by the Committee in assessing applications, especially
as between those emanating from staff members or from other sources. In
sum, the Court in 1973 complied with the request notwithstanding the
grave doubts entertained by many, if not all, of its Members in regard to
the basically hybrid nature of the system and the manner of its imple-
mentation.

60. However, the present case, as the Advisory Opinion stresses, differs
from the 1973 case in that the application has been made by a member
State, so that the questions of equality of the parties and the consistency of
the standards applied by the Committee arise in acute form. Moreover,
while in the Fas/a case the transcript of the proceedings before the Com-
mittee was not available to the Court, in the present one it is, but it reveals,
as indicated in the Advisory Opinion, such irregularities as the Court could
not possibly ignore. It is thus impossible not to have qualms regarding the
ostensibly unevenhanded nature of the whole procedure both in theory
and in practice. In fact the review procedure contains a built-in dilemma.
This awkward fact was mildly alluded to by the Court in 1973, when it
indicated that it did “not consider the review procedure provided by
Article 11 as free from difficulty” UZ. CJ. Reports 1973, p. 183 at para. 40). I
wish to recall that, while sharing the views of the Court at the time, I went
much further, stating :

“There would, perhaps, be little point in adverting to this problem if
the sole choice for the future appeared to lie between judicial control
of the kind exemplified by the present proceedings and no judicial
control at all.” (bid. p. 214.)

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What I had in mind was a serious improvement of the existing machinery
and its revision so that it would “be free from difficulty and more effec-
tive”. I saw “no compelling reason, either in fact or in law, why an
improved procedure could not be envisaged” (ibid.). In the light of the
experience in the present case, the need for this improvement has been
amply confirmed. I am gratified to note that the Court, in the Advisory
Opinion, has made some comments to the same effect. In reiterating my
views, I feel that the procedure is in need of some radical change.

61. In the same context, nine years ago, I made another observation
concerning the “discrepancy between the two systems of review : one
established by Article XII of the Statute of the ILO Administrative Tri-
bunal and the other by Article 11 of that of the United Nations Admini-
strative Tribunal” (ibid.). 1 expressed my regret on account of the diver-
gences which existed in the nature of the protection afforded the staff
members of different international organizations. Indeed the situation
created by this discrepancy is one which should raise very serious reser-
vations, for it has no rational foundation. Almost all the organizations
which accepted the jurisdiction of the ILO Administrative Tribunal belong
to the United Nations family and it is difficult to explain, still less to
justify, why the protection offered to one group of officials should be
different from that enjoyed by others. I therefore pleaded for greater
co-ordination and uniform procedures in both cases. Can there be any
doubt that the personnel employed by the United Nations and the many
other organizations belonging to one family in the international civil
service should be subject to a uniform régime and the same legal protec-
tion ? The establishment of the International Civil Service Commission
with the task of elaborating a uniform system and status embracing the
personnel of the international organizations, the not-infrequent transfer of
persons from one organization to another, are important factors indicating
the trend in the same direction of uniformity. This need is further stressed
by two contradictory opinions handed down by the two tribunals on the
very same subject, a danger which may increase with the passage of
time.

62. I have felt, moreover, that the goal of equal protection for all
members of the international civil service could best be achieved in the
long run if the tribunals were fused into one institution, located so as to be
easily accessible, which would take under its wing all persons employed by
international organizations of the United Nations family, and possibly
others. I find confirmation in the suggestion of the General Assembly that
the Secretary-General and the Administrative Committee on Co-ordina-
tion should “study the feasibility of establishing a single administrative
tribunal for the entire system” (cf. General Assembly resolutions 33/119
and 34/438). The work on the subject was intended to afford an oppor-
tunity also to study possible unification of the procedures of the United
Nations Administrative Tribunal and the ILO Administrative Tribunal

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and to remove certain imperfections in the present Statutes of both, with a
view to strengthening the common system.

63. In compliance with these resolutions, consultations took place
between the representatives of the organizations which have accepted the
jurisdiction of one or other of the two tribunals. The idea itself is not new
and was pointed out by the first President of the Administrative Tribunal
of the United Nations, Mrs. S. Bastid. It was in fact to be expected that the
coming into existence of the United Nations would establish a unique
jurisdiction, but this did not happen.

64. These consultations and the reports prepared indicate what are
alleged to be serious difficulties in the establishment of a single tribunal,
and the establishment instead of “some form of joint machinery” was
suggested. I am confident, however, that a harmful tendency leading to the
multiplication of organs entrusted with similar or even identical functions
and the growth of international bureaucracy will be arrested. Without
entering into the sphere of practical considerations which it would be
improper for me to embark upon, I am of the view that one administrative
tribunal could really solve the problems which face all organizations, even
those which do not come within the United Nations system. It would be
one of the practical outcomes of the guiding idea which led to the estab-
lishment of the International Civil Service Commission.

65. Here, then, I maintain my views expressed nine years ago, and
enlarge upon them in the light of subsequent experience : suggestions
concerning important changes in the procedure and guarantees, the even-
tual fusion of tribunals. All this in order to establish a sound, properly
functioning system which would secure the effective administration of
justice in accordance with universal standards. It may be timely, on that
occasion, to review and consolidate the internal law of international orga-
nizations in view of the conflicts and inadequacy of a number of regula-
tions and rules in the systems.

(Signed) Manfred Lacus.

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