1 Introduction to the Report of the Secretary-General on the Work of the Organization, 30 GAOR, Supp. 1A, at 9. UN Doc. A/10001/Add.l (1975).

2 See, in general, Schwebel, , International Character of the Secretariat of the United Nations, 30 Brit. Y.B. Int'L L. 71 (1953)Google Scholar; Jenks, , Some Problems of an International Civil Service. 2 Report of the Special Committee for the Review of the United Nations Salary System, 27 GAOR, Supp. 28, at 132 Google Scholar, UN Doc. A/8728 (1972). See ako infra note 71.

3 Russell & Muther, A History of the United Nations Charter 369-77, 431-32, 854-62, 992 (1958). Postwar Foreign Policy Preparation 1939-1945, Dept. of State Pub. 3580 at 476, 528, 590-91, 605, 618 (1950). 3 UNCIO 22. 7 UNCIO 106-07, 280-81, 387, 389-95, 505-12, 556-58. 8 UNCIO 332-33. United Nations Conference on International Organization: Report on The Conference Held at San Francisco 25 April-26 June, 1945, by The Rt. Hon. Peter Fraser, Chairman of the N EW Zealand Delegation 35-36 (1945). Report of the Canadian Delegation on The United Nations Conference on International Organization, Held at San Francisco, 25th April-26th June, 1945, at 58-60 (1945).

4 Compare with Article 6(3) of the Convenant of the League of Nations, according to which the staff of the Secretariat was to be appointed by the Secretary-General with the approval of the Council. Nevertheless, in a number of cases, the UN General Assembly has decided that certain senior officials should be elected or confirmed by it (High Commissioner for Refugees, Secretary-General of the United Nations Conference on Trade and Development, Executive Director of the United Nations Environment Programme, Executive Director of the United Nations Industrial Development Organization). Such decisions are of questionable validity under the Charter. They are indicative of the growing autonomy of a number of senior officials, often with independent power bases (influential states or groups of states) and of the continuing erosion of the powers of the Secretary-General. These developments, as well as successful claims by some states and groups of states to certain posts as their permanent “preserves,” contribute to the “balkanizaion” of the Secretariat.

5 According to the unpublished and uncorrected verbatim minutes of the 19th Meeting of Committee I/2, the principle of regional representation was implicit in the comments of Greece. Belgium, the Ukrainian SSR, and, more explicitly, the Soviet Union all interpreted “geographical basis” as referring to individual states and to nationality.

6 Report of the Preparatory Commission of the United Nations, PC/20, at 92 (1945).

7 Id. at 93. Cotmpare, Report by the Executive Committee to the Preparatory Commission of the United Nations; PC/EX/113/Rev. 1, at 81 (1945).

8 Report of the Preparatory Commission, supra note 6, at 85.

9 Id. at 91.

10 PC/AB/54.

11 PC/AB/66, at 51.

12 Ibid.

13 GAOR, Plenary Meetings 157, UN Doc. A/652 (1948). See also G.A. Res. 153 (II), UN Doc. A/519, at 62 (1947).

14 Secretary-General's Bulletin No. 77, 3 GAOR, Plenary Meetings 160 (1948).

15 16 GAOR, Annexes, Agenda Item No. 61, UN Doc. A/4776 (1961).

16 Id . , Agenda Item No. 64, at 20-22, UN Doc. A/5063 (1961).

17 17 GAOR, Annexes, Agenda Item No. 70, at 10; G.A. Res. 1852 (XVII), id. Supp. 17, at 53, UN Doc. A/5217 (1962).

18 Excluded from the geographical distribution were professional posts requiring special language qualifications, General Service category posts (as well as manual labor and security posts), posts filled after interagency consultations, expert posts inthe technical cooperation programs, and posts in programs financed by voluntary contributions.

19 UN Doc. A/10184, at 7-9 (1975). Calculated for 138 states and 2400 posts, and on the basis of the median of the desirable ranges, the weight of the membership factor was 20.1 percent, of the population factor 8.3 percent, and of the contributions factor 71.7 percent (1975). On June 30, 1975, there were 485 U.S. nationals in posts subject to geographical distribution (desirable range: 358-523). For the breakdown of the staff subject to geographical distribution by nationality and level, see UN Doc. A/10184, Table 8.

20 Naturally, the larger contributors resist recent tentative suggestions by the Secretary- General designed to give a greater weight to the membership factor (two to eight posts). Periodic changes in the scale of assessments affect not only the allocation of posts to the factor of contributions, but also the weight of the population factor which is calculated on the basis of the allowance made for states where the per capita income is below a certain level. UN Doc. A/10184, at 9.

21 UN Doc. A/AC.175/L.3, at 2-8 (1975). The [Gardner] Group of Experts proposed that countries within a region or within a subregion agree among themselves to pool the number of posts allocated to them for purposes of satisfying the requirements of equitable geographical distribution. A New United Nations Structure for Global Economic Co-Operation, UN Doc. E/AC. 62/9, para. 93(b), May 28, 1975. While the Secretary-General appeared to favor this regional approach, which would have given him greater flexibility, underrepresented states made it clear during the thirtieth session of the General Assembly that they would not be satisfied with the improvement of the representation of their regions and would insist on a full attainment of their own national ranges. Regarding the question of the equality of women in the Secretariat, see Szalai, The Situation of Women in the united nations, A Unitar Research Report No. 18 (1973); Women and the Un, 7 Unitar News, No. 1 (1975). Regarding the work of UNITAR on other aspects of the international civil service, see 30 GAOR, Supp. 14, at 15, UN Doc. A/10014 (1975). Jordan & Renninger, What Has Happened To Our International Civil Service (1975, UNITAR, unpublished).

22 Report of the Fifth Committee, UN Doc. A/9980, para. 45(b) approved by the General Assembly at its 2324th plenary meeting. 29 GAOR, Supp. 31, at 139, UN Doc. A/9631 (1974). One of the departments in which a cultural balance is necessary (between the common law and the civil law) is the Office of Legal Affairs.

23 Occasionally the General Assembly has paid lip service to this proposition. Report of the Fifth Committee, supra note 22, at para. 43.

24 UN Doc. A/9120, paras. 107-09 (1973).

25 In the preparation of this section the writer has been greatly assisted by a number of unpublished opinions of the Legal Counsel of the United Nations and his staff, in accordance with the understanding reached with the Legal Counsel, names of countries and individuals involved in the various opinions may not be identified. These opinions have been provided to the writer but he himself has not examined the files and thus is not familiar wih the exact factual context in which each opinion was given.

26 See supra note 13.

27 See in general, Finger, & Mugno, , The Politics of Staffing the United Nations Secretariat, 29 Orbis 117 (1975)Google Scholar. For a critical appraisal of the “bloated bureaucracy,“ “waning idealism,” and politicization in the Geneva UN Office, see The Wall Street Journal, Aug. 11, 1976, at 1, col. 1.

28 The Secretary-General has full discretion whether to extend fixed-term contracts and, in the absence of countervailing circumstances, nonrenewal does not give rise to any rights for the staff member. The Administrative Tribunal has, however, developed the legal expectancy principle, according to which the staff member has certain legal rights if in the circumstances of the case he could reasonably expect to remain in the service of the United Nations. Where legal expectancy of continued employment has been created, the claims of the staff member can be litigated by the Administrative Tribunal and, in some cases, compensation has been awarded. See Bhattacharyya v. The Secretary-General of the United Nations, Judgment No. 142; Surina v. The Secretary- General of the United Nations, Judgment No. 178; Lawrence v. The Secretary- General of the United Nations, Judgment No. 185. Compare Fracyon v. The Secretary- General of the United Nations, Judgment No. 199. No expectancy was found in the case of Nath v. The Secretary-General of the United Nations, Judgment No. 181.

29 In the 1975 case of El-Naggar v. The Secretary-General, the applicant argued, inter alia, that the reason for not converting his fixed-term contract into a career one was related to difficulties in the geographical distribution of the staff (Egypt, of which El-Naggar was a national, is overrepresented) UN Doc. AT/PV.124, at 38. The Administrative Tribunal merely held that the conversion of a fixed-term appointment into a permanent one was not “promotion” and that Saff Regulation 4.4 had no relevance either to nonrenewal of applicant's fixed-term appointment, or to denial of a permanent appointment to him. UN Doc. AT/DEC/205, at 13.

30 It must be said to the credit of the People's Republic of China that it has not tried to oust from the Secretariat members of the staff appointed during Taiwan's representation in the United Nations. Rather, they have regarded all of them as “Chinese” and enabled those who wanted to do so to visit mainland China, take up passports of the People's Republic of China, etc.

31 See supra note 22.

32 Text of Address by Secretary-General to Headquarters Staff of United Nations on Staff Day. Press Release SG/SM/1008 at 4, Sept. 20, 1968. See also El-Naggar v. The Secretary-General AT/DEC/205, at 13.

33 UNIDO, Report of the Industrial Development Board on the Work of its Eighth Session, 29 GAOR, Supp. 16, at 40-41, UN Doc. A/9616 (1974).

34 Whtteman, Digest of International Law 336 (1967). On June 30, 1975, the Secretariat employed 28 stateless persons.

35 See G.A. Res. 30(I), Feb. 9, 1946.

36 According to Staff Rule 104.4(c), a staff member who intends to change his nationality or permanent residence status must notify the Secretary-General of that intention before the change becomes final.

37 8 GAOR, Annexes, Agenda Item No. 51, at 13, UN Doc. A/2533, para. 109 (1953).

38 Id. at 25, UN Doc. A/2581.

39 Id. at 45, UN Doc. A/2615, para. 70.

40 Id. para. 69.

41 Regarding the legal regime governing the privileges and immunities of members of the staff of the Secretariat, see the International Organizations Immunities Act, 22 U.S.C. §288 et seq.; the Convention on the Privileges and Immunities of the United Nations, done at New York, Feb. 1, 1946, 2 UST 1418, TIAS No. 6900, 1 UNTS 16; the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations signed at Lake Success, June 26, 1947, 61 Stat. 3416, TIAS No. 1676, 12 Bevans 956, 11 UNTS 11. See also United States v. Melekh 190 F. Supp. 67 (S.D.N.Y., 1960) The Secretary-General and a number of senior officials enjoy broader immunities.

42 222 F. Supp; 106, at 108 (E.D.N.Y., 1963).

43 84 . F. Supp. 472, 476 (S.D.N.Y. 1949); see also United States v. Coplon, 88 F. Supp. 915 (S.D.N.Y. 1950).

44 Nath v. The Secretary-General of the United Nations, Administrative Tribunal, Judgment No. 181. Regarding present arrangements for review of staff promotion, see ST/ADM/SER.A/1934 (1976).

45 See UNDP/ADM/PER/26, UNDP/ADM/PER/60, UNDP/ADM/PER/63.

46 Supra note 6, at 87 and G.A. Res. 11(I), Jan. 24, 1946. That change with respect to the term of office of the Secretaries-General is possible is indicated by the flexibility shown by the Security Council and the General Assembly in the case of the reappointment of U Thant. See S.C. Res. 227, 21 Scor Res. and Dec. (1966) and G.A. Res. 2147(XXI), 21 GAOR, Supp. 16, at 3, UN Doc. A/6316 (1966).

47 7 GAOR, Annexes, Agenda Item No. 75, at 27 (1952). In practical terms, however, the Commission suggested that, in exercising his responsibility for the selection and retention of staff, the Secretary-General should regard it as of first importance to refrain from engaging or to remove from the staff any person whom he has reasonable grounds for believing to be engaged, to have been engaged, or to be likely to be engaged in any subversive activities against the host country. Ibid. See also infra notes 51 and 54.

48 Camargo v. The Secretary-General of the United Nations, Administrative Tribunal Judgment No. 96; Witmer v. The Secretary-General of the United Nations, Administrative Tribunal Judgment No. 194. See, however, Kimpton v. The Secretary-General of the United Nations, Administrative Tribunal Judgment No. 115.

49 See infra note 60. See also the letter of Sept. 3, 1968 quoted in UN Doc. AT/ DEC/192, at 3.

50 See infra note 66.

51 7 GAOR, Annexes, Agenda Item No. 75, at 12 (1952).

52 22 U.S.C. §287. See also 7 GAOR, Annexes, Agenda Item No. 75, at 37 (1952). Executive Order No. 10422 was recently amended by Executive Order No. 11890 of December 10, 1975, which simplified some of the procedures, and eliminated in certain cases the need to conduct a full field investigation. 40 Fed. Reg 240 (1975). The new Executive Order provides that the investigation to be conducted must be consistent with the Privacy Act of 1974, 5 U.S.C. §552a.

53 Information received from the Deptment of State. The Privacy Act of 1974, 88 Stat. 1896, 5 U.S.C. §552a, and the Freedom of Information Act of 1974, 88 Stat. 1561, 5 U.S.C. §552, may exercise a salutary restraining influence on the scope of information that is transmitted.

54 See supra note 51. In the same opinion, the Legal Counsel expressed his view that the Secretary-General should avoid any reliance on the 1952 Report of the Commission of Jurists, pointing out, inter alia, that some of the conclusions and recommendations of the Commission were invalidated by the Administrative Tribunal.

55 UN Doc. AT/PV.119, at 29-30 (Sept. 24, 1974).

56 See, e.g., The Revised Standard Agreement between the United Nations … and the Government of … in International Organisation and Integration 313 at 314 (1968).

57 See, e.g., Mirza v. The Secretary-General of the International Civil Aviation Organization, Administrative Tribunal Judgment No. 149. Legal liability towards the expert can, of course, arise as a result of the termination of a fixed-term appointment following a request of the assisted government, see Coll v. The Secretary-General of the International Civil Aviation Organization, Administrative Tribunal Judgment No. 113.

58 See the Report of the Commission of Jurists of Nov. 29, 1952, 7 GAOR, Agenda Item No. 75, at 23 and the Report of the Secretary-General of Jan. 30, 1953, id., at 3. See also Administrative Tribunal of the United Nations Judgments Nos. 29-37 and the Advisory Opinion of the International Court of Justice on the Effect of Awards of Compensation made by the United Nations Administrative Tribunal, [1954] ICJ Rep. 47. See, in general, Bastid, , Le Tribunal Administratif des Nations Unies, 22 Etudes Et Documents 17 (1970)Google Scholar.

59 One Soviet national serves on a permanent appointment. Some recent recruits from the People's Republic of China have joined the Secretariat on career appointments.

60 The Administrative Tribunal drew attention in the Levcik case where the Secretariat decided to extend Levcik's appointment for a few months despite the objections of his government, (Czechoslovakia) to a letter from the Director of Personnel to the Permanent Representative of Czechoslovakia according to which the “action” taken was of an “exceptional nature” and “did not in any sense reflect a desire … to change the policy of close consultation with the Czechoslovak authorities, which, as in the past, continues to be our rule.” See infra note 61, at 16. The practice of the Secretariat appears to be not to give serious consideration to the candidatures of Eastern European nationals who live abroad which are not submitted through government Channels.

61 Levcik v. The Secretary-General of the United Nations, Administrative Tribunal Judgment No. 192.

62 According to Higgins v. The Secretary-General of the Inter-Governmental Maritime Consultative Organization, there are “Three parties to the arrangement, namely, the releasing organization, the receiving organization, and the staff member concerned.“ Administrative Tribunal Judgment No. 92 at 50. One may wonder whether these conditions pertaining to secondment are always followed in practice. According to Staff Rule 104.12(b), fixed-term appointments may be granted for periods not exceeding five years also to persons “temporarily seconded by national Governments or institutions for service with the United Nations.“

63 It is quite possible that in March 1969 officials of the Office of Personnel acted bona fide in assuming that Levcik (like all other Eastern European nationals) must have been appointed on the basis of secondment. It is not clear at what stage the Office of the Legal Counsel became involved in the case. In any event, in the later stages, the Legal Counsel could not but buttress the position of the Secretary-General as best he could.

64 UN Doc. A/10184, Annex, Table 9 (1975).

65 Id., Table 11. Some fixed-term appointments are subsequently converted to career appointments or extended for additional periods of time. In the period 1958 to 1975, about one out of every five fixed-term appointments was subsequently converted to a career (probationary) appointment.

66 Data received from the Secretariat. The Secretariat does not maintain statistics on private individuals recruited to the Secretariat following referral by governments, but their number appears to be considerable.

67 UN Doc. A/8454, Part I, at 29-32; Part II, at 323 (1972).

68 UN Doc. A/C.5/1601, at 9 (1973).

69 2 Report of the Special Committee for the Review of the United Nations Salary System, supra note 2, at 153-54.

70 The equalization allowance which the U.S. Government may pay federal employee transferred to an international organization with respect to the difference between the monetary benefits paid by the international organization and the monetary benefits that would have been paid by the agency from which he had been detailed to serve with an international organization at least has the redeeming feature that it can be paid only after the employee's separation from the international organization and when he exercises his re-employment rights in the government. See 5 U.S.C. §3581-84; §3343. Regarding equalization payments, see section 352.310 of the Civil Service Commission's Regulations on Detail and Transfer of Federal Employees to International Organizations, Attachment to FPM Ltr. 352-3, under Executive Order 11522 of August 24, 1970. In December 1974 only 18 U.S. nationals served in the Secretariat on secondment.

71 The International Civil Servant in Law and in Fact 15-19 (Clarendon Press, 1961). Reprinted in 5 Public Papers of the Secretaries-General of the United Nations 471 at 480-83 (Cordier & Foote, eds., 1975).

72 See Russell & Muther, supra note 3, at 369-70. Hammarskjöld, supra note 71.

73 Hammarskjöld, supra note 71, at 14.