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The United Nations Secretariat—Some Constitutional and Administrative Developments

Published online by Cambridge University Press:  30 March 2017

Maxwell Cohen
Maxwell Cohen*
Affiliation:
McGill University; Canadian Branch of the International Law Association
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Extract

The personnel difficulties of the United Nations Secretariat, so much dramatized since 1952, have served to focus exceptional attention on the Secretary General and his employment policies, as well as on the constitutional position of the Secretariat, its staff and their relations to the General Assembly and to the Administrative Tribunal. Indeed a substantial literature examining these issues —issues arising, in part, out of the United States’ allegations of “subversive” personnel in the Secretariat—now must be added to the already imposing structure of scholarship dealing with international organizations and officials since their beginnings in the League system and into the United Nations period.

Type
Research Article
Information
American Journal of International Law , Volume 49 , Issue 3 , July 1955 , pp. 295 - 319
Copyright
Copyright © American Society of International Law 1955

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References

1 Cohen, , “The United States and the United Nations Secretariat—A Preliminary Appraisal,” 1 McGill Law Journal 169 (1953)Google Scholar; Cohen, “The United Nations Secretariat and the Eighth General Assembly,” Proceedings and Committee Reports of the American Branch of the International Law Association, 1954, p. 10; Green, , “The Status of the International Civil Service,” 6 Current Legal Problems 192 (1954)Google Scholar; Friedmann, , “The United Nations and National Loyalties,” 8 International Law Journal 17 (1952–53)Google Scholar; Anon, ., “Subversions in the United Nations,” 5 Stanford L. Rev. 769 (1953)Google Scholar; Anon, ., “Idéologies Nationales et Fonetion Publique Internationale,” 81 Journal du Droit International 276 (1954)Google Scholar; Scott, , “The World’s Civil Service,” International Conciliation, No. 496 (Jan. 1954), 296–314 Google Scholar; Rolin, “Les Licenciements au Secretariat de l’O.N.U.—Discours Prononcé au Senat,” Jan. 20, 1953; K. G., “International Officials—A Question of Loyalties,” World Today (Nov. 1954) 488; Lie, In The Cause of Peace 386–405 (1954); Rolin, “Advisory Opinion on Rights and Obligations of International Civil Servants,” M FICSA/4/53 (1953); Schwebel, , “The International Character of the Secretariat of the United Nations,” 30 British Year Book of International Law (hereinafter cited as Brit.Y.B.) 71 (1953).Google Scholar

2 Kunz, , “Privileges and Immunities of International Organizations,” this Journal (hereafter cited as A.J.I.L.), Vol. 41 (1947), p. 828 Google Scholar, particularly p. 830, note 13; Cohen, loc. cit., at 170–171, note 4. Both of these footnotes set out a substantial part of the Anglo-French bibliography in this field.

3 Walters, A History of the League of Nations 419–420 (1952); Ranshofen-Wertheimer, The International Secretariat, at 16 et seq. (1945); Scott, op. cit, supra note 1, at 260–262.

4 Kunz, loc. cit. supra note 2, at 828–831; Cohen, 1 McGill Law Journal 170–172 (1953).

5 Walters, op. cit. supra note 3; Kunz, loc. cit. at 832.

6 Green, loc. cit. supra note 1, at 193.

7 For a major contribution to focusing attention on these constitutional developments, see Jenks, , “Some Constitutional Problems of International Organizations,” 22 Brit. Y.B. 1 (1945)Google Scholar; for a useful bibliography in this field, see Sohn, Cases and Materials on World Law 1–6 (1950).

8 See citations referred to above in notes 2 and 3, passim.

9 Hill, The Immunities and Privileges of International Officials 138, 173–188 (1947).

10 Id. at 16–17.

11 Id. at 24–25; Ranshofen-Wertheimer, op. cit. supra note 3, at 266–267.

12 Lie, op. cit. supra note 1, at 43; Walters, op. cit. supra note 3, at 75–79.

13 Memorandum by the International Labor Office, in Written Statements to the International Court of Justice in the Matter of Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, Distr. 54/17, p. 26, at 31–36.

14 Schwartz, French Administrative Law and the Common Law World 87–88 (1954).

15 Shenton v. Smith [1895] A.C. 229; Mustoe, The Law and Organization of the British Civil Service 132–136 (1932); Dawson, The Civil Service of Canada 178–180 (1929).

16 Ranshofen-Wertheimer, op. cit. supra note 3, Ch. XVIII.

17 League of Nations Official Journal, 9th Yr., No. 5 (May 1928), at 751, Annex 1.

18 See excerpt from Report of League Supervisory Commission, in Written Statement by the Secretary General of the United Nations, op. cit. supra note 13, at 199.

19 Ranshofen-Wertheimer, op. cit. supra note 3, at 245, for the form of the oath or “declaration of fidelity” instituted in 1932.

20 Ibid. for an early U. S. concern that the declaration of fidelity may put the Organization above the employee’s allegiance to his national government.

21 Lie, op. cit. supra note 1, at 39–54; Sehwebel, The Secretary-General of the United Nations 30–48 (1952).

22 Report of the Preparatory Commission of the United Nations (1946), U.N. Doc. PC/20, Chs. VII, VIII.

23 Art. 7.

24 Arts. 97, 101.

25 Arts. 104, 105.

26 Art. 100.

27 Arts. 6, 7.

28 Art. 17.

29 Art. 101 (1).

30 Art. 22.

31 11–12 U.N. Treaty Series 11; 43 A.J.I.L. Supp. 8 (1949); cf. Brandon, , “The Legal Status of the Premises of the United Nations,” 28 Brit. Y.B. 90 (1951)Google Scholar.

32 Art. III, Sees. 7, 8.

33 Art. III, Sec. 9.

34 Arts. II and III.

35 Art. II, Sees. 4, 5 and 6.

36 Art. III, Sees. 7, 8, 9, and Art. VI, Sec. 16; Art. VII, Sees. 17, 18 and 19.

37 Art. IV, Sees. 11, 12 and 13.

38 Art. V, Sec. 15.

39 Art. VIII, See. 21.

40 Ranshofen-Wertheimer, op. cit. supra note 3, at 265–273; Hill, op. cit. supra note 9, at 24–29.

41 Op. cit. supra note 22; text of convention in 43 A.J.I.L. Supp. 1 (1949). The provisions of the Headquarters Agreement and the convention overlap, see 1 U.N. Treaty Series 15 (1946), Art. I, Juristic Personality; Art. II, Property Funds and Assets; Art. III, Facilities in Respect of Communication; Art. IV, The Representatives of Members (Privileges and Immunities). The provisions governing the Secretary General and staff are to be found in Arts. V, VI and VII. It is Art. V, Sec. 19, that confers diplomatic status on the Secretary General and Assistant Secretaries General.

42 Art. V, Sec. 18 (a).

43 Id. Sec. 18 (b).

44 Id. Sec. 18 (c).

45 Id. Sees. 20, 21.

46 Art. VI.

47 Art. VIII, Sees. 29, 30.

48 59 Stat. 669 (1945); 22 U.S.C.A. §§ 288 ff.; 40 A.J.I.L. Supp. 85 (1946).

49 See Handbook on Legal Status, Privileges and Immunities of the United Nations, U.N. Doc. St/LEG/2, at 277–334, for Federal and State laws, regulations etc. concerning the United Nations and other international organizations.

50 U.N. Doc. ST/AFS/SGB/94; U.N. General Assembly Bes. 590 (IV) (Feb. 2, 1952), effective March 1, 1952.

51 Ibid.; Preamble (Scope and Purpose): “… The Staff Regulations embody the fundamental conditions of service and the basic rights, duties and obligations of the U.N. Secretariat. They represent the broad principles of personnel policy for the staffing and administration of the Secretariat. The Secretary-General as the Chief Administrative Officer shall provide and enforce such Staff Rules consistent with these principles as he considers necessary.”

52 Reg. 1.1 (international, not national responsibilities); Reg. 1.3 (no instructions from any authority external to the Organization); Reg. 1.4 (behave in manner befitting international civil servant); Reg. 1.5 (discretion in all matters of official information); Reg. 1.7 (no candidacy for public office); Rule 101.6 (no outside activities that may be prejudicial; no making of speeches, radio engagements, magazine articles etc.).

53 Reg. 10.1; Reg. 10.2.

54 Rule 110.1 (Joint Disciplinary Committee); Reg. 11.1 (Appeals); and Rule 111.1, 111.2, 111.3 (Joint Appeals Board, Composition and Procedures).

55 Reg. 8.2 and Rule 108.2.

56 Reg. 4.1 (appointment); Reg. 4.2 (appointment, transfer and promotion); Reg. 9.1 (a) (termination of permanent contract-holders on grounds of abolition of post, unsatisfactory services or health), (b) (termination of fixed-term appointment same as in (a) plus any other reason in letter of appointment), (c) (termination of temporary appointments, and permanent contract-holders still on probation in any case where it is in the interests of the United Nations); Reg. 10.2 (summary dismissal for. “serious. misconduct”).

57 Reg. 9.1 (c).

58 Reg. 9.1 (a).

59 Reg. 10.2.

60 U.N. Doc. A/CN.5/2, hereafter referred to as Statute.

61 Statute, Art. 2.

62 Ibid.

63 Art. 7.

64 Art. 9.

65 Report of the Secretary-General on Personnel Policy (Jan. 30, 1953), U.N. Doc. A/2364, at 14: “… during the last nine months of 1946 some 2500 members were given appointments.”

66 Schwebel, op. cit. supra note 21, at 56–68.

67 Secretary-General’s Note to Correspondents, No. 582, Jan. 2, 1953, p. 2: “At that time … the United States Government did not wish to recommend United States citizens for employment or give official support or clearance to applicants and staff members.”

68 Schwebel, op. cit. supra note 21, at 56.

69 See Statement by Assistant Secretary-General for Administrative and Financial Services, Dec. 23, 1952, in Annex I to Report, op. cit. supra note 65.

70 Ibid.

71 See Statement by Secretary-General Lie on Personnel Policy to the Plenary Meeting of the General Assembly, resumed Seventh Session, March 10, 1953: “[speedy recruitment] … was necessary because the Organs of the United Nations took up their responsibilities almost immediately on a broad scale of activity and the Secretariat had to be created to serve them.”

72 Cf. Report of Senate Committee on Finance on Immunities for International Organizations, Dec. 18, 1945, S. Rep. No. 861, 79th Cong., 1st Sess. (reprinted in S. Doc. No. 87, 83rd Cong., 2nd Sess., Review of United Nations Charter, A Collection of Documents 88–93).

73 Report, Annex I, op. cit. supra note 69, at 2–3; Statement, op. cit. supra note 71: “the assistance … was not satisfactory although helpful in some respects.”

74 Report, op. cit. supra note 65, pars. 47, 59.

75 Ibid., par. 48 (re Grand Jury Proceedings); pars. 55–57 (re Internal Security Subcommittee of the United States Senate proceedings, where 17 members of the staff invoked the privilege against self-incrimination).

78 Cohen, loc. cit. supra note 1, at 179.

77 Report, op. cit. supra note 65, passim.

78 Exec. Order No. 10422, 18 Fed. Reg. 239 (1953); Exec. Order No. 10459, amending Exec. Order No. 10422, 18 Fed. Reg. 3183 (1953).

79 Opinion of Commission of Jurists (hereafter called Jurists’ Opinion), U.N. Doc. A/FNF/51; also reprinted as Annex III to Report, op. cit. supra note 65, and in 47 A.J.I.L. Supp. 87 (1953).

80 Cohen, loc. cit. supra note 1, at 181, for a summary of the questions put to, and findings made by, the Jurists.

81 Ibid.

82 Report, op. cit. supra note 65, at par. 64.

83 Jurists’ Opinion, op. cit. supra note 79, Pt. VII.

84 Ibid., Pt. VI.

85 This was the Secretary General’s interpretation of the opinion; see Report, op. cit. supra note 65, pars. 92–98.

86 Exec. Order No. 10459 (cited supra note 78), amending No. 10422, Pt. II, Sec. 1: “The standard to be used … shall be whether or not on all the evidence there is a reasonable doubt as to the loyalty of the persons involved to the Government of the United States.”

87 Report, op. cit. supra note 65, par. 64; Statement, op. cit. supra note 71.

88 Report, cited supra note 65, at pars. 71–72.

89 Judgments of the Administrative Tribunal of the United Nations, U.N. Docs. AT/DEC/18 to AT/DEC/38, Cases Nos. 26–46 inclusive.

90 Mr. Dag Hammarskjøld was installed as Secretary General on April 10, 1953.

91 U.N. Doc. A/2533, Report of the Secretary General on Personnel Policy, Nov. 2, 1953.

92 Ibid. at pars. 58, 68, 73, 79; also Annex IV.

93 Ibid., at par. 81.

94 Ibid. at pars. 88–108; cf. Memorandum of Secretary General to members of the staff re Organization of the Secretariat, U.N. Doc. ST/SGB/99.

95 See Written Statement by the Secretary General of the United Nations, in Written Statements, op. cit. supra note 13, at 206–211; cf. Statute of the Administrative Tribunal of the International Labor Organization (adopted Oct. 9, 1946), 29 I.L.O. Official Bulletin 319–322.

96 See Written Statements, op. cit. supra at 211–217, for a summary of the discussions in the Fifth Committee and elsewhere as to the views of Member States concerning the nature of the Tribunal and its functions.

97 See Rules Adopted by the Administrative Tribunal June 7, 1950 (as amended Dec. 20, 1951, U.N. Doc. A/T/7), Ch. III, Arts. 7–12 (Written Proceedings); Ch. IV, Arts. 13–15 (Oral Proceedings).

98 Art. 12.

99 Hourani and 4 others, Cases Nos. 17 to 21, AT/DEC/4, particularly p. 10; cf. Staff Reg. 9.1 (c).

100 Judgments, loc. cit. supra note 89.

101 See Written Statement, loc. cit. supra note 95, at 172.

102 Case No. 37, Judgment No. 29, U.N. Doc. AT/DEC/29.

103 Ibid. at 8–9.

104 Davis, Administrative Law 868–870, and 902–905 (1951); Dickinson, Administrative Justice and the Supremacy of Law 168 (1927).

105 Op. cit. supra note 91.

106 New York Times, Sept. 27, 1953, See. 1, pp. 1, 37, and See. 4, pp. 1–2; also Oct. 2, 1953, p. 6.

107 Annual Report of the Secretary General 1953–1954, U.N. Doc. A/2663, p. 118.

108 For a summary, see Cohen, loc. cit. supra note 1, at 189–191.

109 Report, op. cit. supra note 91, pars. 68–72.

110 Ibid. pars. 73–77.

111 Ibid. pars. 58–67, 79–80.

112 U.N. Doc. ST/AFS/SEB/A/231, and supplementary Rules in ST/SGB/94, Amend.; cf. 21st Report of Advisory Committee on Administrative and Budgetary Questions to the Eighth Session of the General Assembly, U.N. Doe. A/2555.

113 ST/SGB/94, Amend. 1, p. 3; General Assembly Res. 782 (VIII).

114 Staff Reg. 9.1 (a) (i).

115 Staff Reg. 9.1 (a) (ii).

116 This is an unnumbered final paragraph in Reg. 9.1 (a). These provisions are all additional to the existing powers in 9.1 (a) to dismiss permanent contract-holders for abolition of post, unsatisfactory services and incapacity by reason of health; there is also the summary dismissal provided for in Reg.10.2 for “serious misconduct.”

117 Report, op. cit. supra note 91, par. 54; also see par. 35 for similar sentiments.

118 Ibid.; see also par. 66.

119 Ibid. par. 35; see also pars. 37–38: “In the constitutional traditions of a great number of countries the control upon the chief executive … is what may be called a parliamentary one.”

120 Ibid.

121 General Assembly Res. 782 (VIII) C.

122 Ibid. Pt. B.

123 [1954] I.C.J. Rep. 47; 48 A.J.I.L. 655–660 (1954).

124 49 Id. at 6–9 (1955).

125 [1954] I.C.J. Rep. 51–61.

126 Written Statements to the International Court of Justice in the matter of Awards of Compensation made by the United Nations Administrative Tribunal, Distr. 54/17.

127 Ibid. at 115–135.

128 Ibid. at 166–167.

129 Ibid. at 109–110.

130 Ibid. at 22.

131 Supra note 123, at 61: “… it is common practice in national legislatures to create courts with the capacity to render decisions legally binding on the legislatures which brought them into being.”

132 Report of the Secretary General on Personnel Policy of the United Nations, U.N. Doc. A/2777; also Report of the Fifth Committee, U.N. Doc. A/2862.

133 Organization of the Secretariat, Report of the Secretary General, U.N. Doc. A/2731.

134 Report of the Fifth Committee re Awards of Compensation Made by the United Nations Tribunal; Advisory Opinion of the International Court of Justice, U.N. Doc. A/2883.

135 Report, op. cit. supra note 132, at 7.

136 Supra note 113.

137 U.N. Doc. COORD/CIVIL SERVICE.

138 Op. cit. at 4.

139 Draft resolution of Argentina and U. S. A., U.N. Doc. A/C. 5/L. 317, as amended by U.N. Doc. A/C. 5/L. 321, and U.N. Doc. A/C. 5/L. 321, Rev. 1; also Belgian draft, A/C. 5/L. 322.

140 Cited supra note 132, at 16–18.

141 U.N. Doc. A/L. 192.

142 Provisional Record, U. N. Doc. A/P.V. 515, at p. 18.

143 Ibid. at 21–22.

144 Ibid. at 46.

145 UNESCO Doe. 8C/ADM/14 (Aug. 30, 1954), Personnel Policy, Obligations and Rights of Staff Members: Proposed Amendments to the Staff Regulations; and see also, General Conference resolution adopting amendments similar to those passed by the U.N. Eighth General Assembly, 8C/ADM/35 (Prov.), Dec. 6, 1954, pp. 22–23.