Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS A. Decisions of the Administrative Tribunal of the United Nations2

1. JUDGEMENT NO. 326 (17 MAY 1984): FISCHMAN V. SECRETARY-GENERAL OF THE

   UNITED NATIONS3

   Question of change of nationality of a staff member during the period of service—Discretionary power of the Secretary-General in regard to such change under the Staff Regulations and Rules—General human rights cannot be confused with particular conditions of service which govern the employment contract

   The Applicant, a staff member of the United Nations under a permanent appointment, had requested the Tribunal to order the Secretary-General to rescind his decision refusing to allow the Applicant to sign a waiver of privileges and immunities in order to acquire permanent resident status in the United States. The Applicant had claimed the right to acquire permanent residence and asserted that the Secretary-General's refusal of permission to waive privileges and immunities, as required by United States law as a pre-condition to the acquisition of that status, in effect prevents him from eventually changing his nationality, thereby violating the Universal Declaration of Human Rights which in its article 15 proclaims inter alia that "no one shall be.. . denied the right to change his nationality".

   The Tribunal recognized the importance of the principles embodied in the Universal Declaration, but found that the Applicant's reliance thereon was misplaced in this case. It noted that the conditions of employment in the United Nations did not a priori exclude any change in nationality during the period of service but that the Staff Regulations and Rules left it to the discretion of the Secretary-General, within the framework of such policy as might be laid down by the General Assembly, to act in a way which made a change in nationality during the time of the service possible or not. That was by no means contrary to any principle of any international instrument on human rights since every staff member might at any time resign from his post and release himself thereby from all constraints of the service. The Tribunal consequently found that the Applicant's allegation concerning the infringement of his rights under the Universal Declaration of Human Rights was unfounded and that he had "confused general human rights with particular conditions of service which govern his employment contract (Judgement No. 66: Kharkine)".4

   For the above reasons, the Tribunal rejected the application.

2. JUDGEMENT NO. 332 (29 MAY 1984): SAN JOSE V. SECRETARY-GENERAL OF THE

   UNITED NATIONS5

   Issue ofG-5 visas for household employees of staff members—Distinction in treatment between General Service staff and Professional staff

   The Applicant, a locally recruited General Service staff member of the Secretariat of the United Nations, had alleged that the administration had taken an arbitrary decision which had caused her to be denied a G-4 visa to enable her to bring into the United States a domestic servant from a country of which she was a national. The Applicant had appealed a decision of the Visa Committee not to consider her request for a G-4 visa for a household employee because the Committee had decided that General Service staff who had not been internationally recruited ought not be eligible to receive visas for household employees.

   The Tribunal noted that the grant of a G-5 visa had been made solely in the interest of the United Nations and that no staff member had a right to any such visa, but that the Visa Committee had, in 1976, changed its previous practice and adopted a procedure which precluded consideration of requests from locally recruited General Service staff. The motivation for the new restrictive policy was that the grant of G-5 visas was more likely to lead to abuse in the case of General Service staff than of the Professional staff. The Tribunal noted that the purpose of the revised terms of reference was to counter the abuse feared by the Visa Committee, under colour of a distinction between internationally and locally recruited staff, by excluding from consideration all applications from locally recruited staff, who were almost invariably General Service staff and not Professional staff. Although the revised terms of reference did not specifically mention General Service or Professional staff, the underlying intention was apparent from all the circumstances and from the terms of the memorandum by which the Secretary of the Visa Committee had advised the Applicant of the denial of her request, which specifically mentioned the exclusion of General Service staff. The Tribunal concluded that the administration's failure to consider the Applicant's request was discrimination amounting to a denial of due process of law.

   For the foregoing reasons, the Tribunal ordered the rescission of the decision not to consider, on the merits, the Applicant's request for a G-5 visa. The Tribunal further ordered that any request for a G-5 visa made by the Applicant should be submitted to the Visa Committee for consideration on its merits. Should the Secretary-General decide, in the interest of the United Nations, that the Applicant should be compensated without further action being taken in her case, the Tribunal fixed the amount of compensation to be paid to the Applicant at three months' net base salary.

3. JUDGEMENT NO. 333 (8 JUNE 1984): YAKIMETZ V. SECRETARY-GENERAL OF THE

   UNITED NATIONS6

   Non-renewal of fixed-term appointment on secondment—Question whether the Applicant was given "every reasonable consideration" for career appointment pursuant to General Assembly resolution 37/126

   The Applicant, a staff member of the United Nations on fixed-term appointment on secondment, whose appointment had expired some months after he had renounced all ties with the seconding State and had applied for asylum in the host State, appealed an administration decision not to extend his United Nations service. The Applicant claimed that he had a legally and morally justifiable expectancy of continued United Nations employment and a right to reasonable consideration for a career appointment.

   The Tribunal confirmed that the Secretary-General's decision did not violate the staff member's rights. The Tribunal, however, expressed its dissatisfaction with the failure of the Respondent to record sufficiently early and in specific terms the fact that he had given the question of the Applicant's career appointment "every reasonable consideration" as enjoined by General Assembly resolution 37/126, the relevant part of which reads as follows: [The General Assembly] "Decides that staff members on fixed-term appointments upon completion of five years of continuing good service shall be given every reasonable consideration for a career appointment."7 The Tribunal was unanimous in finding that the Applicant had no expectancy of further employment and held, by majority, that the Applicant had received every reasonable consideration for a career appointment pursuant to the above-quoted General Assembly resolution.8

4. JUDGEMENT NO. 334 (23 OCTOBER 1984): MORIN V. SECRETARY-GENERAL OF THE

   UNITED NATIONS9

   Question whether accident was "attributable to the performance of official duties on behalf of the United Nations" within the meaning of article 2 of appendix D to the Staff Rules —Question of competence to pronounce a medical opinion

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   The Applicant, a former technical assistance expert with UNCTAD, requested the Tribunal: (a) to rescind the determination by the Respondent, made on the advice of the Advisory Board on Compensation Claims (ABCC), that the Applicant was not on duty at the time of an accident in which he was injured, and was, therefore, not entitled to compensation for injury pursuant to appendix D to the Staff Rules; (b) to rescind the determination by the United Nations Medical Director in connection with the Applicant's fitness to return to duty after his injury; and (c) to appoint a medical panel to evaluate the degree of permanent disability resulting from his injury and to order compensation in respect of the Applicant's three years of inactivity after his injury.

   The Tribunal regretted the failure of ABCC to explain its two recommendations to the Secretary-General and found that the Applicant was in fact on duty at the time of the accident in which he was injured. Accordingly, the Tribunal decided that the accident was "attributable to the performance of official duties on behalf of the...