Assembly Consideration and Commentary on Report of Secretary General

Secretary General Trygve Lie's report on personnel policy, presented to the General Assembly on March 10, 1953, was followed by a full-scale debate in plenary session which resulted in an Assembly resolution expressing confidence in the Secretary General.

During the 4-day debate, most of the members evinced general support for the principles expressed in Mr. Lie's report-not without some reservations, however. Divergent views were expressed on the employment by the United Nations of anyone taking refuge in the fifth amendment. It was agreed that no grounds existed to support the charge that the United Nations was a "nest of spies.

9 83

In a statement before the General Assembly, March 28, 1953, Ambassador Henry Cabot Lodge, Jr., attempted to defend the position of the United States and the report of the Secretary General with regard to American citizens in the employ of the United Nations.

Lodge stated that the United Nations could only be an effective force if it were supported by world public opinion. Senator Wiley, chairman of the Senate Foreign Relations Committee, had aptly expressed the prevailing opinion in the United States when he said that, "There is absolutely no place in the international Secretariat for a single American Communist or any American of doubtful loyalty the United Nations should not become a haven for disloyal Americans or for espionage."

Ambassador Lodge noted in his address the request of the Secretary General that he be furnished information on current and prospective United States employees of the Secretariat to enable him better to assure that Charter standards were being met. Ambassador Lodge said the American Government agreed to do this. The information furnished the Secretary General would be regarded by the United States only as advice.

The American Ambassador assured the delegates to the Assembly that the United States was firmly convinced that the independence of the Secretariat had to be maintained. Moreover, the United States recognized the right of individuals to disagree with the policies of their governments, and that they should not be penalized for so doing. It was not the concern of the United States whether a man was a "Republican or Democrat or independent, so long as he meets the Charter standards of efficiency, competence, and integrity." Although Ambassador Lodge disagreed with several points in the Secretary General's report, on the whole he found it acceptable.84

Ambassador Lodge summarized the United States position as follows: The United States Government does not believe that persons engaged or who, based on their past and present record, seem likely to engage in subversive activities against any

88 Assembly Votes Confidence in Direction of Personnel Policy, United Nations Bulletin, vol. 14, Apr. 15, 1953, pp. 269-72 ff.

4 Henry Cabot Lodge, Jr., Maintaining Charter Standards for International Civil Servants, Department of State Bulletin, vol. 28, Apr. 27, 1953, pp. 620-23.

member state should be employed in an international organization. We will do all in our power to provide the Secretary General with the information necessary to enable him to make a determination on this matter. This does not constitute, nor is it intended to constitute, dictation to the Secretary General or other member governments. It is a service to the United Nations in the interest of maintaining a Secretariat which measures up to standards established in the Charter for international civil servants.'

As debate in the Assembly continued, Leslie Knox Munro, of New Zealand, supported the principle of a truly independent Secretariat. It was his contention that the broad membership of the Organization precluded it from acting "covertly." He continued: "Given the nature of the Organization's activities, there could be no good reason for any host state to use its sovereign powers in any way which interferred with the Organization's freedom."

The New Zealand representative warned that if national authorities attempted to exercise control over their nationals employed by the United Nations that the result would be the disintegration of the Secretariat into a "diplomatic corps of national groups, each playing for its own hand, and united by no moral bond stronger than the fact of being paid from a single budget and housed in a single building.

...

99 86

Speaking for the Netherlands, Daniel Von Balluseck agreed that governments assuredly had the right to prohibit the affiliation of its own employees with any group, party or association, but that "an international organization could not and should not apply the different and changing national standards of each and all its members." He was of the contention that there should be established one international standard based on "the laws and interests of the Organization as a whole." Mr. Von Balluseck suggested the possibility of prohibiting members of the Secretariat from being members of any political party while in international service.

87

Arne Lundberg, of Sweden, was also critical of the Secretary General's report. Lundberg was of the opinion that findings by member states, in extrajudicial proceedings, relative to the political activities of their nationals, members of the Secretariat, could not and should not be binding on the United Nations as a valid reason for discharge.

88

Sir Gladwyn Jebb, of the United Kingdom, although giving support to the Secretary General in principle, felt that too much stress had been placed on the "special" position to be accorded a "host" state. It was his opinion that the jurists were overly concerned with the allegiance of staff members to their own governments and made "too little allowance for their allegiance to the international organization in which they worked." "9

A number of other delegates spoke in defense of the Secretary General. Representatives of Poland and Byelorussia, however, were highly critical of Mr. Lie's personnel policies. They charged him with damaging the international character of the Secretariat and implied that Lie was a tool of

85 Ibid.

80 Assembly votes confidence. . ., United Nations Bulletin, Apr. 15, 1953, loc. cit.

the United States and that he conducted "a purge" in the Secretariat on "the mere suspicion of so-called subversive activities."

99.90

At the conclusion of the debate, a resolution was passed expressing confidence that the Secretary General would conduct his policies in accordance with the provisions of articles 100 and 101 of the Charter. Furthermore the Secretary General was requested to submit to the eighth session of the General Assembly a progress report on his personnel policy, and to make recommendations as "to further action that may be required of the General Assembly." "

Judgments of the Administrative Tribunal

In 1952, during the inquiries of the New York Federal grand jury and the Senate Internal Security Subcommittee, a number of United Nations temporary employees of United States citizenship were dismissed and certain permanent employees placed on compulsory leave by Secretary General Trygve Lie for their refusal to testify on the grounds of self-incrimination before these authorized agencies of the United States Government. The employment of those placed on compulsory leave was later terminated by the Secretary General following the recommendations of the Commission of Jurists.

The cases of 21 former United Nations staff members of United States nationality were appealed to the Administrative Tribunal of the United Nations on the contention that their discharge was illegal. Ten cases involved terminations of temporary appointments; 10 of permanent appointments; and 1 of summary dismissal of a permanent appointment for serious misconduct.

The seven-member Administrative Tribunal had been established by the General Assembly in 1949 with power to hear and pass judgment upon applications alleging nonobservance of contract and terms of appointment. Of the 7-member panel, no 2 could be nationals of the same state. The members of the Tribunal which dealt with the cases involving Americans of "doubtful loyalty" were: President, Madame Paul Bastid, of France; Lord Crook, of the United Kingdom; Sture Petren, of Sweden-vice presidents; and Omar Loutfi, of Egypt, alternate.92

Disputes involving the competence of the Tribunal were to be settled by the Tribunal itself. If the Secretary General determined the acceptance of a Tribunal order to be inadvisable or impossible under the original statute of the Tribunal, the Tribunal was to assess the amount of damages to be be paid by the United Nations. 93

90 Ibid.

01 Ibid.

92 Administrative Tribunal Delivers Opinions on Terminations, United Nations Bulletin, vol. 15, Sept. 15, 1953, p. 223.

United Nations Administrative Tribunal statute and rules.

Of the 21 appeals by United States nationals, the action of the Secretary General was sustained in 9 of the cases involving temporary employees; in 1 case involving a temporary employee and in the 10 cases involving permanent employees, the Tribunal's rulings were against the Secretary General. Of the 11 cases which held for the employees, 4 of the findings provided for reinstatement, the balance to receive monetary awards. In the cases of the four ordered reinstated, Secretary General Lie refused reinstatement, referring the cases back to the Tribunal to determine damages on September 2. The Tribunal handed down compensation awards October 13.

The Tribunal found for the Secretary General in the cases of Kaplan, Middleton, Rubin, Kagen-Pozner, Sokolow, Saperstein, Van Tassel, and Marjorie and Herman Zap; the four ordered reinstated were Crawford, Svenchansky, Eldridge, and Glaser; monetary awards were given Gordon, Harris, Glassman, Older, Bancroft, Elveson, and Reed. The summary dismissal case of Eugene Wallach was ordered back to the Joint Appeals Board, since the Administrative Tribunal considered the original proceedings before the Board to be irregular and thus invalid.

The Secretary General has the option of refusing reinstatement under the statute of the Tribunal where he considers reinstatement inadvisable. The total amount of damages awarded by the Tribunal, including the four cases remanded by the Secretary General after refusal to reinstate, was $170,730, plus $300 for legal costs in each case.94

The decisions of the Administrative Tribunal were in part based on the following considerations. The Tribunal was of the opinion that the Secretary General was invested under staff regulations with discretionary powers in the termination of temporary appointments; however, such discretionary powers had to be exercised without improper motives. In refusing to recognize party membership as constituting grounds for dismissal, the Administrative Tribunal noted that staff regulation 1.4 recognized the right of staff members not to give up their political convictions. Therefore, it was the opinion of the Tribunal that membership in any particular party was not, of itself, justification for dismissal in the absence of other cause. The Tribunal held that permanent appointments could be terminated only in accordance with staff regulations; thus the Secretary General was obligated to indicate under which provision he was acting. The Tribunal was critical of the opinion of the Commission of Jurists which held that the Secretary General could go beyond the provisions of the staff regulations in terminating contracts of staff members-such was held to be in opposition to the nature of contracts and the regulations governing the same as established by the General Assembly. The term "unsatisfactory services" was considered not to apply to acts outside a staff member's official duties.

The Secretary General had dismissed a number of staff members for invoking the fifth amendment. The Administrative Tribunal pointed out that:

04 AT/DEC/29, 31, 33-37, 39-42.

"Misconduct punishable under staff regulation 10 could be either misconduct committed in the exercise of a staff member's professional duties or acts committed outside his professional activities but prohibited by provisions creating general obligations for staff members. . . ." The Tribunal rejected the contention that resort to the fifth amendment constituted "serious misconduct." It noted the failure of any resort to pleading privilege to result in subsequent legal action. Moreover, the Tribunal stated: "This provision of the Constitution may be properly invoked in various situations which, because of the complexity of the case law, cannot be summarized in a simple formula." Continuing in the same vein, the Tribunal recalled that the Secretary General had paid termination indemnities to those summarily dismissed—a payment which was expressly forbidden by the staff regulations. In commenting on this action, the Tribunal stated: "The nature of serious misconduct appeared so disputable to the Secretary General that he granted termination indemnities, which are expressly forbidden by the staff regulations (annex III) in cases of summary dismissal.” 95

United States reaction to the judgments of the Administrative Tribunal was immediate and highly critical. Ambassador Lodge, testifying before the Senate Internal Security Subcommittee, on September 24, stated that he considered the turn of events to be "unjust and wrong and full of danger to the future of the United Nations." He observed that although the United States voted for the establishment of the Tribunal in 1949, originally the United States representatives had opposed the measure.

Ambassador Lodge was especially critical of the lack of United States representation on the Tribunal. "I think it is a very serious thing. When you stop to think of it, the spectacle of four foreign lawyers, sitting in Geneva, to interpret article [sic] 5 of the Constitution of the United States without any American representation being there, is in itself a fantastic contemplation. In addition, the fact that these individuals are making decisions which have a very great interest for American public opinion, without having a really correct understanding of the state of that public opinion, is in itself a most unsound device." 96

The Ambassador stated that the United States delegation would try to get the staff regulations changed by the General Assembly so that the decisions of the Secretary General would be final. With respect to the rulings of the Administrative Tribunal, it was the opinion of the Legal Adviser in the Department of State that the General Assembly could overrule the Tribunal. However, this opinion was not shared by many other members of the United Nations, 97

05 AT/DEC/29 to 37.

U. S. Senate. 83d Cong., 1st sess. hearings before the subcommittee to investigate the administration of the Internal Security Act ... on activities of United States citizens employed by the United Nations, pt. 3, Sept. 24, 1953, pp. 496-497.

Ibid., p. 498.