The United States and The United Nations Secretariat: A Preliminary Appraisal

THE MCGIL
LAW JOURNAL

VOLUME 1

AUTUMN 1953

NUMBER 3

THE UNITED STATES

AND THE UNITED NATIONS SECRETARIAT:

A PRELIMINARY APPRAISAL*

Maxwell Cohen’

I.

INTRODUCTION

International organization is the fragile child of conflict and adjustment
between pressing inter-state needs and persisting ideas of sovereignty with
their exciting influence on nationalist feeling. Indeed, nationalism –
and
“culturism” –
today continue as vital, irrepressible and often explosive
social forces at the very moment when states are learning with increasing
facility to manage their many common international concerns within ever-
widening and authoritative institutions.’ For almost everywhere
in con-
temporary inter-state relations the operations of international organizations
and their staffs have become a familiar experience. 2 From the long-accepted

*This paper is restricted to a study of the principal matters presently in dispute
between the United States and the Secretary-General of the United Nations. It will
provide an introduction to the larger question.of the role and independence of the inter-
national secretariat that is to be examined by the writer in a later study.

fProfessor of Law, McGill University; sometime Special Assistant to the Director-

General of the United Nations Technical Assistance Administration, 1951-52.

LEvi, WORLD ORGANIZATION (1951) 23-27. POTTER, AN INTRODUCTION To THE STUDY
OF INTERNATIONAL ORGANIZATION (1948, 5th ed.) 20-21. For a summary of the activities
of the great variety of public international organizations in operation today see, for
example, (1952) Vol. VI International Organization (World Peace Foundation). The
documentation of the United Nations and its various organs alone is both impressive
and oppressive. For a comprehensive list of public and private international organizations,
committees, etc., see the 1952 Index, Vol. VI, International Organization, prepared by
Lis V. Thomsen.

2 Hammell and Others, Sovereignty and International Cooperatio, in REPORT OF FORTY-

FIFTH CONFERENCE, INTERNATIONAL LAW AssocIATIoN, Lucerne 1952, pages 19-42.

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specialized functions of the Universal Postal Union and its predecessors
through the often too-dramatized activities of the United Nations in New York
and in the field, the line of supra-national civil service duties now reaches per-
haps its most authoritative present expression in the European Coal and Steel
Community. For out of ECSC come orders directly to the coal and steel
producers of its sovereign members, from a “legislature” with jurisdiction
to set prices and quotas, from an “executive” competent to supervise the
operation of the program and having direct access to the national courts of
member-states to compel local obedience on behalf of the Community.3

But it is one thing to create an international organization to serve the
common purposes of military allies or kindred political societies. It is quite
another to erect a system of universal institutions, with state security and
human welfare their principal objectives, to erect such institutions in an age
of great political tension and with a membership embracing almost all the
potential antagonists. Indeed, it is a saddening irony that the United Nations
should find itself attempting to do tasks today under conditions that even
the boldest political idealist in 1945 might never have had the temerity to
demand of it. For the United Nations as an institution, its members and its
staff, now face the difficult duty of developing some kind of new balance
between maintaining their symbolic, legal and administrative independence
while yielding gently to the pressures of the “cold war” –
at least in so far as
those pressures may require some concessions to the severe security-conscious-
ness of United States public opinion and government policy. Yet, the dispute
between the United States and the United Nations over personnel matters
is but a symptom of the larger malaise affecting most political and institutional
arrangements embracing the East and the West in our day. Viewed on another
plane, however, the success or failure that will mark the resolution of this
problem may affect the administrative atmosphere of the United Nations
as an independent international organization, perhaps for the duration of its
location in the United States.

inter-state projects

II. THE HISTORICAL DEVELOPMENT OF THE INTERNATIONAL SECRETARIAT
It is less than one hundred years since the first evidence emerges of modern
that would require
states joining in extra-national
personnel and authority to some extent independent of the geographic and
political sovereignty of the member states.4 Perhaps one of the earliest
3Green, Legal Aspects of the Schuinan Plan (1952) 5 Current Legal Problems 274.
See also, for example, the address of the Hon. L. B. Pearson, Secretary of State for
External Affairs on May 3, 1953 describing recent decision of the NATO Council affecting
(Dept. of External Affairs, Statements and
the military budgets of member states.
Speeches No. 53/20).

4There is a rich literature on the development of diplomatic immunities as well as on
the parallel problem of the status and immunities of International Organizations and their

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UNITED NATIONS SECRETARIAT

expressions of this process was to be found in the management of the Danube
and Rhine rivers. 5 But here the employees of the river Commissions were
nominated by their governments and their immunity from the local jurisdiction
of the riparian state was severely limited. Indeed, that modest “immunity”
was founded juridically on the concept of “neutrality”, the only concept that
seemed relevant and possible at the time since it was directed largely to
maintaining the neutrality of Commission personnel should war break out
among the signatories to the treaties establishing the Commissions.6

Of course there long had existed the practice and doctrine of immunities
and privileges for diplomatic officials and in a much more limited degree for
consular agents. But except for very special cases, and not going much beyond
the later part of the 18th Century, these immunities and privileges were rarely
in favor of nationals of the grantor state and thus had no effect upon the

staffs. See for example Kunz, Privileges and Immunities of International Organizations
(1947) 41 A.J.I.L., 828, Note 13, and citations there; Yuen-Li Liang, The Legal Status
of the United Nations in the United States (1948-49) Int. Law Quart. 577; Clive Parry,
International Government and Diplomatic Privilege (1947) Mod. Law Rev. 97; C. W.
Jenks, The Legal Personality of International Organizations (1945) 22 B.Y.I.L., 267,
Footnote 1; H. M. Wood, Legal Relations Between Individuals and A World Organiza-
tion of States (1944), 30 Transactions of the Grotius Society 141; L. Preuss, The
International Organization Immunities Act (1945) 40 A:J.I.L. 332; L. -Preuss, Diplomatic
Privileges and Immunities of Agents Invested with Functions of an International Interest
(1931) 25 A.J.I.L., 694; L. SECRETON, LES IMMUNITAS DIPLOmATIQUES DES REPRESEN-
(1928); 1.
TANTS DES ETATS MEMBRES ET DES AGENTS DE LA SOCIETJ DES NATIONS
Secreton, The Independence Granted to Agents of the International Community in Their
Relations with National Public Authorities (1935)
16 B.Y.I.L. 56; Sir Cecil Hearst,
Diplomatic Immunities – Modern Developments (1929) B.Y.I.L. 1; E. Schwelbe, The
Diplomatic Privileges (Extension Act 1944),
(1945) 8 Mod. Law Rev. 50; RANSHOFAN-
WERTHEIMER, THE INTERNATIONAL SECRETARIAT (1945); HILL, THE IMMUNITIES AND
PRIVILEDGES OF INTERNATIONAL OFFICIALS (1947)
; CORBETT, POST-WAR WOR, LDS (1942) ;
THE INTERNATIONAL SECRETARIAT OF THE FUTURE (1944), (Royal Institute of International
Affairs) ; W. R. Crocker, Some Notes on the United Nations Secretariat (1950)
IV,
International Organization 598; THE UNITED NATIONS SECRETARIAT (United Nations
Studies No. 4 [1951] Carnegie Endowment for International Peace); CROSSWELL, THE
PROTECTION OF INTERNATIONAL PERSONNEL ABROAD (1952).

5 CHAMBERLAIN, THE REGIME OF INTERNATI6NAL RIVERS: DANUBE AND RHINE (1923)
47 et seq.; HIGGINS & COLoMBOS, THE INTERNATIONAL LAW OF THE SEA (2nd ed. 1951),
159; For an interesting historical survey see the Judgment of the P.C.I.J. in Jurisdiction
of the European Commission of the Danube (1927) P.C.I.J. Ser. B., No. 14.

OArticle XXI of the Public Act of November 1st, 1865 (55 British State Papers 93)
reads as follows: “The works and establishments of all kinds created by the European
Commission of the Dambe . .. particularly the navigation cash office at Soulina . ..
shall enjoy the neutrality stipulated. by Article XI of the said Treaty, and shall be in
case of war equally respected by all the belligerents.

The benefit of this neutrality shall be extended . . . to the general

inspection of
navigation, to the administration of the Port of Soulina, to the staff of the navigation
cash office …
and lastly to the technical staff charged with the superintendence of the
works” (cited in Chamberlain, supra Note 5, 307).

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jurisdiction of the sovereign over his own citizens.7 In theory and practice,
therefore, immunities attaching to persons as against the state of their own
in the
nationality were little in evidence in the 19th -Century whether
area of multi-national organization, bi-lateral Commissions and Tribunals
and a fortiori in the traditional category’of diplomatic personnel.

Modern international organization, of which the Postal Union is one of
the earliest and best known examples, stems from the burgeoning commercial
and political intercourse that marked the nineteenth Century with its vast
increase in population, travel and trade.8 The need for agencies to service
such inter-state public functions as postal services and quasi-public needs
such as -moving transport across state frontiers, led to the proliferation of
public and private international unions in the last quarter of the Century.
But in all of these the information and consultative side was emphasised
while “legislative” and “executive” authority remained limited and in most
cases was not even contemplated. In a sense, however, the emergence of
these permanent bureaus represented one branch of the barely perceptible
organization of the modern international world into a kind of primitive
constitutional framework where the growing variety of conferences represented
the legislature, the rise of arbitration the judiciary, and international unions
and their bureaus, the executive. However, this analogy has a more structural
than substantive significance.

With the establishment of the League of Nations, the I.L.O. and the
Permanent Court of International Justice after World War I, the scale of
permanent international organization reached a new level of magnitude. It
was necessary to give effective legal status to the League and its servants
for their manifold international activities, and in particular for the relations of
staff with their own states when as international officials they were carrying out
the functions of the organization in such states. What evolved in the relations
of the League to Switzerland applied more or less similarly to the I.L.O.
and at the same time there was a parallel development in the relations of the
Permanent Court of International Justice to the Netherlands.0

Two main conceptions seem to have dominated these relationships. There
was, first, the belief that traditional diplomatic privileges and immunities
should attach to the highest officers of the organization with the less senior
immunity for official acts and
officials afforded more limited privileges –
various tax exemptions – while Swiss nationals had even more restricted
immunities from local jurisdiction, confined to official acts, freedom from

7 ADAIR, THE EXTERRITOR1ALITY OF AMBASSADORS IN THE SIXTEENTH AND SEVENTEENTH
CENTURIES (1929) 1-14. SATOW, A GuIDE TO DIPLOMATIC PRACTICE Vol. I (1922, 2nd ed.)
251-283.

INTERNATIONAL GOVERNMENT

(1948) 157-187, particularly 168-169 and

8 EAGLETON,

citations in note 17.

9HILL, op. cit. note 4, at 3-13.

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UNITED NATIONS SECRETARIAT

cantonal and municipal direct taxes on their League salaries, and military
training deferment. Second, the League itself soon achieved status as a kind
of quasi-international person having that quantum of juridicial personality
necessary for its activities, e.g., inviolability, the ownership of all forms of
property and capacity to deal freely with member governments. 10 The most
advanced statement of the privileges and immunities of international organ-
izations and their staffs in the inter-war years is to be found in the arrange-
ments entered into between the Government of Canada and the I.L.O. for
its temporary wartime location in Montreal.” Here the immunities favouring
Canadian nationals. in matters of taxation, military service, freedom from
local jurisdiction for official acts, etc., were no different than those afforded to
non-nationals while the higher category of diplomatic immunities was not
provided for. These arrangements suggest considerable progress beyond
the agreements that governed the relations between the League and Switzer-
land and mark the clear beginnings of the “functional” immunity concept for
all staff members.

The League –

I.L.O. experience was highly suggestive and some of the
major personnel lessons, of this first attempt at a universal security system,
were the following :12

1. There was a natural reluctance on the parts of a state playing host to
an international organization to extend to its own nationals “diplo-
matic” or even specifically restricted privileges and immunities from
local jurisdiction. This reluctance at first extended even to the posi-
tion of Dutch judges and higher officials of the Permanent Court in
their relations with the Netherlands.

2. The symbolic role of the head of the Secretariat, and ‘his principal
deputies or aides, rendered it desirable, certainly as a matter of
protocol and perhaps too as a matter of administrative, efficiency,
to afford such personnel diplomatic status vis-a-vis the host state.

3. There was need for greater specificity in stating the precise im-
munities and privileges to which other members of the Secretariat
might be entitled vis-a-vis the host state and member states in
matters of their subjection to any member state jurisdiction.

4. The status of the -Organization itself, as a legal person, needed a
more secure definition than had been provided for in the Covenant
10For the development and details of these provisions see The Modus Vivendi of 1921
and The Modus Vivendi of 1926, with the Swiss Federal Council, cited in HiLL op. cit.
at 121 and 138.

“P.C. 6283, Aug. 14. 1941.
12For a detailed examination of the practical results of immunities and privileges in
the League and the I.L.O., see RAxsia0FEN-WERTHEimER op. cit. 265-273; also HILL
op. cit. 96-100.

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and various agreements; while the day-to-day legal relations to the
host state of the Organization, its Headquarters and its property
would best be served -by detailed articulation in a bilateral convention.
5. The principal objective in defining the status of the Organization,
in providing “diplomatic” privileges for its senior personnel, as well
as other grades of immunities for the remainder of the staff, was
to give the -Organization the means to function in a truly international
manner –
in short to make it independent of control by the ‘host
state or by any -member state save for such control collectively
contemplated by the membership itself or necessary for the protection
of the reasonable administrative and police interests of the host state.
6. Finally throughout the whole period there was little or no abuse of
these exemptions from local jurisdiction by Swiss nationals or non-
nationals.

III. TE UNITED NATIONS SYSTEM

These experiences were borne in mind both by the draftsmen

in San
Francisco in 1945 and later by the Preparatory Commission. The articles in
the Charter, the Report of the Preparatory Commission 8 and the later
implementing international engagements went a good way toward clarify-
ing what had been general and uncertain in the League –
I.L.O. regime. An
examination of Article 7, and Articles 97, 100, 101, 104, 105 of the Charter
reveals how positive were the views of the signatories that the Secretary
General and his staff were to be independent of any “instructions” from
member governments, that the Secretariat was to be an organ of the U.N.
and that the U.N. was to ‘have all the necessary legal capacity for the “fulifil-
ments of its purposes” and was for these purposes to enjoy “privileges and
immunities in the territory of each of its members”; similarily, delegates of
its members and officials of the organization also were to enjoy privileges
and immunities necessary for the “independent exercise of their functions.’1 aa
In order however to have the largest measure of detailed agreement among
member-states as to the meaning of these general provisions, the General

13 REPORT OF THE PREPARATORY COMMISSION OF THE UNITED NATIONS

(U.N.
doe. PC/20) Chap. VII, App. A, particularily, paras. 3 and 7; see also Chap. VIII, The
Secretariat.
13 aArt. 7

(1946)

Art. 97

(1) There are established as the principal organs of the United Nations:
a General Assembly, a Security Council, an Economic and Social
Council, a Trusteeship Council, an International Court of Justice, and
a Secretariat
The Secretariat shall comprise a Secretary-General and such staff
as the Organization may require. The Secretary-General shall be
appointed by the General Assembly upon the recommendation of the
Security Council. He shall be the chief administrative officer of the
Organization.

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UNITED NATIONS SECRETARIAT

Assembly in 1946 adopted the Convention on Privileges and Immunities,14
reflecting the best thinking arising out of the League experience as well as
the presently anticipated needs for the even more varied operations of the
United Nations. The central features of the Convention –
only 38 states
so far have ratified it, not including the United States –
are the creation of
juridical status for the Organization, of diplomatic status only for the
Secretary-General and his Assistant Secretaries-General, while the remainder
of the staff were limited to specific functional immunities from local jurisdic-
tion,’5 These are confined to such matters as immunities for all official acts,
exemption from taxation, exemption from national service obligations and
immigration restrictions, foreign exchange benefits, repatriation facilities and

Art. 100 (1) In the performance of their duties the Secretary-General and the staff
shall not seek or receive instructions from any government or from
any other authority external to the Organization. They shall refrain
from any action which might reflect on their position as international
officials responsible only to the Organization.

(2) Each member of the United Nations undertakes to respect the ext-
clusively international character of the responsibilities of the Secretary-
General and the staff and not to seek to influence them in the dis-
charge of their responsibilities.

Art. 101 (1) The staff shall be appointed by the Secretary-General under regula-

tions established by the General Assembly.

(2) Appropriate staffs shall be permanently assigned to the Economic
and Social Council, the Trusteeship Council, and, as required, to other
organs of the United Nations. These staffs shall form a part of the
Secretariat.

(3) The paramount consideration in the employment of the staff and in
the determination of the conditions of service shall be the necessity
of securing the highest standards of efficiency, competence, and in-
tegrity. Due regard shall be paid to the importance of recruiting the
staff on as wide a geographical basis as possible.
The Organization shall enjoy in the territory of each of its Members
such legal capacity as may be necessary for the exercise of its functions
and the fulfillment of its purposes.

Art. 104

Art. 105 (1) The Organization shall enjoy in the territory of each of its Members
such privileges and immuhities as are necessary for the fulfillment
of its purposes.

(2) Representatives of the Members of the United Nations and officials
of the Organization shall similarly enjoy such privileges and immun-
ities as are necessary for the independent exercise of their functions in
connection with the Organization.

(3> The General Assembly may make recommendations with a view to
determining the details of the application of paragraphs 1 and 2 of this
Article or may propose conventions to the Members’of the United
Nations for this purpose.

24U.N. Treaty Ser. 15; see also HANDBOOK ON THE LEGAL STATUS, PRIVILEGES AND

IMMUNITIES OF THE UNITEn NATIONS, U.N. doc. ST/LEG/2.

15Articles I, V.

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customs privileges for household effects upon taking up residence in a member
country. Parallel provisions are provided for experts hired ad hoc to go
abroad on missions for the U.N.'” , while a U.N. “Laissez-Passer” was
established to facilitate official travel on behalf of the Organization. 17

What is significant about the Convention is that it makes no distinction
between nationals and non-nationals in their relations with member states
of their own nationality, and that it emphasizes limited functional immunities
rather than any generalized diplomatic privileges save for the Secretary-
these
General and
privileges and immunities may be waived by the Secretary-General for any
official or by the Security Council for the Secretary-General himself;1B
indeed the Convention is perfectly clear that the rules were designed to assist
the Organization rather than to provide private exceptions to proper local
jurisdiction. 19

the Assistant Secretaries-General. Moreover, all of

In addition to the Convention, agreements have been signed by the United
Nations and most of the Specialized Agencies with their respective host
states governing the status of headquarters bites and their operation in
relation to the host state, its national and local governments. The U.N.-
U.S. Headquarters Agreement of 194720 provides for the “inviolability” of the
property and the archives of the United Nations subject to waiver by the
Secretary-General permitting access by municipal officials whenever in his
opinion it is necessary. Freedom of access to all those travelling officially to
the United Nations from Governments or accredited organizations is also
agreed to.21 In other respects generally local law and police rules apply, for the
intention of these headquarter agreements has been to ” . . . express mainly
the rules of customary international law applicable to the premises of diplomatic
missions. ’22 In short what was doubtful with respect to the status of the
League –
requiring doctrinal development and ad hoc agreements as the
League’s position and needs were crystallized –
now has been rooted firmly
in the Convention and in these bilateral agreements with host states as well
as made broadly applicable to the U.N. membership as a whole through the
general and positive language of Articles 104 and 105 of the Charter.

16Article VI.
1TArticle VII.
‘SArticle V, Sec. 20.
19Article I, Sec. 20; Article VI Sec. 23.
2011-12 U.N. Treaty Series 11; also GOODRICH & HAMBRO, CHARTR OF THE UNITED
NATIONS, COMMENTARY AND DOCUMENTS
(2nd ed. 1949) 640. Cf. also Headquarters
Agreement, Canada and the International Civil Aviation Organization, 1951, Can. Treaty
Series, No. 7.

21Secs. 11, 13.
22Brandon, The Legal Status of the Premises of the United Nations (1951) 28 B.Y.I.L.,

90 fi 113.

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UNITED NATIONS SECRETARIAT

indicated

the

inhibitions in

With its very limited experience in playing host to an international organ-
ization the United States may be said to have been quite reasonable in its
agreement on the Headquarters’ site –
although its alleged “reservation”
providing that security reasons should permit the barring of entry to the
the U.S.
U.S. and to the Headquarters,
national view. On the other hand, the U.S. has not ratified the Convention
on Privileges and Immunities and the administration of this aspect of its
relations with international organizations and their staffs has depended on the
International Organizations Immunities Act of 1945.23 Here the U.S. had
denied any special status to its own nationals and applied the conception of
persona-non-grata to international staff while paradoxically the Act at the
same time rejects the relevance of “diplomatic” privileges and immunities to
international organizations and their personnel. The net effect of the refusal
of the United States to accede to the Convention has been to discriminate
against its own nationals in theory although in matters of taxation and
military service reasonable working arrangements seem to have been reached
to prevent discriminatory injustice against American nationals. Nevertheless,
the climate of American opinion from the beginning of the presence of the
U.N. in the ‘United States has been decidedly cool toward the growth of any
large group of persons having a special status and, particularly, to refuse such
status to American nationals. And it is this climate together with the additional
tensions of the “cold war” and the special character of Federal party politics
and governmental machinary that has led in a large measure to the present
dispute over personnel between the United Nations and the-United States.

IV.

SPECIFIC PROBLEMS ARISING OUT OF U.S. VIEWS AND POLICIES

While some latent resistance in United States opinion to the special –

if
by no means dramatically different –
legal position required for international
personnel could have been forseen once the United Nations located in New
York, these problems of relative political novelty for the U.S. likely would have
been resolved over the years without too much difficulty. No one could
have anticipated, however, the extent to which after 194624 the deterior-
ation of the relations between the Soviet Union and the West would have
affected the development of the Secretariat. The Canadian espionage investig-
ations of 1945-46 were the curtain-raiser to a series of North American exper-
iences that found U.S. public opinion not unexpectedly sensitive to direct
subversion and espionage as well as to the more elusive machinations of the
Communist Party in the U.S. and its many “front” and allied organizations 2 5

23 59 Stats. U.S. 669.
24Cohen, Espionage and Immunity –
(1948) 25 B.Y.I.L. 404.

Some Recent Problems and Developments.

25For the most recent summary of these alleged activities within the- U.S. Government
service see UNANIoUs REPORT OF INTERNAL SECURITY SUB-CoMMITrEE OF SENATE

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Meanwhile a very rapid U.N. recruitment program in New York –

almost
three thousand employees within two years – was made necessary by the
exigencies of organization.26 On the soundest of grounds the United States
from 1946 to 1948 exercised little or no direct influence on Secretariat
personnel policies except of course, for the early employment from among
U.S. nominees of one or two of the most senior officials of the Organiz-
ation. 27 In general, the United States was prepared to follow the principle
that seemed to have been accepted in San Francisco and by the Prepar-
atory Commission that the Secretary-General –
except in the matter of
the Assistant Secretaries General – was to be given the widest latitude
in recruiting staff of competence and
to the
general direction of the Charter that “reasonable geographic distribution” be
sought wherever possible. The combined effect therefore, of the Charter, the
Headquarters Agreement, the International Organization Immunities Act
and this early American policy of non-interference, was to assist substantially
in creating the requisite conditions for
–
establishing an independent Secretariat in New York and abroad, intern-
ationally-minded and “loyal” to the Secretary-General.

despite the limitations of the Act –

integrity,28 subject only

In addition, the United States had to accustom itself to those provisions
of the Headquarters Agreement which afforded to persons traveling to the
United Nations on official business due access to the Headquarters and, there-
fore, admission to the United States. This covered not only U.N. officers and
diplomatic personnel but also representatives of Accredited Non-governmental
Organizations visiting the U.N. on behalf of their principals as well as all
other persons officially invited by the United Nations. Finally, the international
operations of the U.N. and the Laissez-Passer provisions of the Convention
contemplated
for U.N. officials,
strictly, it seems, without requiring passports from the state of their own
nationality. But since the U.S. was not a party to the Convention passports
were applied for by American nationals who were officials of the U.N., and,
until the sharp change in the political situation, few difficulties were en-
countered in obtaining them in the first three or four years of U.N. operations
in the United States.

travel arrangements

reasonably simple

JUDICIARY COmmITrEE: Aug. 24, 1953, republished in U.S. News and World Report, Aug.
28, 1953, 16 et. seq.

2 6 REPORT OF THE SECRETARY GENERAL OF PERSONNEL POLICY,

(Hereinafter called

REPORT) U.N. doc. A/2364, Para. 30.

2 7ScHWEBEL, THE SECRETARY-GENERAL OF THE UNITED NATIONS (1952) 58.
28Secretary-General’s Note to Correspondents No. 582, 2 Jan. 1953, p. 2 –

“At that
time in response to enquiries by the Secretary-General, the Secretary of State (Mr. James
F. Byrnes) said that 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.”

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UNITED NATIONS SECRETARIAT

When, however, the pblitical temperature in the U.S. began to reflect the
seriousness of international tensions and was aggravated particularly by the
ascerbities of party politics in this period, the interest of the U.S. in municipally
located subversion and espionage was feverishly heightened. By 194849 the
State Department already was informing the Secretary-General in a very
limited and not too satisfactory form29 that certain persons on the staff
of the United Nations were past, present or potential subversives and thus
were a possible threat to the security interests of the U.S.. By late 1952,
accusations by various agencies of the U.S. Government, particularly Grand
Juries and Senate Investigating Committees, had led to a number of specific
problems for the Secretary-General. These may be listed as follows:

1. Certain American nationals among U.N. personnel were being
charged by these agencies with past, present or potential “sub-
versive” and/or “espionage” activities.

2. A number of United States nationals employed by the Secretariat
had refused to testify before a Federal Grand Jury and/or a U.S.
Senate Investigating Committee on the grounds that their answers
might tend to incriminate them. They claimed the privilege of the
Fifth Amendment of the United States Constitution which provides
for protection against self-incrimination.29a

3. The State Department in a number of cases already had refused to
give passports to American nationals in the Secretariat suspected of
subversive activities and these nationals, therefore, had been unable
to travel on the business of the U.N. –
the U.S. not having acceded
to the Convention with its “Laissez-Passer” provisions.

4. The U.S. Government had forecast its refusal to permit entrance into
the United States of those non-nationals representing Non-Govern-
mental Organizations, and travelling to the U.N. on official business,
whose admission would present a threat to United States security.

5. There was some suggestion that non-nationals of the Secretariat
suspected of subversive activities might be subpoened before ‘U.S.
investigating agencies and also that such personnel, should they leave
the country on U.N. business, might not be granted re-admission to
the U.S. to resume their U.N. employment.

6. There was the possibility of Congressional legislation to render it a
criminal offence for any U.S. national to take employment with an
international agency unless prior clearance had been obtained from
the U.S. Government.

29See Note 582 supra, page 2; REPORT para. 46.
29a Art. V.

“No person . .
witness against himself .
1927, Cap. 59, Sec. 5.

. shall be compelled in any criminal case to be a
. “; cf. Canada Evidence Act, R.S.C.

.

McGILL LAW JOURNAL

[Vol. 1

There is no need to emphasize here the concern felt in 1952 in the United
States and in the Secretariat about these allegations and procedures and the
awareness of many members of the U.N. that these events were tending to
threaten the morale, the independence and the good name of the Secretariat.
A point had been reached in the relations of the United States to U.N.
personnel policies that required a most careful examination of the legal,
political and administrative issues in order to reconcile those Charter principles
and Staff Regulations founding the Secretariat’s independence and respons-
ibility with the claims of the U.S. to take all measures necessary for the
protection of its security.

V. THE JURISTS’ OPINION AND U.N. POLICY

Faced with this growing challenge to his independent judgment as the
chief personnel officer of the U.N., the Secretary-General appointed three
lawyers, –
to
serve as a Commission of Jurists and to advise him on the more immediately
controversial questions particularly those relating to the management of
allegedly supervise personnel.

from the United States, the United Kingdom and Belgium –

The Commissioners’ Opinion3” of November 1952 is now one of the more
celebrated documents of U.N. legal history whatever may be its intrinsic
merits as legal analysis. It gave rise at once to much controversy and also
to some fears that if all of its recommendations Vere followed they might
limit considerably the independence of the Secretariat not only in its relations
with the U.S. but vis-a-vis other member-states as well. Nevertheless the
Opinion influenced substantially the Secretary-General’s Report to the General
Assembly on Personnel Policy submitted in March, 1953.31

There is no need now to examine the language of the Opinion in full detail,
but some extensive references are necessary to its specific findings, to the
quality of its reasoning and research, to the influence it has excercised on
subsequent Secretariat policy, General Assembly opinion, and United States
views, and finally to its effect on the position of those U.S. nationals later
dismissed by the Secretary-General, –
including the method of their dismissal
and the decisions of the Administrative Tribunal in reviewing those dismissals.

Five questions were put to the Commission:

First: Whether it was compatible with Secretariat employment for
a staff member to refuse to answer questions put to him by an invest-
igatory organ of his government. While this question was phrased general-
ly, and appeared to affect all member-states, it clearly seemed designed
to deal with those U.S. nationals seeking the benefits of the Fifth Amend-

A/INF/51.

3 0 0PINION OF COMMISSION OF JURISTS (hereinafter called JURIsTs’ OPINION) U.N. doc.
31Supra note 26.

1953]

UNITED NATIONS SECRETARIAT

ment in their appearances before a Grand Jury or U.S. Senate Com-
mittee. The Commission answered firmly in the negative.

Second: What should the Secretary-General do about a refusal by
the U.S. Government to issue a passport to a staff member for official
travel. The Commission’s answer was not too clear -but seemed to suggest
that such a refusal should be treated as an allegation of past, present or
potential subversive activities and that the Secretary-General should be
put upon his inquiry as to the fitness of the employee to remain an inter-
national civil servant.

Third: What action should the Secretary-General take when an of-
ficial source of the U.S. Government informs the Secretary-General that a
staff member of U.S. citizenship is “disloyal” to the U.S. The Commission
advised that the Secretary-General should make the fullest inquiry but he
must have reasonable grounds for believing the allegations before the
employee can be discharged. This standard was also to apply, it seems,
to the passport cases.

Fourth: Should the Secretary-General make available the archives
of the Organization to U.S. investigating agencies or authorize staff
members to reply to questions requiring confidential information about
their official arts. To this the Commission gave a clear negative.3 1 a

Fifth: Does the Secretary-General ‘have authority to dismiss holders
of permanent appointments on evidence of “subversive” activities against
their country or a refusal to deny such activities. The Commission replied
that the Secretary-General has authority to disrhiss under the present
Staff Rules and Regulations.3 2

Apart from these specific replies, the Jurists attempted also to provide more
generalized guides to a personnel policy. It is not unfair to say, however,
that it is very difficult to know what parts of the Opinion are merely obiter
dicta, and what are recommendations clearly intended to be taken as principles
of a judgement –
in short, as ratio decidendi. Thus, the following additional

maU.S. v. Keeney (U.S. District Court, District of Columbia, 17 March 1953)

re-
ported and discussed in (1953) 2 Int. Law and Comp. Law Quart. 482-83; Here the court
held that information relating to a U.S. national’s application to the U.N. for employment,
that includes references and recommendations before such employee is actually hired,
such information is not “official” U.N. information and therefore is not immune to dis-
closure to a United States Senate Committee; and, that in any case, U.S. public law 291
of the 79th Congress, Sec. 288e, requires any persons entitled to such partial immunity for
their official acts etc. to be notified to and accepted by the Secretary of State and that this
was not done in the present case. The Court does not appear, however, to have discussed
how far under the United States Constitution such a treaty as the Headquarters Agree-
ment over-rides a Congressional enactment.

32This answer required a consideration of the STAFF RULES AND REGULATION$, U.N.

doc. ST/AFS/SGB/94 (1952), hereinafter referred to as STAFF RuLEs.

McGILL LAW JOURNAL

[Vol. I

propositions are to be found in the Opinion, if not directly, at least in the
linking of various statements into some kind of cohesive pattern of decision:

1. There can be no conflict of “loyalty” between the allegiance owed
-by a national to his own state and the responsibility of a staff employee
for his duties as an officer of the U.N. (Opinion, 17). Obviously the
Commission must have intended the words “loyalty” and “conflict”
in some special sense. There are -bound to be many occasions when
staff members conceivably might be making decisions or recommenda-
tions that “conflict” with the immediate political or economic policies
of the states of their nationality. The Technical Assistance program,
the field operations of truce teams and similar examples are highly
suggestive of situations where there may be a ‘United Nations interest
quite distinct and at variance from a given national interest.

2. Any conviction of a staff member for disloyal activities by the courts
of his own country or the courts of the country where he has residence,
should bar such person from U.N. employment. (Opinion, 22). Here
the Commission faced the difficulty of using the term “disloyal” to
apply to the activities of non-nationals vis-a-vis the state of their
residence and in a subsequent Corrigendum substituted “subversive”
for “disloyal”, declaring however, that the meaning was more or
less the same. Here are the beginnings of a confusion to be seen in
many passages in the Opinion, not only the semantic difficulty with
terms such as “disloyal” and “subversive”, but a basic ambiguity as
to the intention of the Commission. For it is never made absolutely
clear in these general propositions whether the Commission wished
to deal only with the specific U.S. situation or instead with allegations
of “disloyalty” or “subversion” from any member-state.

3. Allegations to the Secretary-General from any source that an applicant
or an employee is engaged or “is likely to be engaged” in subversive
activity in the host country should put the Secretary-General on
enquiry at once and if he has “reasonable grounds” for believing the
charges, the applicant or staff member should be denied employment
or discharged (Opinion, 28-29). This is a significant recommendation
comprising both useful elements and less desirable ones. There can be
little doubt that this duty of the Secretary-General to concern himself
with allegation from any source may require investigations based on
mischievous gossip. However, the onus of proof remains with the
Secretary-General since he must be satisfied by reasonable grounds.
This same standard is to apply where allegations are made by the
organ of any member-state or where there has been an admission
before a U.S. proceeding that a national or non-national, in the past
has been a member of a “subversive” organization. (Opinion, 29-31).

1953]

UNITED NATIONS SECRETARIAT

The Opinion is markedly deficient in providing definitions for “subvers-
ive” or in giving some guidance with respect to facts suggesting that a
person is “likely to be engaged” in subversive activities. Without such
guidance these are dangerously flexible -phrases and a strong self-
disciplining procedure in the assessment of evidence would be needed
to execute these rules with justice. Indeed, these propositions raise
what could become one of the most difficult of all questions in the
relations of the United States to the U.N. namely, whose standard will
determine the quantum of evidence as to subversiveness that may be
sufficient to justify a decision against the employability of an accused.
4. Present active membership in the Communist Party of the U.S. is
although past
incompatible with continued U.N. employment –
membership will be a matter for the discretion of, and require
further inquiries by, the Secretary-General. (Opinion, 31-32). Con-
sidering the climate of U.S. opinion and the decisions of the U.S.
Supreme Court upholding the Smith Act,3- – which virtually outlaws
Communist activity if not the Party itself, –
this proposition would
seem to be one that the- Secretary-General must accept. But it is not
easy to apply it .to non-Americans who may be members of a Com-
munist Party in other non-Communist states, e.g. France and India.
Would this rule permit the transference of an employee to a country
where Communist party membership may not be objectionable, e.g.
Guatemala? In any case whatever the theoretical variations, it would
be very indiscreet today for the Secretary-General to retain in em-
ployment at home or abroad a member of the U.S. Communist party
who is a U.S. national.

5. The Opinion did not believe that the appellate procedures provided by
for

the Joint Appeals Board and the Administrative Tribunal3 ‘ –

3 3 For a summary discussion of the Supreme Court of the United States decision on the

Smith case see REPoRT, Annex VI, paras. 4-6.

34 Staff organization as well as diciplinary and appellate procedures are extensively
provided for, and developed, in the U.N. Secretariat. See STAFF RuLEs, supra note 32,
particularily the following:

Reg. 1.4: “Members of the Secretariat shall conduct themselves at all times in a manner
befitting their status as international civil servants. They shall not engage in any activity
that is incompatible with the proper discharge of their duties with the United Nations.
They shall avoid any action and in particular any kind of public pronouncement which
may adversely reflect on their status. While they are not expected to give up their
national sentiments or their political and religious convictions, they shall at all times bear
in mind the reserve and tact incumbent upon them by reason of their international status.”
Reg. 8.1 and Rule 108.1; provides for the establishment of a Staff Council (presumably
elected by the Staff Association) to insure “Continuous Contact between the Staff and
The Secretary-General.”

Reg. 8.2 and Rule 108.2: provide for a Joint Advisory Committee composed of Staff

McGILL LAW JOURNAL

[N7o1. I

the review of staff diciplinary or contractual questions – were proper
for these “subversive” dismissals and appeals. It recommended instead
the creation of an Advisory Panel from senior Secretariat personnel,
with an outside independent chairman, to consider allegations from the
U.S. Government charging subversion or espionage. (Opinion, 32-34).
The Jurists were moved by a practical concern for the reluctance of
governments to have security information travel the ordinary appellate
route in staff appeals. It may be suggested, however, that the Jurists
were insufficiently aware of the prestige of the Administrative Tribunal
or the strict rules which govern the powers of the Secretary-General
with respect to dismissals.35 Indeed, the recent decisions of the Admin-
istrative Tribunal ordering compensation to be paid to seven dismissed
U.S. nationals, and reinstatement in the case of four others, is a re-
minder of how clearly within the framework of the Staff Rules and
Regulations must the Secretary-General act particularily in the case of
employees holding permanent contracts.30 It would be surprising to
find the General Assembly yielding to the recently declared intentions
of the U.S. so to amend the Statute of the Tribunal as to prevent appell-

Council and Secretary-General nominees, to advise the Secretary-General on personnel
and staff welfare policies.

Reg. 10.1, 10.2 and Rule 110.1: provide for the powers of the Secretary-General to
summarily dismiss for “serious misconduct” and for the creation of a Joint Disciplinary
Committee representing the Staff and the Secretary-General to advise him on disciplinary
cases, at his request.

Reg. 11.1 and Rule 111.1 provide for appellate machinery within the Secretariat to
deal with administrative decisions concerning terms of appointment and disciplinary
action. A Joint Appeal Board comprising Secretary-General and Staff nominees hears
appeals in these matters.

Reg. 11.2. The U.N. Administrative Tribunal can hear appeals from Staff members
alleging non-observance of terms of appointment, including all pertinent regulations and
rules.

See also ADmINISTRATIVE TRIBUNAL STATUTE AND RULES [U.N. doc. A/CN. 5/2
(IV) November 24, 1949]. Article 3 gives it
General Assembly, Resolution 351
jurisdiction over all employment contract disputes, including the interpretation of relevant
Rules and Regulations; but under Article 7 applications are to be heard only after
except in those
submission to the Joint Appeals Board and disposal of the case by it –
cases where the Secretary-General and the applicant agree to go directly to the Tribunal
or where the Secretary-General has not acted on a favourable decision, or where the
decision is unfavourable but the application is not regarded as frivolous.

35Rule 9.1, provides other grounds for termination of permanent appointments (aboli-
tion of post, unsatisfactory services, health) of fixed term appointments, (abolition of
post, expiration of term, health, unsatisfactory services) and for the termination of all
other staff members (but presumably not including permanent appointments) where such
action “is in the interest of the United Nations.”

36See Judgments of the Administrative Tribunal, U.N. docs. AT/DEC/18 to AT/
cases No. 26-46 inclusive; for example, case No. 37 (Joel Gordon) where
DEC/38 –
the Administrative Tribunal, as in other similar cases, denied the right i f the Secretary-

1953]

UNITED NATIONS SECRETARIAT

ate review and the award of compensation in these “subversive”
cases.3 7 However proper the abolition of such loyalty review appeals
may have been with respect to the administration of the U.S. federal
civil service, it is not likely to commend itself as a policy to the
General Assembly. Indeed, board of review procedures in loyalty
proceedings in the U.S. operated from 1947 to 1953 when they were
replaced recently with Department review and authority to dismiss. 38
One last word about the ‘Opinion as a whole. It is not unfair to suggest that
the Opinion reflects the great haste with which it was drafted –
something
and the seeming unfamiliarty of the members of the
under three weeks –
international law as well as with the specific
Commission with general
problems of an international secretariat. While the Opinion may have been
designed for non-technical readers, it is almost too deliberately devoid of
scholarship, and its confusion of specific. and general findings, its uncertainty
in use of key terminology such as “loyalty” and “subversion” and its ambival-
ence in-not being quite certain whether all of its generalizations were to apply
to the U.S. only or to all member and host countries, must be regarded as
serious weaknesses in a document that was designed to give confidence and
guidance at a crucial moment in the life of the Secretariat.

For the Secretary-General, however, the opinion became an influential
source in determining his immediate personnel policies and for reporting upon
them to the Seventh Session of the General Assembly. In his Report the
Secretary-General emphasized his own authority and the fundamental need for

General, under the terms of Reg. 10.2 of the STAFF RULES, to discharge those holding
permanent contracts because they claimed the privilege of the Fifth Amendment. The
Tribunal said (pages 8-9 of AT/DC/29) :

“9. In the present case, the Applicant invoked the privilege provided in the
constitution of his country. This step did not give rise to legal procedures against the
Applicant. 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.
The legal situation arising from recourse to the Fifth Amendment was so obscure
to the Secretary-General himself that he considered it desirable to seek clarification
from a Commission of Jurists. These cases were later discussd by the General As
sembly who reached no decision. Subsequently these conclusions were partially set
aside by the Secretary-General himself.
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.
Whatever view may be held as to the conduct of the Applicant, that conduct
could not be described as serious misconduct which alone under article 10.2 of the
in
Staff Regulations and of the pertinent Rules justifies
dismissing a staff member summarily without the safeguard afforded by the disciplin-
ary procedure.
In these circumstances, the decision to terminate the Applicant’s employment
since it cannot be based upon the provisions of the Staff Regulations and Rules must
be declared illegal.”
37New York Times, 27 Sept. 1953 (A. M. Rosenthal) Section 1. Page 1, 37; also

the Secretary-General

10.

Section 4, pages 1-2.

38 New York Times, 28 April 1953, pages 1, 20.

McGILL LAW JOURNAL

[Vol. 1

to obtain detailed

an independent international secretariat and, indeed, reminded the members
how squarely his conception was founded on the Charter itself as well as on the
Staff Rules adopted by the Assembly. Moreover, he described the various
attempts
information from the U.S. about allegedly
subversive personnel and how difficult it was until recently to receive anything
but superficial reports from the State Department. The Secretary-General
was prepared to accept the Jurists’ Opinion at least with respect to dismissing
all employees who were convicted of espionage or subversion or who
claimed the privilege of the Fifth Amendment. He was willing to suspend
permanent employees who claimed the privilege but giving them an opportunity
later to testify or face dismissal.39 As to the mere allegations, the Secretary-
General was adamant that he would need to have reasonable grounds to justify
dismissal and such grounds would have to amount to a preponderance of
ezidence: in short, the onus would remain here with the Secretary-General. 40
Moreover, in view of the recommendations of the Jurists, and the nature
of the confidential information to be studied, an Advisory Panel had been
established, with recommending functions only, to examine the evidence
submitted by the U.S. and make suggestions to the Secretary-General. 41
Finally, the Secretary-General declared that the U.S. had not yet acceeded
to the Convention on Privileges and Immunities and that the International
Organizations Immunities Act did not afford diplomatic status for the
Secretary-General and the Assistant Secretaries-General, nor provision for
U.S. nationals in matters of taxation, national service and other benefits;
while at the same time he urged that member states ought not to employ their
control over passports to limit the employability of their nationals or the
movement of Secretariat officials.4

The Report was a kind of half-way house between certain of the severe
views of the Jurists –
particularly the dismissal of employees holding perma-
nent contracts in the Fifth Amendment cases –
and those whose stand would
deny any effect upon Secretariat policy to U.S. municipal legal procedures. But
the Report left unclear the definition and standards the Secretary-General
would apply in determining the meaning of “subversive” or “likely to be sub-
versive;” the method for resolving disputes between the U.S. and the Secret-
ary-General as to the adequacy or significance of information gurnished by the
U. S.; the future of the Administrative Tribunal and the Secretary-General’s
policy toward the Tribunal in the treatment of subversive cases; and finally, the
relevance of these experiences with the U.S. to possible parrallel problems aris-

3 9This authority has now been denied to him by the Administrative Tribunal as not
coming within the powers conferred by the STAFF RULES. See Case No. 37, supra
Note 36.

4 0REPORT, paras. 97-98.
4 1REPoRT, paras. 104-105.
4 2 REPoRT, paras. 110-115.

1953]

UNITED NATIONS SECRETARIAT

ing with other member and host states. And since the Secretary-General at this
writing has not reported to the Eighth Session of the General Assembly with
respect to personnel problems, as required by Resolution 708 (VII), his recent
experiences with the U.S. Government, the additional question of N.G.O. re-
presentatives and the views of the new Secretary-General on personnel policy
in gneral and the subversive question in particular, all remain to be disclosed.
Meanwhile, early in 1953 the U.S. Government took measures to police
more directly American employees and applicants for employment with
international organizations by embracing them generally within the framework
of the federal loyalty procedure program. The “loyalty” clearances established
in President Truman’s Executive Order of January 9th, 1953, 43 sought there-
fore to meet the Secretary-General’s demands for more adequate information
about alleged subversives or spies among U.S. nationals in the Secretariat or
seeking employment. This Order was subsequently amended in some of its
most important provisions when on 27 April, 1953, 44 federal employee loyalty
procedures were Wholly revised. Later, on 27 May 1953, an International
Organizations Employees Loyalty Board was established, by Executive Order,
within the Civil Service Commission to deal with U.S. nationals employed or
being considered for employment on the internationally recruited staff of the
United Nations for a period exceeding ninety days.45 All such personnel were
to be covered by a “full field investigation” conducted by the Federal Bureau
of Investigation. In determining the loyalty status of the person concerned,
the Board wds to be guided by the following standards: ” .
. . whether or not
on all the evidence there is a reasonable doubt as to the loyalty of the person
involved to the Government of the United States. ’46 Finally the Secretary-
General was to receive information from the Secretary of State” .
in as
much detail as the Board determines that security consideration permit… ,,40a
While the Secretary-General has not yet reported on the operations of
his own Advisory Panel, on the other procedures as outlined or on the
quality of the evidence now being received from the U.S. Government, a
number of assumption perhaps can be Tnade in anticipation of his’ statement,
It is clear that there is a deep cleavage between the security risk standard
in both Executive Orders and the “preponderance of evidence” standard,
in favour of employee, in the Secretary-General’s Report. It would be surpris-
ing if some clash of opinion both with respect to the quantum and value of
evidence does not arise, polarized by these conflicting yardsticks. It will also be
surprising if the Advisory Panel does not have some difficulty in attempting to

.

.

43Executive Order No. 10422.
44Executive Order No. 10450.
45These Provisions are set out in a “Release by the Press Secretary to the President”,

June 2, 1953.

46This standard is the same as that set out in Executive Order No. 10422.
4 6aSupra note 45, clause 5 as amended.

McGILL LAW JOURNAL

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perform fair and confidential review services for the Secretary-General
without at the same time developing reasonably formal hearing procedures
for accused personnel. Moreover, since the Secretary-General is not bound
to take the Panel’s advice, conflicts between the developing standards of the
Panel and the Secretary-General are not impossible –
if the Panel takes its
duties seriously and develops some inevitable formality in its inquiries. Then
too, there are the recent decisions of the Administrative Tribunal denying
the Secretary-General Lhe right under the Staff Regulations and Rules to
dismiss personnel holding permanent contracts and declaring that they do
not commit a breach of the Regulations, by taking advantage of the Fifth
Amendment of the U.S. Constitution. Not only do these decisions limit
the freedom of the Secretary-General to discharge without compensation
in such cases, but they have already provided a new source of acrimonious
public debate in the U.S. Mr. Henry Cabot Lodge, the Permanent Delegate
of the U. S., has warned that he will seek General Assembly reversal
of such judgments, possible amendments to Staff Regulations and certainly
U.S. membership on the Administrative Tribunal when the next vacancies
occur.47 The juridical basis for expecting the General Assembly to consider
itself authorized to reverse the Tribunal’s judgments would seem to be con-
siderably in doubt for generalized legal reasons
indeed not unlike the
principles underlying the “ex post facto” and “Bill of Attainder” clauses of
the U.S. Constitution. 48

Finally, the Secretary-General’s policy had already led in 1952 to permission
for the Federal Bureau of Investigation to make its enquiries on the Head-
quarter’s premises and to send questionnaires to all U.S. nationals on the
international staff of the Secretariat, whether located in the U.S. or abroad.
This procedure was defended by Mr. Lie, the first Secretary-General, in his
major statement to the Assembly on personnel policies last March.49 The
principal reason advanced was that both the interviews and the fingerprinting
at Headquarters were not per se a violation of the Headquarters’ Agreement;
indeed, they were a generally convenient arrangement to expedite clearances
by the F.B.I. of scores of American nationals who felt that the sooner they
were “cleared” the better. There is some evidence however, that the Swiss
Government has not been as favourably disposed to such administrative
simplicity and has disliked permitting the circulation of the questionnaire

47Supra note 37; also N.Y. Times Oct. 2, 1953, page 6.
48U.S. Const. Art. I, Sec. 9; also the STAFF RULES REG. 12.1 provide: “These
regulations may be supplemented or amended by the General Assembly, without prejudice
to the acquired rights of staff members.”

49 See Statement by Mr. Trygve Lie on Personnel Policy, before the General Assembly
on 10 March 1953, Press Release S/G 281, 16-7; (1953) XIV United Nations Bulletin,
No. 6. (March 15, 1953).

1953]

UNITED NATIONS SECRETARIAT

in Geneva, while UNESCO apparently refused to circulate the questionnaire
in its Paris Headquarters among U.S. nationals on the staff.50

As this is being written the General Assembly is sitting in its Eighth
Session in New York. On its agenda will be found the pending report on
personnel policies of the new Secretary-General. It expects also to hear the
comments on this report of the Advisory Committee on Administrative and
Budgetary Questions. Doubtless serious discussion will take place in the
Fifth Committee as well as in the Plenary sessions. For the General As-
sembly probably has not forgotten how deeply disturbed many delegations
appeared to be in the Plenary debates on Mr. Lie’s report to the Seventh
Session. Every delegation statement recognized the conflicting claims of
Secretariat independence on the one hand and host country security on the
other. Perhaps one of the strongest criticism of Mr. Lie’s policies were made
by the French Delegation. 5′ It emphasized the absence of truly secret inform-
ation in the Secretariat and that much of the alarm was “being rung for a
ghost.” Indeed, it is worth summarizing the main points in the French
analysis because it also supports, in part, the U.S. view on prior clearances of
nationals who are employees of an international organization:

1. Every member state, not only host countries, has the right to decide
under what conditions it authorizes its nationals to become members
of the U.N. staff. But such provisions cannot directly limit the
to employ. (The statement did not
Secretary-General’s freedom
attempt to reconcile the administrative and legal impasse resulting
from this position.)

2. Every member state is entitled to expect that the Secretary-General
will not retain in service a staff member found to be engaged in some
subversive activity against that state’s security.

50 See (1953) VII International Organization, 422-423, for a summary of the UNESCO

proceedings.

51See PROVISIONAL VERBATIm RECORD OF THE FOUR HUNDRED AND EIGHTIETH MEETING,
30 March 1953, U.N. doc. A/PV 418, pages 28-52. The Plenary discussions contain very
important statements on delegation views. Mr. Lodge for the U.S. supported
the
SECRETARY-GENERAL’S REPORT and the JURIST’S OPINION, particularly with respect to
membership in the Communist Party, the Fifth Amendment cases and where the employee’s
record suggest potential (“likely to engage”) subversive activity; See U.N. doc. A/PV
416, page 13. See also the support given by Mr. Leslie Munro of the New Zealand
Delegation for the Jurist’s view that any “subversive” activity against a host state is
“serious misconduct” and warrants dismissal under Regs. 1.4, and 10.2 of the STAFF
RULES: See U.N. doe. A/PV. 416, 19-20. The Canadian statement by Mr. Paul Martin
was a very careful formulation confined largely to emphasizing the need for Secretariat
independence, declaring Canada’s satisfaction with the integrity and industry of the staff
generally and to indicating certain reservations about the Jurist’s approach to the Fifth
Amendment cases: See U.N. A/PV. 418, 23-38.

McGILL LAW JOURNAL

[Vol. I

3. Every host country is entitled to inform the Secretary-General that it
considers it undesirable that international functions should be as-
signed on its own territory to a particular national. In principle, the
Secretary-General should comply with the State’s wishes but it is
for the Secretary-General, bearing in mind these wishes, to make the
decision whether to keep that staff member or to employ him in
another country. (Presumably a French Communist would be un-
acceptable for employment in France but possibly acceptable if em-
ployed elsewhere and not otherwise a security threat to France.)

4. A particular host country’s legislation and jurisprudence do not enjoy
any privileged position in relation to the legislation and jurisprudence
of other states so far as the Organization is concerned. The Secretary-
General is bound only by the principles of the Charter and the French
Delegation expresses strict reservations about the meaning drawn by
the Secretary-General from the use made by certain American staff
members of the protection given them by the Fifth Amendment. (This
is the “equality of states” argument employed to prevent the supremacy
of any one municipal legal order in the operations of the Organiza-
tion.)

5. The International status of the organization must have the respect
of all member states including host states. This precludes a host state
from asking the Secretary-General to cooperate in the execution of
that country’s laws and internal regulations so far as international
civil servants are concerned.

6. Temporary contracts should -be replaced by permanent ones and
rarely given thereafter; security for staff should be reinforced and the
authority of Administrative Tribunal supported by the Secretary-
General, inspired by the spirit of its jurisprudence.

Not all delegations concurred in these French views, but they state the
strongest case against some of the interim administrative concessions made
by Mr. Lie and they refer also to related questions of general personnel
administration. For there can be no doubt that some of the problems of the
Secretariat arose out of the fact that only a limited time was available
to the Secretary-General in the years 1946-47 when he sought to recruit many
senior and middle-rank civil servants perhaps without an opportunity to
examine adequately their personal and technical records., 2

The net effect of the Plenary debate at the Seventh Session was to pass the
Resolution 708 (VII) –
inviting the Secretary-General to report to the
Eights Session, –
and also to leave behind the deep collective concern
of all delegations for the importance of the issue as it would influence the

5 2 REPoRT, paras. 30-34.

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UNITED NATIONS SECRETARIAT

future efficiency and morale of the Secretariat as well as the attitudes of the
U.S. Government and public opinion toward the Secretariat and perhaps to
the U.N. system as a whole.

VI.

‘CONCLUSIONS

It is an unhappy commentary on the tensions of these years that the United
Nations should have any energies dissipated by such issues as the personnel
dispute at a time when it needs all of its resources to fulfill the high tasks
assigned to it. Moreover it has been argued that the dispute over personnel
might never have arisen had it not been for the political accident or necessity
that located the United Nations in the United States; and that similar issues
have not appeared to bedevil the relations of other international agencies in
their respective host states, e.g. UNESCO in France, W.H.O. in Switzerland
and F.A.O. in Italy. Ironically too, it is in France and Italy that the two
largest Communist parties in the Western world are to be found and yet the
feeling of vulnerability to international personnel in these two states does not
seem to have matched the intensity of United States’ sensibilities.

On the other hand, there is in this debate a very real international organiza-
tion problem. It would be absurd to be indifferent to the depth of American
concern with respect to the suspicions among the great powers today. Equally
it would be absurd to ignore the domestic political significance in the U.S.
of a growing awareness since 1947 that international expansionist Com-
munism, sired and incited by the Soviet Union, has employed American
nationals as well as its own emmissaries to serve its interests and to under-
mine in every possible way the stability of U.S. institutions. Of course, this
awareness -has been accentuated by the often bitter differences between the
two great political parties and by the appearance in American federal politics
of one or two very influential public men who have concentrated particularly
on the problem of domestic pro-Soviet activity. Yet it is public knowledge
today that communists and the Communist Party in the United Stites now
seem to have been decimated in membership and broken in influence by the
revulsion of U.S. public opinion and the effectiveness of Federal enforcement
agencies. It very well may be, therefore, that a moment is approaching in the
formation of U.S. opinion that will permit a more balanced, objective approach
to the nature of an international secretariat and its needs. If this is true it
may then be possible for the U.S. and other members of the ‘United Nations
to approach the complex questions raised by allegations of subversion and
espionage in a spirit of constructive detachment.

Of course, this is not a problem which has meaning for the U.S. alone.
The principles arising out of this dispute must be considered in the light
of their relevance to the position of all host and member states. Manifestly
there are certain minor burdens which every host state ought to be prepared

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to accept and among these irritations are not only the presence of personnel
engaged on multi-national tasks that may be at variance with the inter-
national policies of a host state, but also the more striking fact that among
these international personnel may be bost state nationals who are no less
good citizens of the host state because they are loyal servants of the inter-
national organization. It may ease the difficulties of popular U.S. acceptance
of this thesis if the practical fact is emphasized that the U.N. Secretariat
in New York –
and this is equally true of the World Bank and the Fund
in Washington –
are concerned with matters where security information
plays a negligible role. Direct espionage or subversion is therefore no more
or less likely to take place because of employment in the U.N. Secretariat.
There is very little to hide in the relatively open files of a glass house; while a
determinedly “subversive” civil servant can have no more influence on policy
than astutely observant delegations or secretariat seniors permit him to have
namely little or none at all. And all of these possibilities are no less true
–
of U.S. citizens or public servants in relation to their own government.

It is, of course, not impossible that American nationals and others in the
international
Secretariat conceivably might have convictions about their
problems at variance with the relevant policies of the states of their nationality.
But this is the price that must be paid for having any international organiza-
tion whatever that is engaged in a positive program embracing both security
and welfare. This is not a question of divided loyalties so much as it is of the
emphasis to be placed on the interests to be served. The orientation of the
international civil servant’s mind is principally, but by no means exclusively,
to the multi-national world rather than to his own state. As an American
student put it in a penetrating study of the Secretariat :a3

Only a truly international staff can fully serve the fundamental purpose of the
Secretariat: to provide a center of cohesion and continuity, a hard core, to the
international system by assisting the Secretary-General in the performance of his
great responsibilities. A secretariat staffed by persons whose primary and permanent
loyalties lie elsewhere is, both by definition and by all our experience with inter-
national work, incompetent to fulfill in more than perfunctory measure the complex
assignments of the international executive. The tasks of the Secretariat may, in fact,
be too difficult for a staff of unquestionable international character; they would
clearly be beyond the capacities of a staff divided and inhibited in its loyalties.

It patently is true that there can be no room in an international civil service
for deliberate subversion or espionage, but that is a problem of personal
integrity and is far removed from the question of a U.S. or Canadian national
giving loyal and efficient service to an international organization. Wilfred

53Sup’ra note 1, THE UNITED NATIoNs SECRETARIAT; at p. 56.

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UNITED NATIONS SECRETARIAT

Jenks dealt feelingly and candidly a dozen years ago with the true character
of the international viewpoint :5

The first of these special qualifications is a distinctively international outlook …

A lack of attachment to any one country does not constitute an international outlook.
A superior indifference to the emotions and prejudices of those whose world is
bounded by the frontiers of a single state does not constitute an international out-
look. A blurred indistinctness of attitude towards all questions, proceeding from a
freedom of prejudice born of lack of vitality, does not constitute an international
outlook. The international outlook required of the international civil servant is an
awareness made instinctive by habit of the needs, emotions, and prejudices of the
peoples of differently-circumstanced countries, as they are felt and expressed by
the peoples concerned, accompanied by a capacity for weighing these frequently
imponderable elements in a judicial manner before reaching any decision to which they
are relevant.

It nay be suggested, moreover, –
as Mr. Dean Acheson himself has done
that recent U.S. preoccupation with “subversive” United Nations personfiel
would seem to have been very much out of proportion to the actual dangers
to U.S. security from staff members. And that preoccupation has tended to
close off an awareness of the desirable admixture of qualities and interests,
all founded on personal integrity, that can have a man remain a decent -and
loyal citizen, while performing as a conscientious and effective international
civil servant.

The legal problems too, though difficult are really not particularily formid-
able. There should be no tampering with that language of the Charter which
gives status to the Organization and independence to the Secretariat – with
freedom to the Secretary-General to fashion employment policies subject to
the Staff Rules and Regulations, General Assembly principles, and the
Administrative Tribunal judgements. The Convention on Privileges and
Immunities solved many of the foreseeable problems of the relations with
host and member states. What was not foreseen were these novel difficulties
raised by the impact of international Communist behaviour on the security
thinking and police needs of many Western states, especially the U.S.

There are two possible approaches to the legal aspects of the question.
There is, on the one hand, an insistence on the strict independence of the
Secretary-General to employ and to discharge within the Regulations as he
sees fit. This view is buttressed by the practical assumption that the
Secretary-General’s own good sense, aided by adequate information from
member states, can be trusted to evaluate unfit personnel and that his an-
nounced use of the Advisory Panel should provide effective safeguards
against “subversive” or “spying” activities. On the other hand member
states may claim that personnel seeking employment with the U.N., or

54W. C. Jenks, Some Problems of an International Civil Service (1943)

I1 Public

Administration Rev. 93 at 95.

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already employed, be required to have the approval of the states of their
nationality; while host-states conceivably may go further and insist that all
employees resident in the host state, including non-nationals, be subjected to
some measure of local government clearance. It is interesting to observe that
despite the French Delegation’s generally critical statement it did agree that
member states could determine the conditions under which their nationals
were to be employed by the U.N. –
but that at the same time municipal
rules could not control the staff decisions of the Secretary-General.

Yet this proposal of member state approval, or host-state clearance of
non-nationals – a fortiori the latter –
is open to some objection. It means that
the independence of the Secretary-General is directly inpinged on, in a form
not contemplated by the Charter, by the municipal rules of member states.
Certainly the draftsmen could not have intended that the Secretary-General
should be subject to the municipal decrees of individual states discriminating
against selected classes of persons with respect to their eligibility for inter-
national employment.

In this light the proposed McCarran Act,55 the recommendations of the
Jurists with respect to the use of the Fifth Amendment, the possible diplomatic,
if not public, insistence by the U.S. that the Secretary-General be guided by
the findings of its municipal agencies with respect to the political “risk”
quality of American Secretariat employees, all are procedures that inpinge
on the freedom of the Secretary-General. It is difficult to know just how far
any of these procedures are vitally necessary to American security. It is easy
to see however, that they may directly affect the ability of the Secretary-
General to employ those U.S. nationals who in his opition may be worth
employing. Indeed, at this very moment of writing the recruiting of U.S.
experts under the U.N. Technical Assistance program has been severely
interrupted by the ability of the Secretary-General to obtain U.S. clearances
rapidly or in some cases not at all.56 Some compromise here would seem to
be desirable. Indeed, it may be hoped that the proposed McCarran Act will
give way before such compromise and in the result permanent arrangements
between the U.S. and the Secretary-General on the furnishing and evaluation
of information will be established. The real difficulty, however, is that the
standard of employability
is one

in the President’s Executive Order

55Bill S.3 of the 83rd Congress, 1st Session, passed by the Senate in June 8, 1953, and
referred to The House of Representatives on June 9, 1953, making it an offence to obtain
employment from or retain employment with the U.N. without security clearances from
the Attorney General, all subject to a ‘fine of $10,000 and/or up to five years imprison-
ment. See also SENATE REPORT No. 223, MAY 4, 1953, To AccOMPANY BILL S.3 FRO-M THE
COMMTTEE ON JUDICIARY, stating that only by congressional legislation can U.S. nationals
effectively be prevented from taking employment with the U.N. without a security
clearance from the U.S. Government.

56N.Y. Times, Sept. 30, 1953, page 2.

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UNITED NATIONS SECRETARIAT

which places the onus on the candidate or employee to prove he is not a
security risk while the Secretary-General’s Report, supported by the Jurists,
places the onus on the Secretary-General, who is to be satisfied by the
“‘preponderance of evidence.” It will be surprising if a number of problems
soon do not arise out of this conflict of standards and if, to solve them, there
will not need to be established something amounting to a Standing Mixed
Panel comprising the Secretary-General and the United States with a “neutral”
chairman, and with the Panel’s decisions becoming binding by custom if not
by law.

A number of other legal and administrative problems are almost equally
contentious. There
is the effect of any U.S.-U.N. arrangements on the
position to be taken by other member states with respect to the employability
of their nationals and in some cases non-nationals. There is the control of
passports by member states thus interfering with the free movement of
Secretariat staff on official business. And there is the U.S. interpretation of
the Headquarters Agreement that has led to the refusal of entry into the
U.S. of Non-Governmental Organization representatives traveling to the
U.N. on official business.

With respect to the position of other member states it is clear that if the
Secretary-General accepts the U.S_ position on the Fifth Amendment cases
other member states may demand similar treatment for those of its nationals
who -have refused to testify before their national investigation agencies. How-
acceptable this would be to many U.N. members, particularily where this
procedure may be asserted by states notorious for the arbitrary behaviour of
their state organs, is a nice question. It is not difficult to predict that such
procedures could become subject to considerable abuse and might deprive
the Secretary-General not only of independence of judgment in many cases
but, in the end, of valuable personnel. In short, the effects of having local law
and process become a standard for employability of given nationals by the
U.N. would be to transpose into Secretariat employment policy municipal
standards greatly varying in their quality of substantive fairness and procedural
decency.

Similarly, while all member government allegations about subversion and
espionage must be taken very seriously by the Secretary-General, there scarcely
can be one rule for the U.S. and another for other member-states. Perhaps
here, too, the development of specific procedures – negotiation always, arbitra-
tion when necessary –
to resolve disputes between member-states and the
Secretary-General may be necessary. Conceivably these could lead to the slow
evolution of a standard common to the U.S. and other member states, a
standard that balances the problem of state security and dignity and some
limited control over nationals with the needs of a truly independent inter-
national secretariat and Secretary-General.

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The passport question too, presents more annoyance than difficulty. In
most cases, there is no problem in U.N. personnel moving about on the
business of the Organization. But the United States is not a party to the
Convention on Privileges and Immunities and U.S. passport laws do permit a
refusal to issue a passport where the “security” qualities of the national have
the State Department.57 Some sensible
been adversely determined by
arrangements need to be developed here. Who shall have the final word in a
dispute between the Secretary-General and the U.S. may not be easy always
to resolve, but perhaps here also the recommendations of the proposed Standing
Mixed Panel may become accepted as a matter of. tradition by the U.S.
although, of course, there would be no legal means to compel a passport to be
issued.

Finally, the views asserted by the U.S. as to its right under the Head-
quarters Agreement, to refuse entry to N.G.O. representatives, need to be
fully studied. The Secretary-General already has refused to accept these
U.S. “reservations”.”
Indeed, the Legal Department of the Secretariat
has expressed the opinion~sa that no reservation, –
covering the refusal to
permit the immigration entry of N.G.O. personnel for security reasons, –
in
fact was made at the time of ratification and Senate consent and, that in any
-case, the Joint Resolution of the 80th Congress ‘did not deal specifically with
the cases provided for in Sections 11 and 13 of the Agreement governing
travel to Headquarters, visas and the non-applicability of United States
immigration laws. Negotiations on these questions are presently continuing
between the Secretary-General and the U.S. and doubtless some agreement
will result –
although here again the low sensitivity threshold of U.S. opinion
as well as the new administrative procedures required by the McCarran
Immigration Act,59 are likely to render the process an uneasy one.

At bottom the personnel problem is a reflection of tension, distrust
and the largely unanticipated results of embracing both “East” and “West”, the
super-powers and their supporters, within a common forum and a common
security cume welfare institution. More immediately it is the result of the very
special character of United States’ opinion and recent public experience
there with “subversive” activities in and out of government service. There
is now however a very substantial body of discussion and analysis, as well as
several months of Secretariat experience in dealing with the U.S., to permit the
Secretary-General and the General Assembly to arrive at some statement
57See JURIST’S OPINiON 48-49 for a summary of the U.S. State Department Regulations

governing the issuance of passports.

5 8See PROGRESS REPORT BY SECRETARY-GENERAL TO ECOSOC on negotiations with the
U.S. concerning the interpretation of the Headquarters Agreement, Press Release
PM/2558, 27 July 1953; also Press Release ECOSOC/189, S/G 322, 31 July. 1953.

58aU.N. doc E/2397. April 10, 1953.
59The Immigration and Nationality Act (1952), 66 Stats. U.S. 163.

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UNITED NATIONS SECRETARIAT

of general principles about staff behaviour and member-state obligations that
should be acceptable to all member and host states, and particularly to the
U.S. It would be helpful at this juncture if the U.S. would accede to the
Convention on Privileges and Immunities and were to take a fresh look i.t
its obligations under the Headquarters Agreement. But even if this cannot
be done, because of the taut sense of responsibility in security matters which
American leadership may feel today, there is nothing to prevent the General
Assembly from formulating – with the advice of a Commission selected to
study the issues – a statement of principles and procedures that will secure the
best interests of both the Organization and all member and host-states in
these subversive allegation matters. It probably would be impractical to
attempt to amend the :Convention or the Headquarters Agreement at this
time even if it were found desirable to do so, and a General Assembly Resolu-
tion on Principles and Methods to deal with allegedly subversive staff should
do just as well. Such a statement should reflect the need to reassert the
independence of the Secretary-General in ‘his employment practices and should
formulate particularity the extent to which certain limited “clearance” re-
quirements by member states may or may not be consistent with such in-
dependance; the desireability of some clarifying details as to proper and
improper “political” activity by international civil servants; the need to
establish procedures for settling disputes between the U.S. and the Secretary-
General on the evaluation of information; some conclusions as to the meaning
of the Fifth Amendment cases, and the relevance of any resulting employment
standards and procedures vis-a-vis U.S. nationals, to all other host and member
states; the desireability of some clearer definition of the legal status of the
“Laissez-Passer” and some limitations on the control of passports by states
to affect the movements of U.N. personnel; a clearer formulation of the ‘rights
of accredited N.G.O. representatives to visit the U.N. officially with the least
hindrance by the host state, –
except on “proven” security grounds or where
such visitors are not bona fide on the business of their organizations. And
finally, these procedures should seek to retain the Administrative Tribunal
now commanding the substantial respect of most member-states and U.N.
–
employees –
as the proper appellate body to review the dismissal of holders
of permanent contracts. Perhaps the Tribunal should have special in camera
procedures for these security cases as well as some principles –
including
a fixed ‘maximum –
to guide the amount of indemnities awarded, if any,
for those discharged on “subversive” or like grounds.60

60For a statement of the views of international civil servants with respect to the
policies followed by the Secretary General of the United Nations in dismissing or sus-
pending personnel on Fifth Amendment or other “subversive” grounds, see the legal
opinion of Prof. Henri Rolland, published by the Federation of International Civil
Servants Associations, N.Y. Times, October 24, 1953.

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Such a code of principles and procedures, passed by two-thirds of the
General Assembly, might go far toward clarifying what is now too ambiguous
and thus to removing what may become a chronic irritant in the relations of
the U.N. and the U.S. These principles would serve also to -help prevent the
spread of the personnel dispute to other member states and could become a
model for the parallel relations of the Specialized Agencies and other inter-
national organizations.

It would be melodramatic to pretend that the future of the U.N. hangs by
the wise management of the personnel issue. There are deeper ills to treat
and greater battles for the U.N. to win. Indeed, Percy Corbett long ago
doubted whether any immunities whatever are necessary for international
civil servants;61 but this is a counsel of indifference. Widely dispersed
“diplomatic” privileges, no, but for the rest: function, history and ritual are
against him. Modern international organization is a growing political organ-
ism ever in need of finding new adjustments between the desire of many states
to strive together for peace and welfare and the deep resistances in their
policy and law to the emergence of supra-national authorities. The United
Nations is the most “comprehensive” of all such organizations and frequently
it has met the fate of too much being expected from it in an ‘out of joint’
time. But if anything lasting is to come from the U.N. there will need to be,
among many other elements, the sustained support of member-states for it as an
institution, with a life, an identity, a developing “independence” of its own,
but an independence that must be fitted always, in a creative constitutional
sense, into the hard mould of ideas about national sovereignty.

It would be unrealistic, however, to ignore these authentic Secretariat
needs, raising as they do problems of law, administrative technique and
morale, or to ignore the symbolic significance of a well-defined, independent
Secretariat position for the United Nations system as a whole. It will require,
therefore, political insight and skill, much patience and a considerable feel
for the evolving constitutional law and administration of international organ-
izations, to dispose of these matters so that the United Nations, its members
and its staff, may freely and efficiently go about their immensely varied and
urgent business.

CoRBEr, POsT-WAR WORLDS (1942) 173.