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THE UNITED NATIONS CIVIL SERVANT:

AN IMPORTANT ROLE IN INTERNATIONAL RELATIONS

SAFWAN MAQSOOD KHALEEL

safwan.maqsood@gmail.com

Lecturer in Public Law, University of Sharjah (United Arab Emirates)

Abstract

Many factors play positively and negatively in international relations. International civil

servants are among the most important. They are appointed to work in an international

organization (regional or global) to carry out various types of assignments and to influence

the conduct of international relations between the country concerned and the organization

where they work or between the Member States at other times.

Sometimes international civil servants help to maintain international peace and security (here

we are not talking about the peacekeepers). They encourage \development in different

countries of the world, as it can unfortunately be the cause of bad relations between countries.

They may even commit serious violations qualified as criminal offenses in the exercise of their

functions, invoking professional immunity granted by the 1946 United Nations Convention on

Privileges and Immunities.

Therefore, the need for a legal framework of their position within the international

organisations is of the utmost importance, the same applying to the need to reassess their

immunities, since the number of international civil servants has reached tens of thousands in

these organizations around the world. The way the European Union has addressed the

question of international civil servants is one of the best to date and an example that other

organizations should follow.

Keywords

International Civil Servant, Functional Protection, UN Dispute Tribunal, Global Administrative

Law, International Civil Service Commission.

How to cite this article

Khaleel, Safwan Maqsood (2020). "The United Nations civil servant: an important role in

international relations". In Janus.net, e-journal of international relations. Vol. 11, No. 2

Consulted [online] at date of last visit, DOI: https://doi.org/10.26619/1647-7251.11.2.8

Article received on 7 April 2019 and accepted for publication on 30 March 2020

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Safwan Maqsood Khaleel

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THE UNITED NATIONS CIVIL SERVANT:

AN IMPORTANT ROLE IN INTERNATIONAL RELATIONS

SAFWAN MAQSOOD KHALEEL

Introduction

International organizations are entities with a legal personality independent of the

countries that contributed to their creation and must have employees to manage their

affairs and implement the objectives they have set for themselves. Of course, the United

Nations has a central role to play in the achievement of international peace, security and

development. In order to guarantee an efficient and impartial service, certain criteria

must be defined for the people working for the organization. It is also important to

distinguish the category of international civil servant from other categories staff working

in these organizations.

Thus, it is necessary to define the role played by people who manage the UN and ensure

the achievement of the above-mentioned objectives, considering the constant increase

in the number of employees linked to this organization, which exceeds tens of thousands.

It is important to look at the criteria for selecting UN civil servants, because it is an issue

that is growing in importance due to the sensitivity of the work and the missions

international civil servants are entrusted with.

In addition, the relevance of this issue is linked to the existence of political considerations

required in the selection of UN officials, in particular for senior positions. Some Member

States intervene in the process of appointing a specific person, sometimes to oppose

him. This intervention has a negative impact on the level of loyalty of the organizations’

international staff and on their neutrality in the performance of their duties. Thus, many

of them have become the reflection and the extension of the policy of their countries,

even an extension of the representation of their state within the headquarters of the

Organization

I. The emergence of the European international civil service

Some jurists believe that the idea of the international civil service dates back to what are

known as the International River Commissions, such as the Organizing Commission for

the Navigation of the Rhine, established in 1851, and the Danube Commission, created

Article translated by Carolina Peralta.

Lemoine, Jacques (1995). The International Civil Servant. The Hague: Kluwer Law International, p. 18.

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in 1856

. These organisations had in their ranks a number of officials entrusted with

specific powers and who were independent, in the exercise of their functions, from their

country, in order to be able to carry out their tasks impartially and fully for the benefit of

all Member States. The creation of these commissions required holding regional and

international conferences. These conferences had general secretariats, and, therefore,

permanent officials working in these conferences to monitor the implementation of the

resolutions.

Another example was the Hague Conference for the Peaceful Settlement of International

Disputes, which took place between 1899 and 1907 and whose general secretariat had

25 members, appointed by the countries participating in the conference

. In addition, the

so-called semi-international associations specializing in a number of technical issues have

greatly contributed to the emergence of the international civil service. They are the result

of the evolution of links and growing exchanges between states, unlike international

conferences, as international cooperation and exchanges are continuous and coherent.

And there are only administrative powers, subject to the supervision of one of the

member states

. It should be mentioned that some of these Unions recognized privileges

and immunities to officials who occupied their secretariat, such as the International

Institute of Agriculture. Its officials enjoyed immunities and privileges vis-à-vis member

states and even the host country in the course of their official duties, both internally and

externally

. In general, these Unions, and before them, the International Conferences,

were not considered to be international organizations and did not have their legal

personality or mandate. Thus, the sovereignty of their ember states was not restricted.

Rather, they were seen as technical coordination bodies in a specific area between

countries. It cannot therefore be said that international administrative officials already

existed

After the end of the First World War, there were world events whose impact was to

disseminate the rules of public international law and the holding of the 1919 Versailles

Conference, linked to international organizations, in particular the evolution from the idea

of a conference of a few days to an organization that will stay for decades. With regard

to our subject, the term "international civil servant" was also used there for the first time

and these civil servants were placed in charge by the civil servants of the general

secretariat of the League of Nations and those of the International Labour Office in in

Geneva.

The workforce of the League of Nations, from several European countries, had grown to

over 800 employees, including the world's highest administrative official, the Secretary

Blanquet, Marc (2001). Droit communautaire général, 8th edition. Paris: A. Colin, p. 41

Guilhaudis, Jean-Francois (2017). Relations internationales, 4th edition. Paris: Lexis Nexis, p. 182.

Some federations and unions established at this time included: the International Bureau of Weights and

Measures; the International Bureau of Rail Transport; the International Telegraph Union, the World Postal

Union, the Union for the Protection of Industrial Property, the International Health Bureau; the International

Union for the Publication of Customs Tariffs, the Union for the Manufacture of Sugar. See Pingel, Isabelle ,

«Observations sur la convention du 17 Janvier 2005 sur les immunités juridictionnelles des États et de leurs

biens», (2005) 132 Journal de droit international 1047.

Pellet, Alain, and Ruize, David (1993). Les fonctionnaires internationaux. Paris: PUF, p. 32 ff.

Bawindsomde, Ouedraogole (2012). Le statut Juridique du Fonctionnaire international sous l’angle des

fonctionnaires de l’ONU et des fonctionnaires des Communautés européennes: Contribution à l’actualité de

la notion de fonctionnaire international, Ph.D. thesis presented on 23 March, p. 72.

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General of the League of Nations, considered the first administrative head of an

international organization. This organization published a policy governing the rights and

obligations of its employees

With the establishment of the United Nations in 1945, the international civil service

achieved great fame. Indeed, the rights and duties of international civil servants, and the

privileges and immunities that they enjoy have been enshrined in international

conventions. The most notable was the 1946 UN Civil Servants Privileges and Immunity

Convention

. In addition, the establishment of the International Civil Service Committee,

in accordance with resolution 3357 of 1974, has had a significant impact on the

development of the international civil service

. There is also the advisory opinion of the

International Court of Justice concerning the definition of the international civil servant

of 11 April 1949, which is one of the most important provisions of international justice

and organized an important aspect of the rules applicable today to international

functions

II. The UN civil servant: from international administrative law to global

administrative law

It is clear from the above that the concept of international function has evolved and

affirmed itself away from the influence of the member states of the international

organization, notably with the creation of the League of Nations and then the United

Nations. The international function notion has become the reason for creating a new

branch of public international law: international administrative law, which has split

jurisprudence as to its existence as a branch of international law.

French jurists support the existence of this branch of international law and define it as

the set of legal principles governing relations between international organizations and

their staff. They believe that the objective of this branch of international law is

international cooperation and that, like domestic administrative law, it has administrative

jurisdiction

The example given in this regard is the creation of an administrative tribunal by the

League of Nations to rule on disputes between itself and its employees. The UN also

created the United Nations Administrative Court. French jurists also claim that supporting

the existence of international administrative law would lead to the recognition of the

existence of the international civil service and administrative staff. The other view is that

adopted by Italian case law and by some German jurists. Indeed, its supporters believe

For additional information see: Zavala, Daniel (1976). «La Commission de la fonction publique

internationale», 22 Annuaire français de droit international 501; Klabbers, Jan, «The EJIL Foreword: The

Transformation of International Organizations Law», (2015) 26:1 European Journal of International Law 55.

Lewis, Patrick (2014). «Who Pays for the UN Torts: Immunity, Attribution, and Appropriate Modes of

Settlement», 39:2 North Carolina Journal of International Law and Commercial Regulation 263.

Sur, Serge and Combacau, Jean(2008). Droit international public, 8th edition Montchrestien, Paris, p.724.

For additional information on this topic, see: ICJ, 11 April 1949, Advisory Opinion, Reparation for Injury

Suffered in the Service of the United Nations, Rec. 1949, p. 177.

Nada, Taha (1986)., Le fonctionnaire international, [in Arabic], General Egyptian Book Organization, Cairo,

p. 33; Lorenzo Casini (2019). Global Administrative Law, in Jeffrey, Dunoff and Pollack, Mark (eds),

International Legal Theory: Foundations and Frontiers, Cambridge University Press, p. 6.

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that there is no international administrative law and deny the existence of international

bodies in the form of organizations.

Therefore, they believe that administrative activity within these international

organizations is only an internal activity of member states, falling only under national

administrative law. They do not recognize the existence of an international civil service

Recently, jurists of public law in general and of international law speak about global

administrative law (GAL) as a new branch of international law. The first appearance of

the term global administrative law dates back to a study published in 2002 in a legal

journal, adopted later in 2004, precisely by a research project prepared by the University

of New York, then disseminated to other research institutions. The term global

international law replaced what is traditionally called international administrative law, the

emergence of which was associated with the creation of international federations, which

paved the way for the creation of international organizations

. Global administrative law

attempts to avoid being part of general international law, as is the case with international

administrative law. Global administrative law covers broader subjects than those included

in international administrative law, as it regulates the rules relating to international

organizations. It is a rule body of international organizations. It also regulates the rules

of global private and public institutions where certain public functions are conducted.

It also regulates the bases of non-governmental organizations or civil society ones, both

local and international. Therefore, global administrative law is a broader term for what

used to be called international administrative law. Global administrative law has two

levels of rules: local rules and international rules, because it transcends national borders

and addresses individuals directly without the need for an intermediary. It is also linked

to what is called global governance. The sources of this law are international treaties of

all kinds, rules of customary international law, and general principles of customary law,

in addition to the national law of states

III. The evolving definition of international civil servant

Many jurists classify all employees of international organizations, whether civil servants

or other categories, in the group of international employees, while other jurists reject

this view and believe that a distinction is necessary. The supporters of the first opinion

are inspired by the definition of the ICJ, in its advisory opinion of 11 April 1949 on the

question of the compensation of United Nations officials, which states: “an international

employee is any person, paid or not, who works permanently or temporarily, assigned

by an organ of the Organization to exercise functions or provide assistance to the

functioning of this entity, or each person acting under its authority”

. For them, this

Kingsbury, Benedict (2009). «The Concept of Law in Global Administrative Law», 20:1 European Journal of

International Law 24.

Lorenzo Casini, supra note 11- 8.

Kingsbury Bendict, supra note 11-25.

Supra 10-177; it must be referred that the Community official is defined as (any person who has been

appointed under the conditions provided for in this statute in a permanent post of one of the institutions of

the Communities by a written act of the power of appointment of this institution). See: Bawindsomde,

Ouedraogole, Supra note 6-226.

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definition is broad, due to the inclusion of international civil servants and other

categories, as is the case today of the Blue Helmets, special representatives assigned to

mediation and even technical experts given specific tasks

. Of all these categories, only

international civil servants provide permanent and exclusive services to the organization

and are the only ones to be selected on the basis of the principle of equitable geographical

distribution among Member States

. On the other hand, another opinion, opposing this

view, considers that to regard temporary international civil servants and permanent

international civil servants as being all civil servants is unacceptable. In its advisory

opinion of 11 April 1949, the ICJ dealt with an individual case involving temporarily

appointed international employees, namely Count Folk Bernadotte, and referred to the

need not to distinguish between employee and international civil servant in order to

justify the organization’s right to claim compensation. On the other hand, other

categories are subject to their own rules in matters of selection, appointment, rights and

obligations, even if they perform missions linked to international organizations, as is the

case of international judges, whether they are members of the ICJ or of the International

Criminal Tribunals (ICT)

. Based on this distinction, we must mention some of the

definitions introduced in the law regarding international employees and international civil

servants.

An international employee can be defined as follows: “any person carrying out an

international assignment on a temporary basis for an international organization”. This

description applies to those the international organization assigns temporary tasks, such

as experts and mediators

As for the definition of an international civil servant, jurisprudence has provided several,

of which the one advanced by Professor Paul Ruter was chosen: “an employee of an

international organization governed by a specific legal system, not subject to internal

law, exercising international functions on a continuous basis”.

It can be seen that this definition contains the following elements:

- A time-based element: the function is permanent and continuous.

- A legal element: the worker’s compliance, in his working relations with the

international organization, with the legal system that it establishes to regulate such a

relationship and not with the legal system of a given state.

- The employee performs his work in accordance with the interests of the organization

and not those of a state. This element does not prevent the employee from carrying

Dubois, Valerie (1985). La condition juridique des agents internationaux, in: Les agents internationaux,

Colloque d’Aix-en–Provence, Editions Pedone, Paris, p. 30.

Pellet, Alain (1989), supra note 5-10; ICJ Advisory Opinion, 15 December, Applicability of Section 22 of

Article VI of the UN Convention on the Privileges and Immunities, Rec, p. 194.

Note that Susan Bastid adopted this view in her definition of the international civil servant, but later deviated

from it, specifically in the 1970s. For additional informatin see: Bettati, Mario (1987). «Recrutement et

Carrier des Fonctionnaires Internationaux», IV Recueil Des Cours de Droit International 373.

Fakhory, Ammer (2017). «Le statut juridique des fonctionnaires internationaux», [in Arabic], 13 Revue des

droits et sciences politiques, 114.

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out his activity within the territorial framework of a given country, insofar as it is in

the interest of the organization

This is what distinguishes international civil servants from other employees of

international organizations, who are appointed on the basis of national rights, such as

service employees and minor employees. After reviewing these definitions, it is necessary

to realize that there is a clear difference between them. This difference is sometimes not

clear, in particular because of the complexity of the concept of international function. In

the United Nations, for example, the recruitment system allows employees on short-term

contracts to benefit from all the privileges and immunities of an international civil servant.

Some consider this to be an exception to the general rules that distinguish an

international civil servant from an international employee

There is no doubt that the state representatives within international organisations do not

enjoy the same status as the international civil servant, because of the nature of their

work, the immunities and privileges they enjoy and the official name assigned to them

This is quite normal given the entity to which international civil servants and state

representatives report. According to the 1946 United Nations Convention on Privileges

and Immunities, the representative category included all representatives, assistants,

advisers, technical experts, and mission secretaries

. It should be noted that although

their place of intervention is the offices of the international organizations, there is a

distinction between the two categories. It can be attributed to several factors, including

the nature of the work they do.

A representative of a Member State has a dual activity: he participates in affirming the

objectives and principles of the organization and in achieving its objectives by voting on

its resolutions. However, he works in favour of the interests of his state within the

organization. The state representative here places the interests of his state before other

interests. As a state representative, even if he serves the organization, he is not

considered an international civil servant. The terms of appointment of the two are

different: the state appoints its representative in accordance with its national legislation.

On the other hand, the international civil servant is appointed by decision of the Secretary

General of the Organization or by one of its bodies

. A state representative cannot invoke

the privileges and immunities granted by the Organization and, in the event of damage,

claim the responsibility of his state.

Bettati, Mario, supra note 18-375.

Fouda, Guillaume (2013). «Agents et fonctionnaires internationaux dans un ordre international en

mutations», le journal de droit 5; Jean-Marc Coicaud(2007), «Lafonction publique internationale en

question», 5 Les carnets du CAP 47.

Langrod, George (1963). La fonction publique internationale: sa genèse, son essence, son évolution,

Sythoff, Leyden, p. 32.

The 1946 Convention on the Privileges and Immunities of the United Nations. It should be noted that

according to the Community Law Regulations, European experts are civil servants of the Member States or

international civil servants working on a temporary basis, for a period of 6 months to 4 years, for an

institution of the European Union. Pingle, Isabelle, supra note 4-1048. Bawindsomde, Ouedraogole, supra

note 6-230 ff.

Klabbers, Jan,supra note 7-56.

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On the other hand, an international civil servant, appointed by the international

organization itself, has the right to benefit from immunities and privileges vis-à-vis all

member states. Wrongdoing is also the responsibility of the organization itself and not of

the state of his nationality. Finally, the organization exercises functional protection

towards its employees, while the state exercises diplomatic protection towards its

nationals and its representatives within the organization

IV. The UN and the appointment of its officials

The United Nations enjoys a certain degree of freedom in the selection process of

international personnel, since it can dispense with the consent of the state to which the

candidates belong. Article 101 of the Charter of the United Nations states in its first

paragraph: "The staff shall be appointed by the Secretary-General under regulations

established by the General Assembly"

. This is actually a theoretical basis. In its concrete

application, the interventions of the countries appear very clearly, some states intervene

in order to designate or prevent the designation of some of their citizens or even of

persons belonging to other countries

One notes that the legal qualification for appointing international civil servants has split

into two groups: the first considers that it is the same as that applied to civil servants in

the internal legal system of the state. The second thinks that international functions have

a specific character and are distinct from the public service of domestic law, because the

work is carried out in an international community characterized by the weakness or

absence of social solidarity between its members

. In addition, the civil servant within

the state is subject to national laws, and to strict penalties if he violates them.

On the other hand, at international level, the rules for appointing an international civil

servant are done in accordance with a contract between him and the UN. The recruitment

letter constitutes the agent's affirmation and consent, commonly referred to by

international organizations as an employment contract

. The individual's membership in

the UN requires the publication by the SG of a single appointment decision, whether the

individual is recruited by appointment or by selection process. In this regard, he must

cease his work in his country of origin, whether governmental or private, when he joins

the UN

However, sometimes the major states intervene in the nomination of the candidates, in

particular for important positions in the organization. The state proposes certain names

with a high record of effectiveness for higher functions and rarely for lower functions

It should be noted that the selection mechanisms are multiple and vary depending on

Lewis, Patrick, supra note 8-274.

The UN charter 1945.

Jordan, Robert (1991). «The Fluctuating Fortunes of the United Nations International Civil Service: Hostage

to Politics or Undeservedly Criticized? The Fluctuating Fortunes of the UN International Civil», 51:4 Public

Administrative Review 354.

Fakhory, Ammer, supra note 19-117.

Fouda, Guillaume, supra note 21-6.

Devin, Guillaume (2011). «Les Evolutions de l’ONU: Concurrences et Intégration», 53:4 Critique

Internationale 9.

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the nature of the contract between the person and the organization: temporary (fixed-

term) or indefinite. The former is generally applied to organizations and specialized

agencies and those related to the United Nations

One of the countries’ illegal forms of interference in the recruitment process is to exert

pressure on the United Nations through the Secretary-General or senior officials, to

appoint or prevent the appointment of some of their citizens, for internal or external

political reasons. The pressure exerted by the US administration on former United Nations

Secretary-General Trygve Lie between 1952 and 1953 is an example. The United States

had wanted and succeeded in expelling a number of American and Communist staff from

the Secretariat.

In addition, other forms of pressure have been exerted by certain states on the UN and

its organs and specialized agencies, with the aim of hindering the selection of employees,

such as the enactment by these states of national legislation prohibiting their nationals

from entering the service of the international organization without their authorisation

V. Selecting UN officials: Towards a fair and equitable system

There is the need to select highly qualified persons to the organs of the UN and support

its bodies in adopting certain principles to be taken into account when selecting

candidates for administrative and technical posts.

1. Membership

International organizations tend to exclude applicants from non-member countries. They

must therefore belong to one of the member states of the organization, which is a natural

consequence of a country's membership of the entity. The international organization

cannot include nationals of countries that do not belong to it, because their principles

may be different from its own. We can therefore wonder about the intentions of people

among the nationals of these non-member countries who come forward to work there.

According to current jurisprudence, the refusal of the international organization to accept

the appointment of persons belonging to third countries, despite a potentially higher level

of competence than nationals of Member States, is accepted. And the third-country

national does not have the right to appeal to international tribunals and administrative

jurisdictions

2. Amount of the financial contribution to the organization

Bettati, Mario, supra note 18-303.

Lemoine, Jacques, supra note 1-49; It should be mentioned that some countries in the Middle East such as

Iraq before 2003, Syria and Gadafi's Libya have criminalized their citizens who have been selected to

international organizations without their consent. See: Guilhaudis, Jean-Francois, supra note 3-187.

Pellet, Alain (2007), supra note 5-32; Cot, Jean-Pierre et Allain Pellet, La Charte des NU, 3rd edition,

Economica, Paris, p. 1349 ff.

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This rule is based on the principle that who pays the most should have the largest share

of employees in the organization. The United Nations decided in resolution of the GA no.

42/220 of 29 January 1988 that the minimum amount in the bank account should be US

$2,700 for a state to appoint its nationals as UN international civil servants.

3. Principle of equitable geographical distribution

This principle is mentioned in article 101, paragraph 3, of the United Nations Charter,

which was a pioneer in its implementation. In accordance with the declaration made by

United Nations Secretary-General U Thant in 1968, this principle means that the

organization must be concerned with the experience and culture of each nation or

Member State

A ccording to this point of view, this principle envisages the contribution of the state or

culture or a people to the activity of the organization, the minimum which should not be

waived in its demands for the appointment of its nationals. The number has been set at

four officials per country. This means that, according to United Nations statistics, the

staff of the Secretariat, which includes thousands of people, must be from all Member

States and have at least four employees per Member State

. The report issued by

UNESCO is an example of the imbalance with regard to the nationality of international

civil servants, as the majority of people employed by this IO comes from Western

countries

In addition, 60% of the staff of the UN General Secretariat were from European countries

and North America

Adopting this principle is one of the most difficult issues facing international organizations

in the selection of staff. Some countries may not be able to provide the required number

of citizens to work in the organization. This principle will automatically give the state the

inherent competence to identify employees who may not have the required qualifications,

which will affect the performance and activity of the organization itself

. But some

countries, such as the countries of Eastern Europe during the communist era and of the

Middle East, have chosen candidates for positions in the UN and specialized agencies

supposed to be in favour of the current regime. This means excluding qualified skills

belonging to these countries from standing as candidates for an international civil servant

position

Plantey, Alain (2005). Fonction publique internationale, CNRS Éditions, Paris, p. 285.

Weiss, Thomas (2010). «The John Holmes Lecture: Reinvigorating the International Civil Service», 16:1

Global Governance 47; Jordan, Robert, supra note 26-354.

Ismayil, Meryll (2014). «Les politiques de présence des Etats Occidentaux au sein des Organisations

Internationales», 45:2 Etudes Internationales p. 287.

Ibid.

Cot, Jean-Pierre and Allain Pellet, supra note 32-1352.

It should be noted that the UN Administrative Tribunal says that the only way to recruit international civil

servants is through the calls organized by the UN. For more details on these judgments, see Ruize, David

(1988). «Jurisprudence de Tribunal Administratif des NU», 44 Annuaire française de droit international 422.

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4. Applying the principle of merit

In order to deal with the problems raised by the previous principle, jurisprudence began

to search for a principle or a rule aimed at limiting it. The appointees must be highly

qualified and competent with scientific qualifications and have received specific training.

Supporters of this principle believe that they strive to revitalize the work of international

organizations by providing them with scientific and professional skills, through candidates

with varied skills, chosen from among the most qualified, even if they must belong to a

Member State that has exceeded its quota. This is what the UN Legal Adviser and its

specialized agencies has authorized

. It should be noted that Article 101, paragraph 3,

of the Charter of the United Nations refers to the principle of merit, which states: “The

paramount consideration in the employment and determination of the conditions of

service shall be the necessity of securing the highest standards of efficiency, competence

and integrity”. It is based on this principle that the United Nations and its agencies select

and appoint their staff

5. Principle of the independence of the international civil servant

The principle of independence is one of the fundamental principles enshrined in all the

fundamental charters and regulations of international organizations. The member states

of each IO are bound to respect the international character of this official and do not have

the right to influence him in his functions, even if he has their nationality

. In its advisory

opinion on the request for reform of judgment no. 33 of the United Nations Administrative

Tribunal (UNAT), the International Court of Justice (ICJ) affirmed that the independence

of the international civil servant is a fundamental guarantee of the proper functioning of

international organizations. This independence is protected in the event that the heads

of these organizations have appointed persons for a fixed period

The guarantees of the independence of international staff are found in international legal

documents

, in particular in the legal system that governs relations between

international organizations and states (charters and treaties, agreements between the

organization and Member States and organization’s individual acts)

. International civil

servants enjoy less privileges and immunities than those granted to diplomats. They are

conferred on them on the territory of the Member States, since they must be able to

Lemoine, Jacques, supra note 1-194.

Udom, Udoh (2003). «The International Civil Service: Historical Development and Potential for the 21st

Century», 32: 1 Public Personnel Management 102.

David, Meryll (2008). «Les stratégies d’influence des États membres sur le processus de recrutement des

Organisations internationales: Le cas de la France», 126:2 Revue français d’administration publique 269.

See Advisory Opinion of 27 May 1987 on the Interpretation of the UNAT Judgment No. 333 of 1984, p. 226.

The enjoyment of the immunities and advantages of an international civil servant is enshrined in all legal

documents produced by international organizations. The Convention on the Privileges and Immunities of

the United Nations of 13 February 1946 constitutes the fundamental basis of other international

organizations. These immunities sparked a legal debate, in particular on the level of profits by the experts

of the special missions and the rapporteurs of the sub-committees. This forced the United Nations to ask

the ICJ to issue an advisory opinion on the possibility of applying the 1946 Convention to these categories.

Members of special missions and human rights commissions benefit from the scope of the Convention.

Read: ICJ Advisory Opinion, 15 December 1989, Applicability of Section 22 of Article VI of the Convention

on the Privileges and Immunities of the UN, Rec.

Jordan, Robert, supra note 26-354.

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exercise their functions independently of the influence of different countries. On the other

hand, senior international officials such as the Secretaries General and the Director

General of the World Organization enjoy immunities similar to those of foreign

diplomats

There are two types of immunities granted to United Nations officials. Ordinary officials

enjoy only one type: immunity related to office. It is only granted to them during their

work. The United Nations accepted this immunity on the grounds that the crime

committed by its ordinary officials does not fall within their professional obligations. The

official must therefore be held responsible. As for senior officials, including the Secretary-

General, his assistants, heads of cabinet, his special representatives and heads of

agencies linked to the United Nations, they enjoy two immunities: that relating to office

and personal immunity. They are not prosecuted for their acts even if they constitute

crimes within the meaning of the law of the host country

6. Gender parity: a new challenge for the UN system

In addition to the previous principles, many international organizations started adding a

new principle related to gender equality two decades ago. This is a new term, somewhat

broader in scope than the traditional principle of equality and than the principle of non-

discrimination on ethnic, religious, linguistic, cultural and national grounds. This new

principle finds its origin in the rule of non-discrimination between genders as an

international legal principle. Gender parity was instituted by the Cairo Conference on

Population in 1994 and by the Beijing Declaration in 1995, as indicated in article 7,

paragraph 3, of the Rome Statute of 1998 of the ICC, which aimed for equality between

genders

Historically, for centuries women have been the subject of blatant discrimination within

the national framework, especially at the level of work: lower wages and benefits - fewer

employment opportunities, which has pushed the UN to act and deal with this apparent

marginalization. The 1979 Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW), to which a large number of UN member states have adhered,

attempted to avoid this discrimination

With regard to gender discrimination, in IOs such as the UN and specialized agencies, it

should be noted first of all that the European Union has made great progress in

implementing the rule of prevention of discrimination based on gender in a way

unmatched in other international organizations, in particular by introducing the

prohibition of discrimination based on gender as one of the rules for recruiting officials of

See Articles 18-19 of the 1946 UN Privileges and Immunities Convention.

Freedman, Rosa (2018). «UN accountable: A New Approach to Peacekeepers and Sexual Abuse», 29:3

European Journal of International Law 966.

Weiss, Thomas, supra note 34-43.

Devin, Guillaume (2017), supra note 29-16; Achieving Gender Parity on International Judicial and

Monitoring Bodies - Report presented by the International Human Rights Law Clinic in the University of

California, October, p. 16.

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the European Union. The occupancy rate of important positions and lower jobs by women

in institutions of the European Union is very high

For the UN and its related bodies, it should be noted that the quota of women obtaining

jobs is still very low and tends to strongly favour men. In an important report published

by the UN Secretariat in December 2017, the situation was considered very negative:

among the high-level positions in the UN and in the bodies and institutions associated

with it, the occupation quota for positions of responsibility by women does not exceed

29% against 71% for men. As for those of the assistants to the Secretary-General,

special rapporteurs, special representatives, chairpersons of committees and even

research institutes associated with the UN, the same applies. When it comes to lower

jobs, although the rule of preventing gender discrimination is spelled out in the United

Nations recruitment rules, the rate of women getting a job and even entering the

selection process is very low compared to men.

In view of the criticisms that continue to be led by NGOs concerned with women's rights

on the imbalance of jobs, the UN Secretariat set up a task force in January 2017 to study

this great disparity in the percentage of women applying for a job. This team has

developed a strategy entitled "Women and the United Nations" to be applied to all organs

of the organization without exception, even in peacekeeping missions. Since the

beginning of 2018, the strategy obliges each organ or administration of the United

Nations to set up a mechanism for monitoring the application of the rule of preventing

gender discrimination in the occupation of jobs. And the issue did not stop at this point,

but spread to the Member States themselves, the General Secretariat informing them

and urging women to apply to the organs of the organization

VI. The legal link between the International Organization and its

officials

The qualification of the legal link between international civil servants and the UN is one

of the questions whose emergence was linked to the development of the international

function within the UN, making it necessary to define the nature of these relations. This

resulted in the emergence of three points of view

Supporters of the statutory character consider the relationship between the official and

the UN as a statutory or disciplinary one. The civil servant is completely subject to the

organization and to its will, his legal status being similar to that of a civil servant in

administrative law within a state. It should be emphasized that this compliance is not

limited to the rules applicable to the civil servant at the time of his entry into the

international post, but also to upcoming changes in his status or in what are called

resolutions relating to civil servants. They consider that the counterpart is the existence

of rules relating to the rights of civil servants, in the event of a dispute. Administrative

Udom, Udoh, supra note 38-123.

ITU Gender Parity Strategy: Report presented by the ITU to the UN secretary General in April 2018. Doc

C18/63-E, p. 7.

Guilhaudis, Jean-François, supra note 3-183.

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tribunals have been created by the various international organizations, which have given

them the competence to examine the requests and complaints of their employees

On the other hand, certain jurists criticize the statutory character and base the

relationship between the civil servant and the UN or one of its organs on a contractual

character, based on an employment contract between the official and the organization.

This contract gives both parties an equal legal status, determines the rights and

obligations of the parties, in particular in relation to the expiry of the contract, and is

based on the principle pacte sunt servanda, which means that the parties cannot be freed

from the obligations arising from the contract, where there is no similarity between the

civil servant's relationship with his state and that with the OI. Consequently, the

guarantees established during the exercise of the international function are more like

those of the civil service at the internal state level, unlike the international function. In

addition, the adaptation of the contract has the aim of restricting the UN from developing

the rules of the international civil service

The third opinion, considered to be conciliatory, recommends combining the two opposing

points of view, by considering the relationship between the civil servant and the

organization as an organic and contractual relationship at the same time, and that the

civil servant is subject to the conditions of the contract. The organization gives him more

freedom to face any circumstances that may affect the interests of the organization,

forcing him to modify the terms of the contract

. In our opinion, this point of view cannot

be adopted at the level of international action, because it has not brought anything new

to adapt this relationship. Rather, it combines two antagonisms. For us, we must give

the organization more freedom to adopt the opinion that it considers appropriate to its

own situation and to allow it to amend and even modify the regulations in its own interest,

provided that the necessary guarantees are given regarding the rights of civil servants,

giving them the right to be tried by administrative tribunals created for this purpose

VII. The UN official: Exceptional protection and criminal liability

1. The criminalization of UN officials

The criminal liability of UN officials for the acts they commit, which sometimes constitute

crimes under criminal law, has captured the attention of United Nations Member States,

especially over the past three decades due to the large number of complaints against

UN-affiliated peacekeepers, or even officials and experts of the UN

. In addition, the

issue of accountability was on the agenda of the Sixth Committee of the United Nations

General Assembly at its annual meetings, notably with the release of Prince Zaid's 2006

report, which presented explicitly the question and identified how to address it. Hence

the exceptional importance of this issue due to the fact that it has a significant impact

Dubois, Valerie, supra note 16-25.

Plantey, Alain, supra note 33-78.

Pellet, Alain, et Ruize, David, supra note 5-26.

Bawindsomde, Ouedraogole, supra note 6-416.

Freedman, Rosa, supra note 44-963

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on the reputation of the UN on the one hand, and, on the other, on the reparation of the

victims of these acts

As for the violations committed by the peacekeepers, the truth is that they are increasing

dramatically and exponentially with their wide deployment in various areas of the world,

especially in Africa, the Middle East and in the Balkans. These forces often commit the

crime of sexual rape against the civilians they are supposed to protect. These civilians

were shocked to find that members of these protection forces committed heinous and

degrading crimes.

As for soldiers and officers of international forces, the principle is that they should be

tried in military tribunals belonging to their country, but unfortunately intentional neglect

of complaints from civilian victims has led to the spread of a culture of amnesty. In this

regard, we cite the example of the complaint filed by a Somali citizen accusing these

forces of having destroyed his property in 1992 during their missions in Somalia, known

as the Askar case against Boutros Ghali (former Secretary-General of the United

Nations). His complaint was rejected by the United Nations on the basis of Article 2 of

the 1946 General Convention

The cholera issue in Haiti in 2010 has not changed much so far. The roots of this problem

go back to October 2010, when a cholera epidemic suddenly spread to the world's poorest

country. This happened after Nepalese forces who had just arrived from their country,

Nepal, ranked by the WHO as the third country in the world where the epidemic is raging,

were deployed as part of the peacekeepers. Despite the evidence from medical reports

confirming allegations of the role of Nepalese forces in the spread of cholera, these forces

were not examined prior to their deployment. Unfortunately, the UN has knowingly

neglected the complaints presented by more than five thousand Haitians asking for the

members of these forces to be trialed, especially since their arrival in Haiti, the number

of deaths due to the epidemic exceeded two thousand a day.

In 2013, a UN report on the issue of Haiti concluded that the claims for compensation

from people affected by the epidemic caused by Nepalese forces were unfounded, which

confirmed the conviction of jurists that the UN and its officials enjoyed absolute

immunity, even if this is not stipulated in the 1946 UN Convention on Immunities

. The

same is true of United Nations officials and experts, as their serious violations qualified

as criminal offenses continue in the countries where they are, a fact linked to the

weakness of the legal and judicial systems of countries where they reside

However, this has not stopped them from committing crimes in other stable countries

where rule of law is enforced. Here, the issue goes beyond small offenses or even

manslaughter, but rather theft, rape and other financial crimes. The UN has put in place

mechanisms to reduce these violations, including the internal investigation unit within

the UN itself. When there is a complaint or information regarding the involvement of a

Weiss, Thomas, supra note 34-48.

Freedman, Rosa, supra note 44-966.

Lewis, Patrick (2014). «Who Pays for the UN Torts: Immunity, Attribution, and Appropriate Modes of

Settlement», 39:2 North Carolina Journal of International law and Commercial Regulation 260.

Hovell, Devika (2018). «UN accountable: A Reply to Rosa Freedman», 29:3 European Journal of

International 988.

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UN official or expert in a crime in accordance with the law of the host country, this unit

checks its validity. If it is committed in accordance with the requirements of his work,

there is no liability

What is true, however, is that the officer committed the crime for his own personal gain,

and in this case, UN officials must accept the jurisdiction of the host country's courts to

try him in its domestic courts or accept his extradition to the country of his nationality,

provided that in both cases there is no violation of fair trial standards or of human rights

principles. As for the second mechanism, it consists in referring the person to the United

Nations Dispute Tribunal, which is an organ created by the United Nations as an

alternative to the United Nations Administrative Tribunal, which has two degrees: the

first degree and the appeal. This judicial mechanism has been reserved for the trial of its

officials and experts for the crimes they commit, violations that cannot be qualified as

criminal acts, only as contractual or administrative violations relating to their work

Some of the most significant obstacles to repressing violations committed by United

Nations officials are those related to the fair trial standards we have explained above. If

the two countries do not respect them, what is the solution for the accused official? In

addition, there is no specific definition in criminal laws for sexual crime. This difference

has therefore led to multiple interpretations by countries to define sexual crime, some of

which allow the act and others criminalize it. Besides other objective factors, in particular

the weakness of the judicial institutions in the countries which host these forces and even

of the personnel of the United Nations. The UN is also under pressure from the state of

the perpetrator to prevent his prosecution or hearing in the courts of other countries,

otherwise it will withdraw its forces

2. Functional protection

Public international law establishes for international civil servants a protection similar to

that granted by the states to national civil servants and includes everything that may

affect international civil servants in the exercise of their jobs. The protection exercised

by the UN does not prevent the state of the civil servant’s nationality from exercising

diplomatic protection

This was confirmed by the International Court of Justice (ICJ) in an advisory opinion on

the case relating to compensation for the assassination of Count Folk Bernadotte. The

ICJ had recognized the right of the state of Sweden, of which the Count was a national,

to seek redress for his death from the Israeli government, as well as from the United

Nations, since he was one of its officials. But the Court imposed the condition that this

Freedman, Rosa, supra note 44-967.

Klabbers, Jan, supra note 7-14.

Freedman, Rosa, supra note 44-971.

Freedman, Rosa (2014). «UN Immunity or Impunity? Human Rights Based Challenge», 25:1 European

Journal of International 242.

The Rules on the Staff Regulations of the West African Economic and Monetary Union provide in Article 20

that the staff member is entitled to the protection of the Union in the exercise of his functions and that the

terms and conditions of this protection are defined by implementing regulations for these Rules. See: Fouda,

Guillaume, supra note 21-12.

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does not result in double compensation for the same act or damage, which is a stable

rule from a criminal point of view

On the other hand, nothing in public international law indicates which state or

organization has priority in the exercise of functional protection and, therefore, in the

compensation thereof. However, jurisprudence provides a theoretical solution to the

problems that may arise in this regard. The Organization and its Member States can enter

into agreements to resolve these issues

In our opinion, granting the organization the right to exercise its protection on behalf of

its officials, in the event of problems or harassment in the course of their work or even

when they suffer prejudice, deserves to be taken into account so that the Organization

can perform its task in the best possible way, especially given the complexity of the tasks

conducted

Conclusion

We have discussed the issue of disagreement over the definition of the international civil

servant and the possibility of including all employees of the international organization.

Supporters of the idea of including all employees in this term have found support in the

jurisprudence of the ICJ. With regard to the appointment of an international civil servant

within an international organization, we can make a clear distinction between the

international civil service and the national one, which is reflected in the nature of the

sanctions imposed on each and by the weakness or the strength of the official's affiliation

with the organization or state where he operates.

Regarding the independence of the organization in the selection of candidates, this often

becomes fictitious because of the strong pressure exerted by large states, either by direct

pressure on senior officials of the organization, or through internal legislation that

restricts the process of selecting citizens in the international organization.

The result of this intervention is that appointees favour the policies of their governments

over organizational representation, which undermines the performance of the

organization at all levels and prevents it from moving forward.

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