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59. On 1 January 1953, the Internal Security Sub-Committee released to the Press a memorandum from the Department of State which contained a list of names of United Nations staff members on whom the Department had made "adverse comments". Twentyseven of these persons were no longer employed at that time by the United Nations, while eleven were still members of the Secretariat. Since then four of the eleven have left the Secretariat by resignation, retirement or termination.

60. On 2 January 1953, the Internal Security Sub-Committee submitted a report on activities of United States citizens employed by the United Nations to the Senate Committee on the Judiciary.1 This report recommended "that procedures be devised for giving the greatest possible degree of assurance that any and all information respecting the loyalty of any American citizen employee of an international organization be communicated to the proper authorities of the organization". It was also recommended that legislative safeguards should be established to prevent future employment by international organizations located in the United States of "American nationals of questionable loyalty to the United States", and that an arrangement should be made under which information concerning the records of all American applicants for employment should be submitted to international organizations "so that the security of the United States may be protected". The Sub-Committee also recommended "that the Senate reassert and take effective steps to implement its inherent power to compel the production of documents and information which it needs in the proper performance of its functions, and to punish for contempt".

61. On 7 January 1953, a Bill was introduced in the United States Senate (S. 3-83rd Congress, 1st session), the sponsor of which stated that it was designed to implement the recommendations of the Senate Sub-Committee with respect to this matter. The text of this Bill will be found in annex IV.2

(5) Opinion of the Commission of Jurists

62. Confronted by grave problems arising from the charges and investigations, the Secretary-General decided on 22 October 1952 after full consideration to appoint an international commission of jurists to advise him on the action he should take to meet the situation. He asked them to advise him on the five following specific questions: (i) Is it compatible with the conduct required of a staff member for him to refuse to answer a question asked by an authorized organ of his government on the ground of the constitutional privilege against self-incrimination?

(ii) What effect should be given by the Secretary-General to the

1 Report of the Sub-Committee to Investigate the Administration of the Internal Security Act and other Internal Security Laws, to the Committee on the Judiciary, United States Senate, Eighty-Second Congress, Second Session, on activities of United States citizens employed by the United Nations, 2 January 1953 (United States Government Printing Office, Washington, D. C., 1953). (Footnote in original.) 2 Not reprinted here.

refusal of the United States Government to issue a passport to a staff member for purposes of official travel?

(iii) In view of the Charter requirements and the Staff Regulations, what action should the Secretary-General take when he receives information from an official source of the United States Government that a staff member of United States citizenship is alleged to be disloyal to his government?

(iv) In the course of inquiries by agencies of the United States Government, should the Secretary-General make available archives of the Organization or authorize staff members to respond to questions involving confidential information relating to official acts?

(v) If it appears that the Secretary-General possesses no present authority to dismiss holders of permanent appointments on evidence of subversive activities against their country or refusal to deny such activities, what new legal steps would be necessary and effective to confer such authority?

63. The Commission began to meet in the following month and presented its opinion to the Secretary-General on 29 November 1952 (annex III). On 5 December 1952, the Secretary-General informed the governments of Member States that he had made the following statement to the staff concerning the opinion of the Commission of Jurists:

"On 23 October 1952, I announced that I would submit to a group of jurists from three Member countries, for advice, certain issues arising out of the hearings of the United States Senate Sub-Committee on Internal Security. The Commission of Jurists met for the first time on 14 November, and presented its opinion to me on Saturday, 29 November.

"I am very grateful to the jurists for having dealt so thoroughly within a very short time with the complicated and important problems submitted to them.

"I have carefully studied the opinion they have presented. I have decided to use the conclusions and recommendations of this opinion as the basis of my personnel policy in discharging the responsibilities entrusted to me by the Charter and Staff Regulations of the United Nations.

"In pursuance of the recommendation of the jurists, I propose to establish within a few days an advisory panel to assist me in dealing with specific cases in accordance with the opinion.

"It is my earnest hope that on this basis it will be possible for the United Nations and the host country by mutual efforts to maintain harmonious relationships on matters affecting the staff of the Secretariat which, in the words of the opinion, 'depend mainly upon a good understanding as to the necessities of the international organization and its staff on the one hand, and the necessities of the host country on the other'."

64. It was in relation to the five specific questions he had asked that the Secretary-General accepted the conclusions and recommenda

1 Not reprinted here.

tions of the jurists. This did not mean that the Secretary-General accepted all the arguments in the opinion or all the implications that might be drawn from it. In a statement made on 16 December 1952 to the Fifth Committee on behalf of the President of the General Assembly, the Secretary-General and himself, the Chairman of the Fifth Committee declared that the Secretary-General "did not bind himself to every argument or every single word contained in the opinion".

(6) Personnel actions taken by the Secretary-General

65. While awaiting the report of the jurists the Secretary-General had in the meantime taken such action as he considered was clearly within his authority. Temporary employees who had invoked the privilege against self-incrimination during the hearings of the United States Senate Internal Security Sub-Committee and with respect to whom the Secretary-General had subsequently received additional confidential information from reliable sources, were dismissed on the ground that their employment was no longer in the interest of the United Nations. Those staff members with permanent appointments who had refused to answer questions on the ground of the privilege of self-incrimination were placed on compulsory leave. On 5 December, acting on the basis of the jurists' opinion, the Secretary-General terminated the permanent staff members who had pleaded the privilege after first giving them an opportunity to change their minds about testifying. In his letters of termination the Secretary-General

wrote:

"On 1 December 1952, I sent you a copy of the opinion of the Commission of Jurists which was submitted to me on 29 November 1952, and told you of my decision to accept the recommendation of the Commission to the effect that a person who has refused to answer such questions is unsuitable for continued employment by the United Nations.

"In my letter I stated that unless I was informed by noon yesterday that you had notified the appropriate United States authorities of your intention to withdraw the plea of privilege and answer the pertinent questions put to you, I would be compelled to take action in your case in accordance with the recommendation of the Commission of Jurists.

"Since your letter of . . . does not so inform me, I have decided that your action constitutes a fundamental breach of the obligations laid down in Staff Regulation 1.4 and that you are unsuitable for continued employment in the Secretariat”.

(7) Executive Order of the President of the United States dated

9 January 1953

66. On 9 January 1953, the President of the United States issued Executive Order 10422 (18 F.R. 239), "prescribing procedures for making available to the Secretary-General of the United Nations certain information concerning United States citizens employed or

being considered for employment on the Secretariat of the United Nations" (reproduced as annex V).1

67. Though the Secretary-General was kept informed of developments in connexion with the preparation of the Executive Order, there was no question of bilateral negotiation or of acceptance by the Secretary-General of its provisions, as he considered that the matter was an internal one for the United States authorities. The Secretary-General, however, considered the issuance of the Order a progressive step toward making adequate information available to him and stated to representatives of the United States Mission to the United Nations and of the United States Civil Service Commission that he was ready to co-operate in providing United States authorities with the identification information necessary to enable them to carry out the Executive Order.

68. The text of the Executive Order was transmitted to the Secretary-General by a letter dated 9 January 1953 from the Permanent Representative of the United States. This letter stated as follows:

"I have the honor to advise that I have been requested by the Secretary of State to inform you of the issuance of an Executive Order 'prescribing procedures for making available to the SecretaryGeneral of the United Nations certain information concerning United States citizens employed or being considered for employment on the Secretariat of the United Nations,' signed by the President of the United States on 9 January, 1953. A copy of the Order is enclosed.

"The Executive Order is intended to enable the Government of the United States to do all that it properly can to assure the achievement of the mutual objective of the Secretary-General and the United States to assure that the United Nations shall not employ or continue in its employment United States citizens who are engaged, have been engaged, or are likely to be engaged in any subversive activities against the United States.

"My Government wishes to initiate at once the procedures provided by the Order, and its representatives would like to work out the details of the necessary arrangements with your designees at their earliest convenience. In the meantime, my Government requests that appointment action be withheld on any pending appointments of United States citizens.

"It is to be hoped that this action by the President of the United States will be accepted as further evidence of the importance which this Government attaches to the United Nations as an instrument for the promotion of international peace and security, and of its desire to strengthen the United Nations so that it can fulfil the purposes of the Charter effectively in accordance with its principles".

1 Not reprinted here.

69. On 14 January 1953, the Secretary-General replied as follows to the Permanent Representative of the United States:

"I have the honour to acknowledge the receipt of your letter of 9 January 1953, enclosing a copy of an Executive Order signed by the President of the United States on that date relating to United States citizens employed or being considered for employment in the Secretariat of the United Nations. I appreciate your action in informing me of procedures being adopted by your Government for making available to me information concerning these persons.

"In this connexion I have particularly noted the reaffirmation in the Executive Order of the principle of the independence of the Secretary-General and his sole responsibility to the General Assembly of the United Nations for the selection and retention of staff. I have also noted that, under the procedure prescribed, individuals with respect to whom there are adverse comments will be afforded the opportunity of hearings and review before United States agencies on the basis of the standards set forth in the Executive Order.

"In accordance with your request, I have instructed members of my staff to engage in preliminary discussions with your representatives concerning the practical application of the Order. As you are aware, I am preparing for the consideration of the General Assembly at the second part of its seventh session a comprehensive report on personnel policy, which will contain all relevant documents including the Executive Order of 9 January 1953.

"It is my earnest hope that the procedure prescribed by the Order will contribute to a solution of problems involving American citizens in the United Nations Secretariat who have been the subject of recent enquiry and discussion".

70. Procedures for supplying the United States Government with the necessary identification information concerning United States citizens employed or being considered for employment on the Secretariat of the United Nations have since been put into effect.

(8) Appointment of the Secretary-General's Advisory Panel 71. On 16 January 1953 the Secretary-General announced the appointment of the members of the Advisory Panel proposed by the Commission of Jurists. The Chairman of the Panel is Mr. Leonard W. Brockington, Q.C., LL.D., of Canada, appointed in his individual capacity. The appointment of an alternate chairman to serve in the absence of the Chairman will be announced shortly. The members of the Panel will be as follows: Mr. Ralph Bunche, Principal Director, Department of Trusteeship and Information from NonSelf-Governing Territories; Mr. Tor Gjesdal, Principal Director, Department of Public Information; Mr. Gustavo Martinez-Cabañas, Deputy Director-General, Technical Assistance Administration; and Mr. Constantin A. Stavropoulos, Principal Director in charge of the Legal Department.

72. The Panel's detailed terms of reference will be established after the General Assembly has dealt with the question of personnel policy

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