Judgment No. 14
Complaint No. 19
Isabel Chaly Caserta v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,
Composed of Mozart Víctor Russomano, President; Alejandro Tinoco, Vice President; and John L. A.
de Passalacqua, Judge,
Has before it for judgment the proceedings on the complaint filed by Isabel Chaly Caserta against the
Secretary General of the Organization of American States.
The Complainant was represented by Francis X. McLaughlin, attorney, and the Secretary General by
F. V. García-Amador, Director of the Department of Legal Affairs, and by José Ignacio Tremols,
attorney of the same department, all in conformity with Article 20 of the Rules of Procedure of the
Tribunal.
WHEREAS:
I. On September 24, 1974, the attorney for the Complainant filed a complaint against the
Secretary General, as authorized by the Statute of the Tribunal. After complying with the
requirements as to the personal and official status of the Complainant, he went on to explain the
events that had given rise to the complaint, and in this regard stated:
That the Complainant entered the General Secretariat of the Organization as a member of the
international career service in 1962.
That at the end of 1973 she requested the Director of the Office of Personnel to keep her in mind
in the selection for the post of Executive Secretary of the Inter-American Commission of Women,
grade P-4, which was announced by Vacancy Announcement No. 1218-73 of November 14, 1973.
That the Advisory Committee on Personnel recommended the Complainant for the position of
Executive Secretary of the Inter-American Commission of Women.
That the Assistant Secretary General, in charge of the General Secretariat in the absence of the
Secretary General, rejected the recommendation of the Advisory Committee and appointed Sonia
Roca to the position. At the time the selection was made, Miss Roca was working in the General
Secretariat on a short-term contract and had less than a year of service in the Organization.
That, unlike the Complainant, Miss Roca did not meet the requirement in the Vacancy
Announcement concerning command of the English language.
That when the appointment was denied her, the Complainant presented a request for
reconsideration. The decision of the Advisory Committee on Reconsideration endorsed the
appointment of Miss Roca, principally on the basis that the Secretary General has the authority to
make appointments.
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That the Complainant has included the Assistant Secretary General in this complaint because she
understands that he advised, recommended, and supported the candidacy of Miss Roca, and also
because, in the absence of the Secretary General, he actually appointed Miss Roca to the position of
Executive Secretary of the Inter-American Commission of Women.
That the Chairman of the Advisory Committee on Reconsideration that heard the Complainant's
case is an intimate friend of the Assistant Secretary General and had been his assistant when both
were employed at the Inter-American Development Bank.
That even though the Assistant Secretary General was not a member of the Advisory Committee
on Reconsideration, he was the official who appointed Miss Roca, and this circumstance should have
disqualified the Chairman of the Advisory Committee on Reconsideration, as a personal friend and
former assistant of his when both were employed at the IDB.
That the Complainant bases this complaint on her rights under Article 119 of the Charter, which
provides that "the Secretary General shall exercise this authority in accordance with such general
standards and budgetary provisions as may be established by the General Assembly." The Secretary
General and the Assistant Secretary General failed to exercise their powers in accordance with
articles 17 and 38 of the General Standards, and in fact they ignored and denied the Complainant the
rights set forth in these articles.
That in the appointment of Miss Roca there has been a failure to comply with Article 38 of the
General Standards, which establishes that in filling a vacancy "preference shall be given, other
conditions being equal, first to the personnel of the international career service and second to the
other staff members. . . ."
That the Complainant prays the Tribunal to nullify the decision appointing Sonia Roca as
Executive Secretary of the Inter-American Commission of Women and to restore the rights of the
Complainant, as provided for in the Charter, the General Standards, and the Staff Rules.
That, alternatively, she prays the Tribunal to order that the Secretary General appoint her to a
comparable position or to reclassify her present position to grade P-4 and to pay her the salary
applicable to that grade retroactive to March 12, 1974.
That she further prays the Tribunal to order the Secretary General to pay her an indemnity of
US$25,000, plus attorney's fees and other costs of this action.
II. On October 30, 1974, the Secretary General answered the complaint and stated:
That Article 119 of the Charter of the Organization confers upon the Secretary General, inter
alia, the power to appoint members of the staff of the General Secretariat. This provision, as can be
seen from its own text, is regulated but not restricted or impaired by articles 17 and 38 of the General
Standards to Govern the Operations of the General Secretariat and by the administrative provisions on
the matter that have been issued by the Secretary General himself, such as those contained in Chapter
IV of the Staff Rules, particularly in Rule 104.1, and in Executive Orders Nos. 69-8 and 70-1. To
claim the contrary would be to ignore the fact that, by virtue of Article 119(b) of the Charter and the
pertinent provisions of the General Standards, particularly Article 38, the Secretary General exercises
an exclusive and discretionary power in the appointment of members of the General Secretariat staff.
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That Article 38 of the General Standards establishes a preference in favor of members of the
international career service, which depends upon the existence of equal conditions between the
candidates. It also depends upon the decision made in this respect by the Secretary General, who is
empowered by the last part of Article 38 to decide whether the applicants have the requisite
qualifications for the position.
That at no time was Article 17 of the General Standards violated, because, as the Complainant
herself admits, the position was open to competition, and the Advisory Committee on Personnel was
convoked and acted in accordance with the applicable provisions. Moreover, from a reading of the
documents presented by Mrs. Caserta, which she calls appendixes A and E, it is evident that the
provisions of Article 17 were complied with throughout.
That, in accordance with Executive Orders Nos. 69-8 of August 25, 1969, and 70-1 of July 8,
1970, and Staff Rule 104.1, the Advisory Committee on Personnel exercises only an advisory
function, and the Secretary General is not bound to follow its views and recommendations in making
his decisions on staff appointments.
That the Secretary General, in exercising in this case the power conferred upon him by Article
119 of the Charter and Article 11(b) of the General Standards, did so on the basis of the following
considerations:
a. The views expressed by the Advisory Committee in the summary minutes of its fourth meeting,
held on March 16, 1974.
b. The fact that the Committee's recommendation was based only on criteria of the international
career service and on Article 17(b) of the General Standards, even through, because the background
and experience of the two candidates were different, Article 38 of the General Standards was
applicable. Therefore, it was essential to examine these differences in background and experience, in
order to determine whether or not the conditions were equal.
c. The fact that the professional staff of the Executive Secretariat of the Inter-American Commission
of Women is composed of three staff members, and two of them, the Assistant Executive Secretary
and the special assistant, are from the United States. Hence, had the Complainant been appointed, the
principle of geographic representation expressly set forth in Article 126 of the Charter and Article 35
of the General Standards would have been violated.
That the Secretary General, after carefully studying the background of the two candidates,
decided that Miss Roca was more highly qualified than the Complainant and that, consequently,
conditions between them were not equal. For this reason, it was proper to give preference to Miss
Roca since, in the Secretary General's opinion, she was the one more suited for the position.
That all the applicable regulations concerning personnel selection and appointment have been
fully complied with, and the decision to appoint to the position a candidate other than the
Complainant was based strictly on the discretionary power that Article 119 of the Charter and Article
38 of the General Standards confer on the Secretary General to fill vacancies in the General
Secretariat, because it is up to the Secretary General alone to decide whether the candidates meet the
qualifications to fill a position and whether there is equality of conditions between them.
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That it is untrue that the Chairman of the Advisory Committee on Reconsideration that heard the
Complainant's request for reconsideration is an intimate friend of the Assistant Secretary General of
the Organization. The reasons for self-disqualification established in Article 8 of the Rules of
Procedure of the Tribunal are not applicable to the reconsideration procedure, because this procedure
was governed at that time by Staff Rule 111.3, not by the Rules of Procedures of the Tribunal.
That the appointment of Miss Roca was made by the Assistant Secretary General, acting as
Secretary General in the latter's absence and in exercise of the duties inherent to him, in accordance
with the last part of the first paragraph of Article 121 of the Charter of the Organization.
That Miss Roca's supposed lack of fluency in the English language is without a doubt irrelevant,
because this was not and is not the only or the most important of the qualifications required for the
position of Executive Secretary of the Inter-American Commission of Women.
That the Complainant's petition to the Tribunal that it order the Secretary General to appoint her
to a position equivalent to that of Executive Secretary of the Inter-American Commission of Women
is absolutely improper, because such an appointment does not depend upon a decision of the Tribunal
but exclusively upon the qualifications of the staff member and on the requirements for holding this
equivalent position, assuming that it exists or is available. A reclassification of the Complainant's
current post to grade P-4 is subject to whether there have been substantial changes in its duties, the
nature of its functions, and the degree of responsibility involved.
III. On November 26, 1974, the Complainant, in accordance with Article 13.3 of the Rules of
Procedure of the Tribunal, presented her reply to the Secretary General's answer, and in this regard
stated:
That only the Secretary General has responded to the complaint; the other named parties, the
Assistant Secretary General and the Chairman of the Advisory Committee on Reconsideration, seem
to have chosen not to do so.
That in the Secretary General's answer it is suggested that Article 119 of the Charter grants the
Secretary General unfettered power in naming staff members to the General Secretariat. This position
is untenable because it ignores the final paragraph of Article 119, which reads: "The Secretary
General shall exercise this authority in accordance with such general standards and budgetary
provisions as may be established by the General Assembly."
That in applying Article 38 of the General Standards, the Secretary General must recognize that
it was enacted for the purpose of giving preference to international career servants in filling
vacancies.
That the final paragraph of that article explains that members of the international career service,
such as the Complainant, need only have "the requisite qualifications for the position," which the
Complainant obviously has.
That the principle of geographic representation referred to in Article 126 of the Charter and cited
in the Secretary General's answer should be applied only after consideration is given to efficiency,
competence, integrity, and so on, and is therefore restricted to the recruitment of personnel. The
procedure referred to in this complaint does not involve recruitment; it involves the filling of a
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vacancy from among candidates who are already working in the OAS. The filling of vacancies from
within the OAS presents an entirely different situation, which is governed by articles 38 and 17 of the
General Standards.
That she respectfully prays the Tribunal to call Miss Roca and others to appear as witnesses.
That she repeats the other petitions in the original complaint and specifically prays, in
accordance with Article 27 of the Rules of Procedure of the Tribunal, that a representative of the Staff
Association be heard in this case.
IV. On December 17, 1974, the representative of the Secretary General presented his response to
the Complainant's reply, and in this regard stated:
That in insisting in her reply brief that the Secretary General should have appointed her, the
Complainant is unaware of or disregards the very broad discretionary power granted to the Secretary
General in the last sentence of Article 38 of the General Standards, whereby he is authorized to
determine whether the candidates have the requisite qualifications to fill a vacancy that is being
applied for both by members of the international career service and by persons who are not members
of that service but who do work in the General Secretariat.
That the Complainant's argument that career service staff members "need only have the requisite
qualifications" is contrary to the standard established in Article 38 of the General Standards, which
clearly provides the opposite, that is, that preference shall be given to the career staff member only if
other conditions are equal between that staff member and the candidate who is also a member of the
staff but not of the career service.
That in the opinion of the Advisory Committee on Personnel, both Miss Roca and the
Complainant were capable, intelligent women and both would serve well in the position. Since the
Committee believed that there were differences of background and experience between the two
candidates, it was necessary to examine these differences for a correct application of Article 38 of the
General Standards. This is precisely what the Secretary General did in exercising the discretionary
power conferred upon him by Article 38.
That an objective comparison of the background and experience of the two candidates could
only lead the Secretary General to conclude that the differences between them were too significant for
him to ignore, in view of the provisions of Article 38.
That Miss Roca is performing her duties efficiently.
That, with reference to the Complainant's arguments about the principle of geographic
representation, the Secretary General wishes to emphasize that that principle was no more than a
contributing factor, and that at no time did it constitute the basis for his decision not to appoint the
Complainant.
That the Secretary General reaffirms all the statements made in his answer of October 30, 1974.
V. On February 7, 1975, in accordance with Article 14.2 of the Rules of Procedure of the
Tribunal, this case was placed on the list of matters pending consideration. Once the President had set
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the opening date for the sessions for the second quarter of the current year, the pertinent steps were
taken. In accordance with Article 8.2 of the Rules of Procedure, John L. A. de Passalacqua
disqualified himself from hearing the case. After the self-disqualification was considered in
accordance with the pertinent regulations, it was rejected and the Tribunal was therefore composed by
Mozart Víctor Russomano, President; Alejandro Tinoco, Vice President; and John L. A. de
Passalacqua, Judge. It met as scheduled, deliberated on the case sub judice, and decided that, in
accordance with Article 17 of the Rules of Procedure, it would take the testimony offered and hold
the oral proceedings requested by the Complainant on June 9, 1975, at 10:00 a.m.
The hearing for the taking of testimony opened on the date and at the time indicated. It continued
in the afternoon of the same day and concluded the next morning, when the oral precedings were also
held, as the record shows.
The Tribunal then decided that further evidence, as provided for in Article 17.1 of its Rules of
Procedure, was not necessary, subject to the possibility of later ordering any action it might consider
useful for properly deciding the case, in accordance with Article 16.
In accordance with Article 25 of the Rules of Procedure, the Tribunal designated Alejandro
Tinoco to draft the judgment.
Having examined the proceedings, the Tribunal now
CONSIDERS:
I. COMPETENCE OF THE TRIBUNAL
That it is competent to hear the present complaint, pursuant to Article II of its Statute.
II. REGULATIONS RELATED TO THE COMPLAINT
1. The fundamental regulation governing the situation of vacancies is that established in Article
38 of the General Standards to Govern the Operations of the General Secretariat, approved by the
General Assembly of the Organization at its second regular session, held in 1973.
2. Article 119 of the Charter of the Organization of American States, which confers upon the
Secretary General the authority to appoint officers and employees of the General Secretariat, is
necessarily regulated by Article 38 of the General Standards and others concerned with the matter,
since Article 119 provides that " . . . The Secretary General shall exercise this authority in accordance
with such general standards and budgetary provisions as may be established by the General
Assembly."
3. Moreover, Article 17(b) of the General Standards is necessarily subject to a provision that this
Tribunal has called a "fundamental" guideline in this case, since Article 17 is a general rule that
establishes principles to govern the international career service and Article 38 is a special rule
applicable to the filling of vacancies.
4. An essential complement to the foregoing regulations are those in Staff Rule 104.1, since
repealed but in force at the time of the events that gave rise to the present complaint. These
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regulations establish procedures for the recruitment and selection of personnel of the General
Secretariat and in particular for the action of the Advisory Committees.
5. The facts presented by the Complainant and the legal consequences she infers from them must
be examined in the light of the bodies of rules mentioned. These are as follows, in order of
precedence:
a. A constitutional standard that serves as the foundation, which is established by Article 119 of the
Charter of the Organization of American States;
b. A regulatory standard that we have called fundamental in this specific case, which is contained in
Article 38 of the General Standards to Govern the Operations of the General Secretariat of the
Organization;
c. A standard of the same kind as the preceding one, but of secondary applicability in this case, which
is contained in Article 17(b) of the General Standards to Govern the Operations of the General
Secretariat;
d. Some internal regulations, established in the Staff Rule 104.1 that were in force at the time of these
events.
III. FACTS OF THE COMPLAINT
In analyzing these bodies of rules and relating them to the facts presented, we find the following
situations:
1. In accordance with Article 119 of the Charter, Article 17 of the General Standards, and Staff
Rule 104.1, the Secretary General started the procedure for the appointment of the Executive
Secretary of the Inter-American Commission of Women, a vacant position.
2. In accordance with Staff Rule 104.1, the Advisory Committee on Personnel issued its opinion
and sent its recommendation to the Secretary General.
3. The Secretary General, in the exercise of the powers conferred upon him by Article 119 of the
Charter and Article 38 of the General Standards, decided that the position should be assigned to Sonia
Roca because in his judgment she was better qualified than the Complainant. In this respect, the
Administrative Tribunal is of the opinion that, correctly interpreted, Article 38 of the General
Standards in fact empowers the Secretary General to decide for himself whether or not there is
equality of conditions in the case of two or more candidates for a position. This Tribunal is also of the
opinion that the preference granted to international career service personnel by that article is subject
to the existence of equal conditions between the candidates. Consequently, if the Secretary General
thinks that one of the competitors is better than the others in conditions and qualifications, he may
give the position to whoever, in his sole judgment, has the qualifications that create the inequality of
conditions. In so doing, he is not bound by any recommendation made by the Advisory Committee on
Personnel, since the nature and functions of this body are purely and simply advisory. Hence,
regardless of the opinion of the Advisory Committee and even in opposition to it, the Secretary
General may make the appointment when he finds an inequality of conditions that makes one of the
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candidates superior to the others and renders inapplicable the preference accorded by Article 38 of the
General Standards to members of the international career service.
On the other hand, although it is true that only the Secretary General has the authority to make
this judgment, this Tribunal considers that when a candidate succeeds in demonstrating, in an appeal
to the Administrative Tribunal, that the Secretary General's evaluation is inaccurate--that there is no
inequality of conditions that would justify eliminating the preference granted by Article 38 of the
General Standards, together with Article 17(b), to members of the international career service--it has
a specific duty, assigned to it in Article VII of the Statute, to order "that the right of the Complainant .
. . be restored." Of course, it will be up to the Complainant to provide sufficient proof of his claim, in
accordance with the principle of legal procedure that "the burden of proof rests with the plaintiff."
4. In examining the appointment made by the Secretary General, the Advisory Committee on
Reconsideration considered that it was improper to recommend to the Secretary General that he
change his decision.
IV. THE FACTS IN THE LIGHT OF THE RELEVANT LAW
Having examined the record in the light of the applicable regulations, this Tribunal considers it
of vital importance to interpret the standard that we have called fundamental in this case in relation to
the facts that have been alleged and proved.
Article 38 of the General Standards to Govern the Operations of the General Secretariat reads:
In filling a vacancy, preference shall be given, other conditions being equal, first to the personnel of
the international career service, and second to the other staff members. The Secretary General shall
determine whether the candidates have the requisite qualifications for the position.
This standard contains the following implications:
1. Members of the international career service have priority in obtaining positions when they are
competing with persons who do not belong to that service.
2. For this priority to operate, there must be equality of conditions between the candidate who is a
member of the international career service and the one who is not.
3. The Secretary General has the authority to decide whether the applicants meet the necessary
conditions to hold the position.
The criterion supported by this Tribunal has already been expressed in this Judgment: that
whether the conditions are equal or unequal must be evaluated by the Secretary General according to
his own judgment, but that if a Complainant can show that the inequality of conditions resulting from
that evaluation is not sufficient to offset the preference assigned to members of the international
career service, the Tribunal may restore the Complainant's right in any manner it deems appropriate
(Article VII of the Statute of the Tribunal).
Thus the present dispute centers on whether the Complainant has been able to demonstrate
during the process that there is no inequality of conditions that could justify the failure to give her the
priority referred to in Article 17 of the General Standards in the following terms: "The international
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career service . . . shall be governed by the following principles, among others: . . . (b) preferential
consideration to members of the international career service . . . to fill vacancies. . . . "
To determine whether there has been enough evidence of this, the Tribunal has carefully
analyzed the briefs of the parties and their appendices, the testimony of the witnesses, and the oral
arguments. It has given particular importance to an analysis of background and experience based on
the documents considered by the Secretary General, as established in his response.
V. COMPARISON OF BACKGROUNDS WITH THE VACANCY ANNOUNCEMENT
In analyzing the candidates' background and experience, as presented by the Secretary General
in his response, it is very important to compare this analysis with Vacancy Announcement No.
1218/73, which governs the applications to be presented by the candidates, in accordance with Staff
Rule 104.1(b) in force at that time. Having analyzed and compared the two applications presented, we
make the following observations:
1. Sonia Roca has some background and experience that places her at an advantage over the
Complainant, such as her two years of study of the School of Diplomacy of the University of
Guayaquil and one year of study of international organizations at the same university. This
background more adequately meets the minimum requirements of paragraph 1 of the Vacancy
Announcement, concerning university education and training in international affairs, than do the
qualifications listed for Isabel Chaly Caserta.
2. Similarly, with respect to paragraph 2 of the minimum requirements called for in Vacancy
Announcement No. 1218/73, in the judgment of this Tribunal Miss Roca's background and
experience are better than those offered by Isabel Chaly Caserta. This paragraph refers to experience
in legal and social sciences and international affairs, and Miss Roca has more experience than Mrs.
Caserta in the practice of law and in contacts with associations concerned with international affairs,
e.g., in her position as vice president of the Association of the School of Diplomacy.
3. In contrast, with regard to paragraph 3 of the minimum requirements, which refers to
"administrative experience, preferably in the organization and holding of international meetings," this
Tribunal is of the opinion that the Complainant's administrative experience, as set forth in the answer
of the Secretary General, is significantly more valuable than that of Miss Roca, in that the
Complainant has held several administrative positions in the General Secretariat of the Organization
of American States since 1962, which have led her to attend a number of international and interAmerican meetings.
4. Similarly, and for the same reasons, this Tribunal is of the opinion that, with respect to
paragraph 4 of the minimum requirements, which refers to knowledge of the nature, purposes,
principles, structure, and functioning of the Organization of American States and, in particular, of the
characteristics of the Inter-American Commission of Women, the Complainant has more background
and experience than Miss Roca. Furthermore, she has the added advantage that for six months she
served as Alternate Executive Secretary of the Inter-American Commission of Women, as is
expressly stated in the Secretary General's answer. This, incidentally, is one of the grounds for
"special consideration" in promotions, as established in Rule 104.11(b) of the Staff Rules in force at
the time, which reads:
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(b) . . . In addition, special consideration shall be given staff members in the following instances:
(i) When a staff member has been acting in a temporary capacity or has been in the training level of
the position.
Finally, with regard to paragraph 5 of the minimum requirements, referring to "command of
Spanish and English and ability to understand French and Portuguese," this Tribunal has concluded
that the Complainant has an advantage in this area also.
From an analysis of the Secretary General's answer in comparison with the minimum
requirements for the position, this Tribunal has concluded that the General Secretariat lacks sufficient
grounds to establish an inequality of conditions in favor of Miss Roca that would justify a departure
from the principle of preference for candidates who belong to the career service.
The Tribunal wishes to make clear that its evaluation of the background and qualifications of the
two candidates for the position refers only to conditions as they existed on the date of the Secretary
General's decision in favor of Miss Roca.
VI. SUMMARY OF DOCTRINE
The Tribunal wishes to summarize this doctrine as follows:
1. The spirit of the regulations analyzed is that, other conditions being equal, personnel of the
international career service have priority in filling vacant positions.
2. When there are candidates who belong to the career service and candidates who do not, and
the conditions are unequal, the position may be given to the person who is best qualified.
3. In the administrative sphere only the Secretary General has authority to determine the equality
or inequality of conditions.
4. However, a candidate who is a member of the international career service may demonstrate in
litigation that there is no inequality of conditions that would justify a failure to apply the principle of
priority for career service personnel in obtaining vacant positions.
Similarly, a candidate who is not in the career service or who has no employment relationship
with the Organization of American States may make use of the same right, to demonstrate that an
inequality of conditions does exist to justify nonapplication of the principle of priority.
5. If the Tribunal considers this evidence sufficient, it will restore the Complainant's right, in
accordance with its Statute.
6. In the opinion of the Tribunal, it is evident from the briefs of the Secretary General, the other
briefs, and the evidence presented during the proceedings that the record shows no inequality of
conditions in favor of the non-career candidate, in this case Miss Roca, to prevent the application of
the preference granted in principle to career service personnel by the General Standards. (Miss Roca
appeared only in the capacity of a witness, at the request of the Complainant, and did not make use of
her right under Article 22.1 of the Rules of Procedure of the Tribunal to intervene as a third party in
defense of her rights.)
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VII. ADDITIONAL CONSIDERATIONS
1. In his answer to the complaint, the Secretary General claims that the staff of the Executive
Secretariat of the Inter-American Commission of Women consists of six staff members, three in the
professional category and three in the general services category, and that of the first three, two are of
U.S. nationality. Thus, had the Complainant been appointed, the entire professional staff of the
Executive Secretariat of the Inter-American Commission of Women would have been from the
United States, which is contrary to the principle of geographic representation set forth in Article 126
of the Charter and Article 35 of the General Standards.
From an analysis of these articles it can be seen that the criterion of geographic representation
required by the Charter of the Organization of American States is to be viewed as a desideratum -that there should be "as wide a geographic representation as possible." From this we may conclude
that personnel "at all ranks" are supposed to be recruited under this principle.
It is the expression "as wide a geographic representation as possible" that leads this Tribunal
once again to think that the application of geographic representation is secondary to the provision of
Article 38 of the General Standards that vacancies should be filled, first of all, by personnel of the
international career service. This principle must prevail over the idea of geographic representation,
since, as has been said, the intent of the regulations examined is already that the main emphasis in
selection should be on priority for personnel in the international career service.
2. The Complainant prays the Tribunal to order the Secretary General and others to honor the
spirit of the provisions on self-disqualification in Article 8 of the Rules of Procedure of the Tribunal.
In this regard, the Tribunal has decided on previous occasions that it is not within its functions to
intervene in the administrative regulations governing the activities of the General Secretariat, unless a
violation of these regulations causes injury to a staff member's rights. In the judgment of this
Tribunal, this has not occurred in the matter on which this specific petition of the Complainant is
based.
3. This Tribunal considers unwarranted the indemnity of US$25,000 requested by the
Complainant, since it believes that, as the Secretary General stated several times in his briefs, he
considered the difference between the two candidates to be important and chose the one who in his
judgment was the better qualified. In view of the Secretary General's conviction, and of the fact that it
resulted from a comparison of the two applicants' files, the Tribunal does not consider that the penalty
of an indemnity is in order. The appointment was made on the basis of an evaluation grounded on a
comparison of the two files, and the Respondent cannot be accused of negligence or fraud in his
interpretation.
4. The Tribunal also finds that the claim against the Assistant Secretary General, on the ground
that it was he who appointed Miss Roca to the position, is absolutely inadmissible. When he did so,
he was acting in his capacity as Assistant Secretary General, in charge of the General Secretariat, and
Article 121 of the Charter of the Organization of American States provides as follows: "During the
temporary absence or disability of the Secretary General, the Assistant Secretary General shall
perform his functions." Therefore, it is improper to make a claim against the Assistant Secretary
General at the same time that a claim is being made against the Secretary General, as in this case.
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By virtue of the foregoing, the Tribunal unanimously
RESOLVES:
1. To rule that the appointment of Sonia Roca is contrary to the spirit of the regulations
contained in the General Standards to Govern the Operations of the General Secretariat.
2. To rule that in the spirit of these standards and for the reasons explained in this judgment, the
appointment should be given to the Complainant Isabel Chaly Caserta. The Tribunal orders that this
be done as from July 1, 1975, and that all the effects of that appointment commence on that date.
3. To deny the Complainant's petition for an indemnity.
4. To dismiss the claim against the Assistant Secretary General.
5. To set US$1,000 as the amount to be paid to the Complainant by the Organization of
American States for attorney's fees.
Let notification be given.
Washington, D.C., June 13, 1975
Mozart Víctor Russomano, Esq. / President
Alejandro Tinoco, Esq. / Vice President
John L.A. de Passalacqua, Esq. / Judge
Domingo E. Acevedo, Esq. / Secretary
OEA/Ser.R
TRIBAD/45
13 June 1975
Original: Spanish
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