13 July 1954

 

General List No. 21

 
     

international Court of Justice

     
     
     

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE: President: Sir Arnold McNair;
Vice-President: Guerrero;
Judges: Alvarez, Hackworth, Winiarski, Klaestad, Badawi, Read, Hsu Mo, Levi Carneiro, Armand-Ugon, Kojevnikov
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1954.07.13_administrative_tribunal.htm
   
Citation: Effect of Awards of Compensation Made by the U.N. Administrative Tribunal, Advisory Opinion, 1954 I.C.J. 47 (July 13)
 
     
 
 
     
 

[p47]

In the matter of the Effect of Awards of Compensation made by the United Nations Administrative Tribunal, submitted to the Court for advisory opinion at the request of the General Assembly of the United Nations,

The Court,

composed as above,

gives the following Advisory Opinion:

With a letter of December 16th, 1953, which was filed in the Registry on December 21st, the Secretary-General of the United Nations transmitted to the Court a certified true copy of a Reso-lution of the General Assembly of the United Nations of December 9th, 1953, which was in the following terms:

"The General Assembly,

Considering the request for a supplementary appropriation of $179,420, made by the Secretary-General in his report (A/2534) for the purpose of covering the awards made by the United Nations Administrative Tribunal in eleven cases numbered 26, and 37 to 46 inclusive,

Considering the concurrence in that appropriation by the Advisory Committee on Administrative and Budgetary Questions contained in its twenty-fourth report to the eighth session of the General Assembly (A/2580),

Considering, nevertheless, that important legal questions have been raised in the course of debate in the Fifth Committee with respect to that appropriation,

Decides

To submit the following legal questions to the International Court of Justice for an advisory opinion:

(1) Having regard to the "Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent?

(2) If the answer given by the Court to question (1) is in the affirmative, what are the principal grounds upon which the General Assembly could lawfully exercise such a right?"

The letter of the Secretary-General of the United Nations with the annexed Resolution was communicated on December 24th, 1953, to all States entitled to appear before the Court, in accordance with Article 66, paragraph 1, of the Statute. The Court was not sitting and the President considered that the States Members of [p49] the United Nations and the International Labour Organisation were likely to be able to furnish information on the questions referred to the Court. Accordingly, the Registrar, in conformity with Article 66, paragraph 2, of the Statute, notified these States and the International Labour Organisation on January 14th, 1954, that the Court was prepared to receive written statements from them within a time-limit fixed by an Order of the same date at March 15th, 1954.

The following availed themselves of this opportunity to present written statements: The International Labour Organisation and the Governments of France, Sweden, the Netherlands, Greece, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Philippines, Mexico, Chile, Iraq, the Republic of China, Guatemala, Turkey and Ecuador. The Governments of Canada, the Union of Soviet Socialist Republics, Yugoslavia, Czechoslovakia and Egypt, while not submitting written statements, drew attention to the views expressed by their representatives in the General Assembly when the question which has given rise to the request for an Advisory Opinion was debated there.

In accordance with Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations transmitted to the Court the documents likely to throw light upon the question. He also submitted a written statement.

Public hearings were held on June 10th, nth, 12th and 14th, 1954, for the purpose of hearing oral statements. The following addressed the Court in the order which was decided by the President of the Court in consultation with them:

Mr. C. A. Stavropoulos, Principal Director in charge of the Legal Department of the Secretariat, representing the Secretary-General of the United Nations;

The Honorable Herman Phleger, Legal Adviser of the Department of State, representing the Government of the United States of America;

M. Paul Reuter, Professor of the Faculty of Law of Paris, Assistant Legal Adviser of the Ministry for Foreign Affairs, representing the Government of the French Republic;

Professor Jean Spiropoulos, Legal Adviser of the Ministry for Foreign Affairs, representing the Hellenic Government;

The Right Honourable Sir Reginald Manningham-Buller, Q.C., M.P., Solicitor-General, representing the Government of the United Kingdom of Great Britain and Northern Ireland;

M. A. J. P. Tammes, Professor of International Law at the University of Amsterdam, representing the Government of the Netherlands. [p50]

***
The first Question submitted to the Court is as follows:

"Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent?"

This Question is strictly limited in scope. It relates solely to an award made by the Administrative Tribunal of the United Nations in favour of a staff member of the United Nations whose contract of service has been terminated without his assent. According to Article 2, paragraph I, of the Statute of that Tribunal, it "shall be competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members". A comparison between this provision and the terms of the first Question submitted to the Court shows that an award as denned by that Question must be considered as falling within the competence of the Tribunal as defined by Article 2. A claim arising out of the termination of a contract of service without the assent of the staff member must, in fact, either fall within the term "non-observance of contracts of employment", or relate to "the terms of appointment" of the staff member. The Question concerns, in other words, only awards which are made within the limits of the competence of the Tribunal as determined by Article 2. The Court does not therefore seem to be requested to express its view with regard to awards which may exceed the scope of that statutory competence.

In the Resolution by which the present Advisory Opinion is requested, the General Assembly refers to the request for a supplementary appropriation made in a report of the Secretary-General for the purpose of covering the awards made by the Administrative Tribunal in eleven cases. It also refers to the concurrence in that appropriation by the Advisory Committee on Administrative and Budgetary Questions in its report to the General Assembly, and the first Question refers to the Statute of that Tribunal and "to any other relevant instruments and to the relevant records". In none of these reports or relevant records is to be found any suggestion indicating that the Tribunal, when rendering its awards in those eleven cases, was not legally constituted according to the provisions of Article 3 of its Statute. In such circumstances the Court understands that the first Question submitted to it contemplates awards made by a properly constituted Tribunal. [p51]

It is true that by this Question the Court is requested to say whether the General Assembly has the right to refuse to give effect to an award "on any grounds". But it is difficult to hold that the General Assembly, by inserting these words, intended to modify the meaning which naturally follows from the other terms of the Question and from the above-mentioned considerations contained in its Resolution. The Court will, however, come back to this matter later in another connection.

The first Question is further limited to awards which grant compensation to a staff member, and it relates solely to awards in favour of a staff member whose contract of service has been terminated without his assent. It does not include awards in other disputes arising out of a contract of service. The Court is requested to say whether the General Assembly has the right to refuse to give effect to an award as defined by the Question. The term "right" must signify legal right. The Court is asked to say whether the General Assembly is legally entitled to refuse to give effect to such awards. The Court is not called upon to express any view with regard to the particular awards which have -given rise to the present Advisory Opinion.

This examination of the first Question shows that the Court is requested to consider the general and abstract question whether the General Assembly is legally entitled to refuse to give effect to an award of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence. The answer to this question depends on the provisions of the Statute of the Tribunal as adopted by the General Assembly on November 24th, 1949, and on the Staff Regulations and Rules as in force on December 9th, 1953. But the Court will also take into account the amendments which were made to the Statute on the latter date. The Court will first consider whether the Tribunal is established either as a judicial body, or as an advisory organ or a mere subordinate committee of the General Assembly.

Article 1 of the Statute provides: "A Tribunal is established by the present Statute to be known as the United Nations Administrative Tribunal." This Tribunal shall, according to Article 2, paragraph 1, "be competent to hear and pass judgment upon applications", whereupon the paragraph determines the limits of the Tribunal's competence as already mentioned above.

Article 2, paragraph 3, prescribes:

"In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal."

Article 10 contains the following provisions:

"2. The judgments shall be final and without appeal."
"3. The judgments shall state the reasons on which they are based.". [p52]

These provisions and the terminology used are evidence of the judicial nature of the Tribunal. Such terms as "tribunal", "judgment", competence to "pass judgment upon applications", are generally used with respect to judicial bodies. The above-mentioned provisions of Articles 2 and 10 are of an essentially judicial character and conform with rules generally laid down in statutes or laws issued for courts of justice, such as, for instance, in the Statute of the International Court of Justice, Article 36, paragraph 6, Article 56, paragraph 1, Article 60, first sentence. They provide a striking contrast to Staff Rule III.I of the United Nations, which provides:

"A Joint Appeals Board is established to consider and advise the Secretary-General regarding appeals filed under the terms of Staff Regulation 11.1 by staff members serving at Headquarters."

The Statute of the Administrative Tribunal contains no similar provision attributing an advisory character to its functions, nor does it in any way limit the independence of its activity. The independence of its members is ensured by Article 3, paragraph 5, which provides:
"No member of the Tribunal can be dismissed by the General Assembly unless the other members are of the unanimous opinion that he is unsuited for further service."

The original Statute, as adopted on November 24th, 1949, contained in Article 9 the following provisions:

"If the Tribunal finds that the application is well founded, it shall order the rescinding of the decision contested or the specific performance of the obligation invoked; but if, in exceptional circumstances, such rescinding or specific performance is, in the opinion of the Secretary-General, impossible or inadvisable, the Tribunal shall within a period of not more than sixty days order the payment to the applicant of compensation for the injury sustained. The applicant shall be entitled to claim compensation in lieu of rescinding of the contested decision or specific performance — "

These provisions were amended on December 9th, 1953. Article 9 now provides in paragraph 1:

"If the Tribunal finds that the application is well founded, it shall order the rescinding of the decision contested or the specific performance of the obligation invoked. At the same time the Tribunal shall fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary-General, within thirty days of the notification of the judgment, decide, in the interest of the United Nations, that the applicant shall be compensated without further action being taken in his case; provided that such compensation shall not exceed the equivalent of two years' net base salary of the applicant. The Tribunal may, however, in exceptional cases, when it considers it justified, order [p53] the payment of a higher indemnity. A statement of the reasons for the Tribunal's decision shall accompany each such order."

These provisions prescribe both in the original and in the amended text that the Tribunal shall, if it finds that the application is well founded, order the rescinding of the decision contested or the specific performance of the obligation invoked. As the power to issue such orders to the chief administrative officer of the Organization could hardly have been conferred on an advisory organ or a subordinate committee, these provisions confirm the judicial character of the Tribunal. The amended text contains certain modifications of the Tribunal's powers and procedure, but these modifications have no bearing upon the judicial nature of its functions.

This examination of the relevant provisions of the Statute shows that the Tribunal is established, not as an advisory organ or a mere subordinate committee of the General Assembly, but as an independent and truly judicial body pronouncing final judgments without appeal within the limited field of its functions.

According to a well-established and generally recognized principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute. It must therefore be examined who are to be regarded as parties bound by an award of compensation made in favour of a staff member of the United Nations whose contract of service has been terminated without his assent.
Such a contract of service is concluded between the staff member concerned and the Secretary-General in his capacity as the chief administrative officer of the United Nations Organization, acting on behalf of that Organization as its representative. When the Secretary-General concludes such a contract of service with a staff member, he engages the legal responsibility of the Organization, which is the juridical person on whose behalf he acts. If he termi-nates the contract of service without the assent of the staff member and this action results in a dispute which is referred to the Administrative Tribunal, the parties to this dispute before the Tribunal are the staff member concerned and the United Nations Organization, represented by the Secretary-General, and these parties will become bound by the judgment of the Tribunal. This judgment is, according to Article 10 of the Tribunal's Statute, final and without appeal. The Statute has provided for no kind of review. As this final judgment has binding force on the United Nations Organization as the juridical person responsible for the proper observance of the contract of service, that Organization becomes legally bound to carry out the judgment and to pay the compensation awarded to the staff member. It follows that the General Assembly, as an organ of the United Nations, must likewise be bound by the judgment. [p54]

This view is confirmed by express provisions in the Statute of the Administrative Tribunal. Article 9 in the original Statute of 1949 provided:

"In any case involving compensation, the amount awarded shall be fixed by the Tribunal and paid by the United Nations or, as appropriate, by the specialized agency participating under Article 12."

A similar provision is contained in Article 9, paragraph 3, of the amended Statute. Both provisions show that the payment of an amount of compensation awarded by the Tribunal is an obligation of the United Nations as a whole or, as the case may be, of the specialized agency concerned.

Article 12 is based on the same legal considerations. It provides that the competence of the Tribunal may be extended to any specialized agency brought into relationship with the United Nations upon the terms established by a special agreement to be made with each such agency by the Secretary-General of the United Nations, and it continues:

"Each such special agreement shall provide that the agency concerned shall be bound by the judgments of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that agency...."

*
As mentioned above, the Statute of the Administrative Tribunal has not provided for any kind of review of judgments, which according to Article 10, paragraph 2, shall be final and without appeal. This rule is similar to the corresponding rule in the Statute of the Administrative Tribunal of the League of Nations, Article VI, paragraph 1, which equally prescribed that "judgments shall be final and without appeal". The report of the Supervisory Commission, proposing the Statute of this Tribunal of the League of Nations, shows that the omission of any provision for a review of judgments was deliberate. The report stated:
"No provision for the revision of judgments of the Tribunal is inserted in the statute. It is considered that, in the interests of finality and of the avoidance of vexatious proceedings, the Tribunal's judgments should be final and without appeal as is provided in Article VI, paragraph 1."

It is likewise the result of a deliberate decision that no provision for review of the judgments of the United Nations Administrative Tribunal was inserted in the Statute of that Tribunal. According to the official records of the General Assembly, Fifth Committee meeting on November 15th, 1946, the representative of Belgium asked the rapporteur of that Committee [p55]

"whether the decisions of the administrative tribunal would be final or whether they would be subject to a revision by the General Assembly".

The rapporteur replied

"that according to the draft Statute as prepared by the Advisory Committee, there could be no appeal from the administrative tribunal. The Advisory Committee feared an adverse effect on the morale of the staff if appeal beyond the administrative tribunal delayed the final decision in a case which had already been heard before organs within the Secretariat created for that purpose."

The General Assembly could, when it adopted the Statute, have-provided for means of redress, but it did not do so. Like the Assembly of the League of Nations it refrained from laying down any exception to the rule conferring on the Tribunal the power to pronounce final judgments without appeal.

This rule contained in Article 10, paragraph 2, cannot however be considered as excluding the Tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered; and the Tribunal has already exercised this power. Such a strictly limited revision by the Tribunal itself cannot be considered as an "appeal" within the meaning of that Article and would conform with rules generally provided in statutes or laws issued for courts-of justice, such as for instance m Article 61 of the Statute of the International Court of Justice.

It may be asked whether the General Assembly would in certain, exceptional circumstances be legally entitled to refuse to give effect to awards of compensation made by the Administrative Tribunal. The first Question submitted to the Court asks, in fact, whether the General Assembly has the right to refuse to do so "on any grounds". When the Court defined the scope of that Question above, it arrived, at the conclusion that the Question refers only to awards of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence, and the previous observations of the Court are based upon that ground. If,- however, the General Assembly, by inserting the words "on any grounds", intended also to refer to awards made in excess of the Tribunal's competence or to any other defect which might vitiate an award, there would arise a problem which calls for some general observations.
This problem would not, as has been suggested, raise the question of the nullity of arbitral awards made in the ordinary course of arbitration between States. The present Advisory Opinion deals with a different legal situation. It concerns judgments pronounced by a permanent judicial tribunal established by the General Assembly, [p56] functioning under a special statute and within the organized legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General. In order that the judgments pronounced by such a judicial tribunal could be subjected to review by any body other than the tribunal itself, it would be necessary, in the opinion of the Court, that the statute of that tribunal or some other legal instrument governing it should contain an express provision to that effect. The General Assembly has the power to amend the Statute of the Administrative Tribunal by virtue of Article 11 of that Statute and to provide for means of redress by another organ. But as no such provisions are inserted in the present Statute, there is no legal ground upon which the General Assembly could proceed to review judgments already pronounced by that Tribunal. Should the General -Assembly contemplate, for dealing with future disputes, the making of some provision for the review of the awards of the Tribunal, the Court is of opinion that the General Assembly itself, in view of its Composition and functions, could hardly act as a judicial organ—considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them—all the more so as one party to the disputes is the United Nations Organization itself.

***
The Court must now examine the principal contentions which have been put forward, in the written and in the oral statements, by the Governments that take the position that there are grounds which would justify the General Assembly in refusing to give effect to awards of the Administrative Tribunal.

The legal power of the General Assembly to establish a tribunal competent to render judgments binding on the United Nations has been challenged. Accordingly, it is necessary to consider whether the General Assembly has been given this power by the Charter.

There is no express provision for the establishment of judicial bodies or organs and no indication to the contrary. However, in its Opinion—Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion: I.C.J. Reports 1949, p. 182—the Court said:

"Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties."

The Court must therefore begin by enquiring whether the provisions of the Charter concerning the relations between the staff members and the Organization imply for the Organization the power to establish a judicial tribunal to adjudicate upon disputes arising out of the contracts of service. [p57]

Under the provisions of Chapter XV of the Charter, the Secretariat, which is one of the principal organs of the United Nations, comprises the Secretary-General and the staff. The Secretary-General is appointed by the General Assembly, upon the recommendation of the Security Council, and he is "the chief administrative officer of the Organization". The staff members are "appointed by the Secretary-General under regulations established by the General Assembly". In the words of Article 101 (3) of the Charter, "The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity".

The contracts of service between the Organization and the staff members are contained in letters of appointment. Each appointment is made subject to terms and conditions provided in the Staff Regulations and Staff Rules, together with such amendments as may be made from time to time.
When the Secretariat was organized, a situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. This code consisted of the Staff Regulations established by the General Assembly, defining the fundamental rights and obligations of the staff, and the Staff Rules, made by the Secretary-General in order to implement the Staff Regulations. It was inevitable that there would be disputes between the Organization and staff members as to their rights and duties. The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes, and Article 105 secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.

In these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter.

The existence of this capacity leads to the further enquiry as to the agency by which it may be exercised. Here, there can be no room for doubt. [p58]


In Article 7 of the Charter, after naming the six principal organs, it is provided in paragraph (2) :

"Such subsidiary organs, as may be found necessary may be established in accordance with the present Charter."

Article 22 provides:

"The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions."

Further, in Article 101, paragraph 1, the General Assembly is given power to regulate staff relations:

"The Staff shall be appointed by the Secretary-General under regulations established by the General Assembly."

Accordingly, the Court finds that the power to establish a tribunal to do justice between the Organization and the staff members may be exercised by the General Assembly.

*
But that does not dispose of the problem before the Court. Some of the Governments that take the position that there are grounds which would justify the General Assembly in refusing to give effect to awards, agree that the powers of the General Assembly, and particularly its power to establish regulations under Article 101, imply the power to set up an administrative tribunal. They agree that the General Assembly would be able to establish a tribunal competent to hear and decide staff grievances, to prescribe its jurisdiction, and to authorize it to give a final decision, in the sense that no appeal could be taken as of right. They nevertheless contend that the implied power does not enable the General Assembly to establish a tribunal with authority to make decisions binding on the General Assembly itself.

In the first place, it is contended that there was no need to go so far, and that an implied power can only be exercised to the extent that the particular measure under consideration can be regarded as absolutely essential. There can be no doubt that the General Assembly in the exercise of its power could have set up a tribunal without giving finality to its judgments. In fact, however, it decided, after long deliberation, to invest the Tribunal with power to render judgments which would be "final and without appeal", and which would be binding on the United Nations. The precise nature and scope of the measures by which the power of creating a tribunal was to be exercised, was a matter for determination by the General Assembly alone. [p59]

*
In the second place, it has been argued that, while an implied power of the General Assembly to establish an administrative tribunal may be both necessary and essential, nevertheless, an implied power to impose legal limitations upon the General Assembly's express Charter powers is not legally admissible.

It has been contended that the General Assembly cannot, by establishing the Administrative Tribunal, divest itself of the power conferred by paragraph (I) of Article 17 of the Charter, which reads:

"The General Assembly shall consider and approve the budget of the Organization."

This provision confers a power on the General Assembly, for the exercise of which Article 18 requires the vote of a two-thirds majority. Accordingly, the establishment of a tribunal competent to make an award of compensation to which the General Assembly was bound to give effect would, it has been argued, contravene the provisions relating to the budgetary power. The Court is unable to accept this contention.

The Court notes that Article 17 of the Charter appears in a section of Chapter IV relating to the General Assembly, which is entitled "Functions and Powers". This Article deals with a function of the General Assembly and provides for the consideration and approval by it of the budget of the Organization. Consideration of the budget is thus an act which must be performed and the same is true of its approval, for without such approval there can be no budget.

But the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements. The question, therefore, to be decided by the Court is whether these obligations comprise the awards of compensation made by the Administrative Tribunal in favour of staff members. The reply to this question must be in the affirmative. The obligatory character of these awards has been established by the considerations set out above relating to the authority of res judicata and the binding effect of the judgments of this Tribunal upon the United Nations Organization.

The Court therefore considers that the assignment of the budgetary function to the General Assembly cannot be regarded as conferring upon it the right to refuse to give effect to the obligation arising out of an award of the Administrative Tribunal. [p60]

*
It has also been contended that the implied power of the General Assembly to establish a tribunal cannot be carried so far as to enable the tribunal to intervene in matters falling within the province of the Secretary-General. The Court cannot accept this contention.

The General Assembly could at all times limit or control the powers of the Secretary-General in staff matters, by virtue of the provisions of Article 101. Acting under powers conferred by the Charter, the General Assembly authorized the intervention of the Tribunal to the extent that such intervention might result from the exercise of jurisdiction conferred upon the Tribunal by its Statute. Accordingly, when the Tribunal decides that particular action by the Secretary-General involves a breach of the contract of service, it is in no sense intervening in a Charter power of the Secretary-General, because the Secretary-General's legal powers in staff matters have already been limited in this respect by the General Assembly.

*
A similar problem is involved in the contention that the General Assembly cannot authorize and the Secretary-General cannot enter into contracts of service which are not in conformity with the Charter. The Staff Regulations are made a part of the contracts of service and No. 11.2 reads as follows:

"The United Nations Administrative Tribunal shall, under conditions prescribed in its Statute, hear and pass judgment upon applications from staff members alleging non-observance of their terms of appointment, including all pertinent regulations and rules."

It is contended that the incorporation, in the contracts of service, of the right to rely on the Statute of the Administrative Tribunal would conflict with the powers conferred on the General Assembly and on the Secretary-General by the Charter. In view of the foregoing considerations, the Court cannot accept this contention. There can be no doubt that, by virtue of the terms thus incorporated in the contracts of service, and so long as the Statute of the Administrative Tribunal in its present form is in force, the staff members are entitled to resort to the Tribunal and rely on its judgments.

*
In the third place, the view has been put forward that the Administrative Tribunal is a subsidiary, subordinate, or secondary organ; and that, accordingly, the Tribunal's judgments cannot bind the General Assembly which established it. [p61]

This view assumes that, in adopting the Statute of the Administrative Tribunal, the General Assembly was establishing an organ which it deemed necessary for the performance of its own functions. But the Court cannot accept this basic assumption. The Charter does not confer judicial functions on the General Assembly and the relations between staff and Organization come within the scope of Chapter XV of the Charter. In the absence of the establishment of an Administrative Tribunal, the function of resolving disputes between staff and Organization could be discharged by the Secretary-General by virtue of the provisions of Articles 97 and 101. Accordingly, in the three years or more preceding the establishment of the Administrative Tribunal, the Secretary-General coped with this problem by means of joint administrative machinery, leading to ultimate decision by himself. By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff relations. In regard to the Secretariat, the General Assembly is given by the Charter a power to make regulations, but not a power to adjudicate upon, or otherwise deal with, particular instances.

It has been argued that an authority exercising a power to make regulations is inherently incapable of creating a subordinate body competent to make decisions binding its creator. There can be no doubt that the Administrative Tribunal is subordinate in the sense that the General Assembly can abolish the Tribunal by repealing the Statute, that it can amend the Statute and provide for review of the-future decisions of the Tribunal and that it can amend the Staff Regulations and make new ones. There is no lack of power to deal effectively with any problem that may arise. But the contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted. It cannot be justified by analogy to national laws, for it is common practice in national legislatures to create courts with the capacity to render decisions legally binding on the legislatures which brought them into being.

The question cannot be determined on the basis of the description of the relationship between the General Assembly and the Tribunal, that is, by considering whether the Tribunal is to be regarded as a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact that it was established by the General Assembly. It depends on the intention of the General Assembly in establishing the Tribunal, and on the nature of the functions conferred upon it by its Statute. An examination of the language of the Statute of the Administrative Tribunal has shown that the General Assembly intended to establish a judicial body; moreover, it had the legal capacity under the Charter to do so. [p62]

*
The view has been advanced that the Court should follow what has been called the precedent established by the League of Nations in 1946. On that occasion, the Assembly of the League rejected certain awards of its Administrative Tribunal. It is unnecessary to consider the question whether the Assembly, which in very special circumstances was winding up the League, was justified in rejecting those awards. The cases adjudicated upon by the Tribunal of the League, and the circumstances in which they arose, are different from those which led to the request for this Opinion. Moreover, the cases arose under the Statute of the Administrative Tribunal of the League, and not under the Statute of the Administrative Tribunal of the United Nations, and the Assembly was acting under the Covenant and not under the Charter.

In view of the complete lack of identity between the two situations, and of the conclusions already drawn by the Court from the Charter and the Statute of the Administrative Tribunal of the United Nations and other relevant instruments and records, the Court cannot regard the action of the Assembly of the League in 1946 as an applicable precedent or as an indication of the intention of the General Assembly when the Statute of the Administrative Tribunal was adopted in 1949.

***

The Court has accordingly arrived at the conclusion that the first Question submitted to it must be answered in the negative. The second Question does not therefore call for consideration.

***
For these reasons,

having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records,

The Court is of opinion,

by nine votes to three,

that the General Assembly has not the right on any grounds to refuse to give effect to an award of compensation made by the Administrative Tribunal of the United Nations in favour of a staff member of the United Nations whose contract of service has been terminated without his assent. [p63]

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this thirteenth day of July, one thousand nine hundred and fifty-four, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Arnold D. McNair,
President.

(Signed) Garnier-Coignet,
Deputy-Registrar.

Judge Winiarski, while voting in favour of the Opinion of the Court, avails himself of the right conferred on him by Articles 57 and 68 of the Statute to append a statement of his separate opinion.

Judges Alvarez, Hackworth and Levi Carneiro declare that they do not share the Court's Opinion and, -availing themselves of the right conferred on them by Articles 57 and 68 of the Statute, append thereto statements of their dissenting opinions.

(Initialled) A. D. McN.

(Initialled) G.-C.

[p64]
INDIVIDUAL OPINION BY JUDGE B. WINIARSKI

[Translation J

The Advisory Opinion indicates that the question submitted to the Court concerns only awards made by the Administrative Tribunal within the limits of its competence and that it contemplates awards made by the Tribunal when properly constituted. "It is true", it is said in the Opinion, "that by this Question the Court is requested to say whether the General Assembly has the right to refuse to give effect to an award 'on any grounds'. But it is difficult to hold that the General Assembly, by inserting these words, intended to modify the meaning which naturally follows from the other terms of the Question and from the .... considerations contained in its Resolution." The Court accordingly formulates as follows the way in which it understands the Question which the Advisory Opinion must answer: "the Court is requested to consider the general and abstract question whether the General Assembly is legally entitled to refuse to give effect to an award of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence" ; farther on in the Opinion it is added that "the previous observations of the Court are based upon that ground".

To this formula it would, in my opinion, be necessary to add a third element to complete it correctly: the Tribunal, properly constituted, acting within the limits of its statutory competence and in accordance with the rules, of its procedure. The Opinion states that "in none of these reports or relevant records is to be found any suggestion indicating that the Tribunal, when rendering its awards in those eleven cases, was not legally constituted", but it might with equal reason be added: or that it disregarded any essential rule of its procedure. In any event, I understand the Opinion as contemplating awards which are not nullities, and I was accordingly able to vote with the majority, for, like the majority, I consider that the General Assembly has not the right to refuse to give effect to an award where the ground on which it relies is merely an incorrect application of the law or a mistaken finding or appraisal of the facts.

Having thus construed the question to which the answer is given in its operative part, the Advisory Opinion then refers to the following hypothesis which, in my view, goes beyond the ground upon which the observations of the Court are based: "If, however, the General Assembly, by inserting the words 'on any grounds', intended also to refer to awards made in excess of the Tribunal's competence or to any other defect which might vitiate an award, [p65] there would arise a problem which calls for some general observations."

I regret to be unable to associate myself with these observations: and as they make it necessary for me to clarify my vote, I am compelled to append to the Advisory Opinion certain considerations which briefly summarize my point of view.

It is said in the Opinion that the problem envisaged by this hypothesis would not raise the question of the nullity of arbitral awards made in the ordinary course of arbitration between States, for the present case concerns judgments pronounced by a permanent judicial tribunal established by the General Assembly, functioning under a special statute adopted by the General Assembly and within the organized legal system of the United Nations. If this passage refers to a judgment vitiated by such defects as to be a nullity, I can see no difference between the nullity of an arbitral award and that of an award made by the Administrative Tribunal. An arbitral award, which is always final and without appeal, may be vitiated by defects which make it void; in this event, a party to the arbitration will be justified in refusing to give effect to it. This is not by virtue of any rule peculiar to ordinary arbitration between States; it is a natural and inevitable application of a general principle existing in all law : not only a judgment, but any act is incapable of producing legal effects if it is legally null and void. The Administrative Tribunal, organized as it is, for important practical reasons, is a permanent tribunal made available by the United Nations and accepted by staff members under a contract freely entered into. It does not and cannot constitute an exception to the general rule. Its judgments are final and without appeal; but this provision of the Statute says what it says, and the Opinion quotes the Statement of the rapporteur of the Fifth Committee of the General Assembly when the draft Statute of the Administrative Tribunal was under discussion. Indicating that there would be no appeal from the decisions of the Tribunal, the rapporteur, at the meeting on November 15th, 1946, referred to delay in "the final decision in a case...." if there should be "appeal beyond the Administrative Tribunal". There can be no appellate procedure in the absence of an express provision which must in the first place establish an appellate tribunal. But appeal is one thing, and refusal to give effect to a judgment which is a nullity is another. The view that it is only possible for a party to rely on the rule relating to nullities where some procedure for this purpose is established, finds no support in international law. Such a procedure may be established ad hoc between States, as it was in the Orinoco Steamship Company case; it was established in the case of the Administrative Tribunal of the International Labour Organisation; but the absence of an organized procedure does not do away with nullities, and there is no warrant for the idea that there can be no nullity if there is no appropriate court to take cognizance of it. Nor is it necessary that [p66] the principle, in accordance with which a party is entitled to refuse to give effect to a judgment which legally is a nullity, should be enunciated in any express provision.

It is, however, possible that when it considered the hypothesis which has given rise to this Individual Opinion, the Advisory Opinion was contemplating simply an established system of review, review in the sense of a further consideration of the case, and this seems to be so in view of the last lines of the paragraph referred to: "the Court is of opinion that the General Assembly itself .... could hardly act as a judicial organ—considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them". Here, the Opinion seems to be contemplating a consideration on appeal and perhaps in proceedings to have a decision quashed, but this is outside the scope of the question referred to the Court by the General Assembly, which is not concerned with a review of this sort but merely with a refusal to give effect to an award.

Having indicated my agreement with the opinion of the Court on the ground defined by it, I can confine myself to these brief observations designed to indicate my disagreement with what I believe to be the purport of the "general observations". As they appear to me to be outside the scope of the factors which determined the attitude of the Court, I shall refrain from going into any detailed argument on this point.

(Signed) B. Winiarsky.

[p67]
DISSENTING OPINION BY JUDGE ALVAREZ

[Translation]
I

The question referred to the International Court of Justice by the General Assembly of the United Nations for an Advisory Opinion in the matter of the Effect of Awards of Compensation made by the United Nations Administrative Tribunal in favour of certain staff members is drafted in very precise terms which considerably limit its scope.

In Question (I) of the Request for an Advisory Opinion, the General Assembly asks whether, having regard to the Statute of the Administrative Tribunal and any other relevant legal instrument or to the relevant records, it has the right on any grounds to refuse to give effect to an award of compensation made by the Tribunal in favour of a staff member of the United Nations; and in Question (2) it asks, if the answer given by the Court to Question (1) is in the affirmative, what are the principal grounds upon which the General Assembly could lawfully exercise its right.

The question however is more general in character by reason of the third recital in the Request for an Opinion, which reads as follows: "Considering, nevertheless, that important legal questions have been raised in the course of debate in the Fifth Committee with respect to that appropriation (for the purpose of covering the awards made by the Administrative Tribunal)...."

What the General Assembly is really asking is whether, apart from the specific texts indicated in Question (1), there are other considerations or grounds upon which the General Assembly could exercise a right to refuse to give effect to an award of compensation made by the Administrative Tribunal.

It becomes necessary, therefore, to indicate these considerations or grounds; they may be not only legal but also political, for the question presents this two-fold character.

Some of the Governments to which the Registrar of the Court, in accordance with Article 66 of the Statute of the Court, had communicated the present Request for an Opinion, relied in their Written Statements, or in oral statements made before the Court, not only on the documents referred to in Question (1) but also on legal considerations or considerations of a more general character.

The opinions thus expressed show that there are two conflicting views:

A.—The Administrative Tribunal, established by the Assembly of the United Nations, is a subsidiary organ of the Assembly and accordingly the Assembly is not bound by the decisions of the Tribunal. [p68]

B.—The Administrative Tribunal is a real tribunal whose awards are binding and therefore the Assembly must always respect them.
I am unable to concur in the opinion of the majority of the Court because they have relied almost exclusively on the documents indicated in Question (I) of the Request for an Opinion. I, for my part, consider that apart from these elements there are other very important elements of a general character which must also be taken into account.

It is for this reason that I have appended my dissenting opinion to the opinion of the Court.

II

My basic assumption is that the question referred to the Court relates to the international organization established by the Charter of the United Nations; it is therefore a problem of politics and of the new international law, which must be resolved in accordance with those elements and having regard to a new criterion.

Before we show in what respect the problem belongs to the domain of the new international law and before we deal with the solution which should be given to it in accordance with that law, let us consider how it would be resolved by classical international law.

Before 1914 there were no arbitral tribunals operating on a permanent basis; there were merely occasional arbitrators who adjudicated upon disputes regarding specific matters. A distinction had to be made between appeals against such awards and their performance.

As regards appeal, this was provided for in the arbitration agreement, which usually stipulated that revision might be undertaken by the arbitrator in certain cases.

And as regards the performance of the award, the practice was that it was carried out in good faith; but if it contained grave defects and in particular if the arbitrator had acted ultra vires, the party concerned could refuse to give effect to the award. Such a refusal, moreover, might give rise to a new dispute between the parties.

These precedents of arbitral tribunals finally gave rise to a principle of classical international law to the effect that a party might refuse to give effect to an arbitral award if the award contained grave defects.

If classical international law is applied to the case now before the Court, there can be no doubt as to the solution : the General Assembly of the United Nations must not give effect to awards of the Administrative Tribunal if it considers that they are vitiated by some important defect. [p69]

But now that, in addition to arbitral tribunals, the International Court of Justice, which is permanent in character, has come into existence, the question of the review and performance of arbitral awards must be resolved, having regard to the new conditions of arbitration as well as to the new conditions of international life in general.

In this connection, it is necessary to proceed on the basic assumption that, following the last two social cataclysms in particular, rapid and profound transformations have occurred in the life of peoples and in the traditional or classical international law, which have not been sufficiently appreciated. By reason of the extent of these changes, a new epoch, a new era has opened in the life of peoples and in the traditional or classical international law.

A rapid review of these transformations will serve to show how important they are.

Until the two last world wars, all the States formed a mere community and there existed between them no links other than those which had been freely accepted. Since then, and as a result of a number of circumstances, particularly the ever-increasing relations between States, the complexity and variety of those relations, the great number of international services created by the States, as well as the increasing dynamism of the life of peoples, this community has been transformed into a real international society which includes all the States of the world. This transformation has taken place without any convention or solemn act being required for that purpose.

There are great differences between the old community and the new international society.

Without expatiating on this point, I shall merely indicate that in the new international society the psychology of peoples has been deeply modified from a two-fold point of view. Certain peoples who for centuries had followed a traditional course, adopted new ways of life and embraced, almost abruptly, a political, social and economic regime which was entirely different from the one that had hitherto prevailed. This is particularly true of Russia, where the Soviet regime was born. Since that time there has also been an awakening among many peoples of Asia, Oceania and North Africa who are desirous of casting off what they call the European yoke. In this way more than half of the world to-day has, particularly from the international point of view, a psychology which is very different from what it formerly was.

Furthermore, all the peoples now understand that they are no longer isolated or bound only by the instruments which they have freely accepted, but that they are a part of a real society which is broader than the civil community to which they belong and which limits their absolute sovereignty.

As a result, the classical international law which governed the old community has been modified from several points of view. [p70]

First, it has established, in many respects, a new legal order by creating certain rights and duties which States did not formerly have; secondly, international law must henceforth have primacy over national law, a fact which was formerly challenged; and finally, international law has undergone considerable change in so far as the concept of that law and its essential facts are concerned; it is no longer exclusively juridical and individualistic, as was classical international law; it now assumes a political and social character as well.

The profound modifications in international life and in international law which I have just outlined are not the mere expression of doctrine or legal speculation, as might be thought at first sight; what are involved are facts, declarations, and bases recognized by the Charter of the United Nations, particularly in its Preamble and in Chapter I.
The political character of international law has been recognized, at least by implication, by the Third Assembly of the United Nations, when it debated the Advisory Opinion of the Court in the matter of the Admission of New Members to the United Nations.

The social character of the international law of to-day is a result of the new regime of inter-dependence which has emerged and which tends to replace the traditional individualistic regime. Having regard to this social character, what may be called the new international law is particularly concerned with the maintenance of peace and the development of confidence and co-operation between States; it assigns an important place to the general interest and condemns abus du droit; it also has a new aim: the well-being of the individual and of society.

The Charter applies this social law in a number of its provisions, particularly in Chapters IX to XIV. It was also applied in some of the decisions of the International Court of Justice and in the work of the Codification Commission in the preparation of regulations governing certain matters.

Finally, a further characteristic of the international society is that it has been organized by the Charter of the United Nations. The Charter has established six principal organs, including, with particular reference to the matter we are considering, the General Assembly and the Secretariat (Art. 7). And Article 22 provides that "The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions".

The principal organs play the most important part in the new international society; almost all the activity of that society is concentrated in those organs. The only purpose of the subsidiary organs is to assist the principal organs to discharge their duties.

One fact must be particularly stressed and that is that the organs and agencies established by the Charter—as, indeed, all social institutions—evolve more or less rapidly in accordance [p71] with the new conditions of the life of peoples ; this evolution to-day constitutes a real sociological or social law.

As regards the subject we are here considering, I shall confine myself to the evolution of the General Assembly of the United Nations. This evolution is characterized by a number of factors which transform the Assembly into an all-powerful legislative organ.

First, the Assembly tends to be in almost permanent session.

Secondly, the Assembly is becoming a real international legislative power for, apart from recommendations made to States, it adopts resolutions whose provisions are binding on them all. This fact is of great importance for the future of international law.

A number of publicists and statesmen have expressed the desire for the establishment of an international legislative power: in fact such a power already exists.

A third tendency of the Assembly of the United Nations is to intervene more and more in the solution of the great international problems which arise. To-day, whenever a difficult situation presents itself in international life, its reference to the General Assembly for consideration is always envisaged.

A fourth tendency relates to the formation, within that Assembly, of a special psychology in international matters. Indeed, when the States meet in the Assembly—except in cases involving their vital interests—the juridical conscience of peoples is developed there, along with the new conception of law and of justice.

This conscience gives rise either to legal principles—in other words, principles whose observation can be required, and they are then principles of social law or more properly, of the international law of social inter-dependence—or merely to moral principles, and these constitute international social justice. The latter may become principles of law by means of resolutions of the General Assembly of the United Nations, or by decisions of certain international organs, such as the International Court of Justice, which, in respect of a given matter, may declare that a certain principle of international social justice should be established in positive terms and applied as the law in force.

And, finally, the General Assembly of the United Nations tends to be guided by the notion of social law and international social justice in its work and resolutions, as has already been pointed out above.

This character, this omnipotence which has been acquired by the General Assembly of the United Nations is to be explained by the fact that it is made up almost permanently of representatives of most of the countries of the world, whereas this was not formerly the case. [p72]]

The Assembly constitutes the supreme power; it is bound only by the Charter which established it, or by its own resolutions. There is nothing above the Assembly except moral forces, particularly public opinion, which may censure the acts of the Assembly if it considers them open to criticism.

A logical and practical consequence of the foregoing is that any attempt to limit the power of the General Assembly of the United Nations would run counter to the realities of international life.
A further very important consequence is that in the solution of international problems that may arise in the future, regard may no longer be had—as was hitherto the case and as was done by a number of governments in their opinions, to which reference has already been made—for diplomatic precedence, international awards, preparatory work or the views expressed by delegates during the debates relating thereto. In international life there can no longer be any looking backwards, although this was admissible when international life scarcely moved forward ; the dynamism of that life makes it necessary to look ahead.

III

The great transformations in international life and in international law which I have just indicated in summary form are so important that they deserve special consideration with regard to the solution of the question put to the Court.
First, the Administrative Tribunal was established by reason of the fact that the Secretariat of the United Nations consists of some thousands of staff members who were engaged under contracts which may give rise to disputes between the Secretariat and the staff members. These disputes are not decided by the General Assembly of the United Nations—this would burden it unduly; nor by the International Court of Justice—this would increase its task considerably ; nor by any other tribunal. Accordingly, the General Assembly considered it necessary to establish a subsidiary organ in accordance with Article 22 of the Charter.

Certain governments, in their opinions, and the Court itself, have sought at considerable length to prove that the General Assembly had the capacity to establish that organ; in my opinion, the Assem-bly clearly had that capacity by virtue of Article 22 quoted above and by virtue of the omnipotence of the Assembly.

The name of this organ is especially significant: "The United Nations Administrative Tribunal".

What is involved is, indeed, a tribunal and not—as alleged by certain governments—a mere advisory body of the Assembly because, under the terms of its Statute, the Tribunal delivers binding judgments; it is not, however, a judicial tribunal: it is an administrative tribunal because it deals only with specific questions [p73] in that field, which, in the first instance, fall within the purview of the General Assembly which established the Tribunal to assist it in the discharge of its duties.

The members of the Tribunal are appointed by the General Assembly and the Statute of the Tribunal was drawn up by the Assembly.

It is self-evident that the Tribunal has no competence other than that conferred upon it expressly by the Assembly; the Tribunal's competence is indicated in Article 2 of its Statute : its particular task is to settle disputes arising out of contracts of employment entered into between the Secretariat and the staff members of the United Nations.

Article 10, paragraph 2, of the Statute provides that "the judgments shall be final and without appeal"; and Article 9 provides that "in any case involving compensation, the amount awarded shall be fixed by the Tribunal and paid by the United Nations....".

It is to be noted that the Statute of the Administrative Tribunal does not provide for any means of appeal against the awards; nor does it indicate how effect is to be given to the awards.

There is therefore a difference between the Tribunal and the International Court of Justice in this respect.

The judgments of the International Court of Justice, which is the principal judicial organ of the United Nations (Art. 92 of the Charter), are "final and without appeal" (Art. 60 of the Statute of the Court), but provision is made for revision or interpretation by the Court in certain cases (Arts. 60-61 of the Statute).

As regards compliance with the decisions of the Court, the interested party may, in accordance with Article 94 of the Charter, have recourse to the Security Council "which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment".

The carrying out of the judgments of the Court is thus dependent upon the Security Council, which may make a decision in this respect, as has just been pointed out.

Since the Statute of the Administrative Tribunal contains no provision for the review of its awards and no provision relating to their performance, do those awards automatically bind the Assembly so that the Assembly must always give effect to them even when they are vitiated by a patent defect, such as excess of powers or manifest injustice? Obviously not.

It is inadmissible that a principal organ of the United Nations, such as the General Assembly, which has very broad powers, should be bound passively to give effect to all the awards of a tribunal which it has established. The Assembly is bound to do so only in cases in which the Tribunal has acted within the limits of its competence. But if the Assembly considers that the Tribunal has acted ultra vires—for example, if it grants an amount of compencation which is higher than the amount claimed, or if [p74] the compensation has been awarded without valid grounds, or if the Tribunal has committed an abus du droit—then there can be no doubt that the Assembly can refuse to give effect to the award by not providing for the amount of compensation in the budget of the Organization; but in such a case the Assembly is bound to indicate expressly the grounds for its refusal, failing which its attitude would be open to criticism.

As I have already pointed out above, it is a principle of classical international law—and also of modern international law—that the awards of tribunals are not binding when they are vitiated by some defect, as, for example, when the tribunal has acted ultra vires, and that accordingly the parties may refuse to give effect to them. In order to make the awards binding in such cases, an express provision would be required in the instrument providing for the constitution of the tribunal. But no such provision exists in the case of the Administrative Tribunal.

What the Court said in its Advisory Opinion in the matter of Reparation for Injuries suffered in the Service of the United Nations is perfectly applicable here ; the relevant passage which is quoted in the present Advisory Opinion by the Court in support of other assertions is as follows : "Under international law, the Organization (the Assembly in the present case) must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties" (I.C.J. Reports 1949, p. 182).

The General Assembly of the United Nations which, as has been pointed out above, must constantly be guided by the notion of international social justice, cannot passively agree to give effect to the awards of a subsidiary organ which it has established if those awards are vitiated by a patent defect.

Furthermore, the nature of the Tribunal is such that its decisions do not have the same scope in respect of the applicant as they do in respect of the respondent, or the General Assembly of the United Nations. They are binding on the applicant since he resorted to this Tribunal, which was especially created to deal with his complaints and which, moreover, is the only tribunal in existence for this purpose; but the decisions of the Tribunal are not binding upon the General Assembly, which may refuse to give effect to them if it considers that there are valid reasons for such a refusal. By acting in this way, the Assembly is not setting itself up as a court of appeal; nor does it proceed to review the awards: it is merely exercising a right which it has to supervise the performance of the judgments of the Administrative Tribunal which it has established. To deny this right to the Assembly would be tantamount to placing the Tribunal above the Assembly, which is inadmissible. [p75]

A concrete case may arise which would fully justify the foregoing assertion: it is the opposite case to the one usually considered. Let us suppose that the Assembly should consider that an application is well-founded which the Administrative Tribunal has found to be inadmissible. Could it then be argued that the General Assembly is not entitled to sustain this application? This is a question which answers itself.

Furthermore, a considerable change may occur in the economic or social conditions between the date of the giving of the award and that of its performance, which might entirely alter the scope of the award, for example, if there should be an abrupt fluctuation in the value of the dollar, the currency in which the amount of compensation is fixed, resulting in a considerable modification in the real value of the compensation. Should the Assembly remain passive? Should it not have the power to refer the matter back to the Tribunal for necessary adjustment, or should the Assembly itself not have the power to make such an adjustment?

Finally, it may happen that an award of compensation has been validly made, but that the Assembly has no funds available for that purpose; the Assembly must then decide how the payment shall subsequently be made.

The Assembly must make provision in the budget of the United Nations for the following expenditure: first, all expenditure relating to bodies established by the Charter, for the Assembly is bound to respect the provisions of the Charter; secondly, all other expenditure deemed necessary by the Assembly, as well as that arising from the performance of the obligations contracted by the Organization; and finally, the compensation to be paid in pursuance of those awards of the Administrative Tribunal which the Assembly regards as justified.

In short, the Assembly is sovereign in the matter of the drawing up and adoption of the budget of the Organization; there is no appeal against the decisions of the Assembly and the only sanction in respect of its actions is the criticism of public opinion.

For the foregoing reasons, I give the following answer to the questions referred to the Court:

In reply to Question (I), I am of opinion that the General Assembly has the right to refuse to give effect to an award of compensation made by the United Nations Administrative Tribunal if it considers that there are serious grounds justifying such a refusal.

In reply to Question (2), I am of the opinion that the grounds on which the General Assembly is entitled to refuse to give effect to such an award are, in particular, if the Tribunal has acted ultra vires or if there has been manifest injustice especially if in conflict with the concept of international social justice, or a violation of the great principles of international law.

(Signed) A. Alvarez.

[p76]
DISSENTING OPINION BY JUDGE HACKWORTH

I regret that I am obliged to dissent from the Opinion of the Court in the present case.

Two questions are presented to the Court. The first is whether the General Assembly has the right "on any grounds" to refuse to give effect to an award of compensation made by the United Nations Administrative Tribunal in favor of a staff member of the United -Nations whose contract of service has been terminated without his assent.

The second question, which requires an answer only in the event of an affirmative answer to the first one, asks for a statement of the principal grounds upon which the General Assembly could lawfully exercise such a right.

The United Nations Administrative Tribunal was established by Resolution 351 (IV) adopted by the General Assembly on November 24th, 1949, approving a Statute by which the Tribunal was to be governed. It was given authority to pass upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of their appointment.. The words "contracts" and "terms of appointment" were declared by Article 2 of the Statute to include "all pertinent regulations and rules in force at the time of alleged non-observance including the staff pension regulations".

The present questions arise primarily by reason of provisions contained in Articles 9 and 10 of the Statute. Article 9 states, inter alia, that:

“In any case involving compensation, the amount awarded shall be fixed by the Tribunal and paid by the United Nations, or, as appropriate, by the specialized agency participating under Article 12.” [FN1]
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[FN1] Article 12 makes provision for extension of the competence of the Tribunal to specialized agencies under certain conditions.
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Article 10 states in paragraph 2 that the "judgments shall be final and without appeal".

It is these provisions concerning payment of monetary awards and the finality of judgments, that have given rise to the questions on which advice of the Court is requested.

The question, "has the General Assembly the right.... to refuse to give effect to an award of compensation...." must be understood as meaning a legal right. This follows from the fact that the Court [p77] is authorized to give Advisory Opinions only on legal questions (Article 65 of the Statute), and also from the request in the second question for a statement of the principal grounds upon which the General Assembly could "lawfully" exercise such a right.

We might content ourselves by looking to the language of the Statute of the Tribunal and applying common canons of statutory construction. By this process it might be said that the language of the Statute is clear and unambiguous and consequently lends itself to but one construction, namely, that the Tribunal's decisions are final and without appeal and that the Assembly is obligated to pay any monetary award given by the Tribunal. Such a process would constitute an over-simplification of the problem. Indeed the Assembly's request asks the Court to have regard not only to the Statute of the Administrative Tribunal but also to "other relevant instruments and to the relevant records".

When we are considering the legal implications of any action taken by an organ of the United Nations, the Charter of the Organization is naturally a relevant instrument. It is the instrument by which the powers and duties of the organs of the United Nations have been delineated. It is the instrument by which the respective Organs are governed. It is, in short, the organic law—the Constitution of the Organization.

By this instrument the Organization has allocated to its principal organs their respective fields of operation. Action taken by an Organ must find its justification within the compass of the powers and duties there stated. It must of necessity be weighed in the light of, and reconciled with, the powers and duties conferred upon that organ by the Charter.

***

The matter with which we are here concerned relates to functions of two of the principal organs of the United Nations—the General Assembly and the Secretariat.

The Secretary-General is the principal administrative officer of the United Nations, and he and the staff under him go to make up the Secretariat (Article 97).

The Secretary-General makes the appointments but he must do so under regulations prescribed by the General Assembly. They have separate functions, but they also have a joint responsibility. That joint responsibility is to assure that "in the employment of the staff and in the determination of the conditions of service .... the highest standards of efficiency, competence and integrity" shall be secured (Article 101).

Although it is not so stated, it may be assumed that it was for the purpose of meeting this requirement of a high standard [p78] of efficiency, of which harmony within the Secretariat is an essential element, that the Administrative Tribunal was created. It is in relation to disputes between the Secretary-General and members of the staff that the Tribunal was given competence by Article 2 of the Statute.

***

We now come to the question concerning the nature of the Administrative Tribunal to which much attention has been devoted in both the written statements and the oral presentations by the various governments.

Article 7 of the Charter, after listing the principal organs of the United Nations, states in the second paragraph that:
"Such subsidiary organs as may be found necessary may be established in accordance with the present Charter."

The statement "in accordance with the present Charter" is given definite expression in Articles 22 and 29 by which the General Assembly and the Security Council, respectively, are authorized to establish subsidiary organs.

Article 22 provides:

"The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions."

It must be concluded, therefore, that when the General Assembly approved the Statute creating the Administrative Tribunal it did so in the exercise of its authority under Article 22. Nowhere else in the Charter is any such authorization to be found. And nowhere else in the Charter can there be found any authorization, express or implied, for the establishment by the General Assembly of any other kind of organ be it judicial, quasi judicial or non-judicial.

At this point it is pertinent to refer to the travaux préparatoires of the San Francisco Conference.
The draft of Article 22 as it emanated from the appropriate Committee at San Francisco stated that the Assembly might create ".... such bodies and agencies as it deems necessary for the performance of its functions". This followed the wording of the Dumbarton Oaks Proposals.

This draft was later changed to its present wording in order that it might conform to Article 7 supra, of the Charter. It was approved by the Conference as changed and as it now reads. There is, therefore, no point to saying that the Statute of the Tribunal is based on Article 101 of the Charter, as has been argued, and as so based is relieved of the consequences of Article 22. That argument must be dismissed as without legal justification. [p79]

The reasonable deduction, then, is that the Administrative Tribunal is a subsidiary organ of the General Assembly, created by an act of the Assembly, pursuant to the authorization in Article 22.
Two questions are here presented. One relates to the meaning of "subsidiary organ", and the other concerns the expression "necessary for the performance of its functions"—meaning functions of the General Assembly.

The term "subsidiary organ" has a special and well recognized meaning. It means an auxiliary or inferior organ; an organ to furnish aid and assistance in a subordinate or secondary capacity. This is the common acceptation of the meaning of the term.

The expression "necessary for the performance of its functions" means performance by the General Assembly of its functions under the Charter.

It was recognized by the framers of the Charter that with the multiplicity of duties assigned to the General Assembly the assistance of different types of subsidiary organs would -be needed, hence the provision in Article 22 giving the Assembly the authority to provide this assistance. But nowhere in the Charter is there to be found any suggestion or intimation that the General Assembly-might abdicate any of its functions or that it might reassign them to some other organ or agency in such manner as to relinquish its control over the subject-matter.

It is equally unrealistic to assume that a subsidiary organ with certain delegated authority could bind the principal organ possessing plenary powers under the Charter. This would present an anomalous and unique situation in international organization—a situation that can find no sanction, express or implied, in the Charter. The aims and purposes of the Charter must not be obscured or frustrated by such a phenomenon. The whole idea of the Charter was that the role of subsidiary organs should be, as the name implies, to assist and not to control the principal organ. Any other view, if accepted, would render extremely hazardous the creation of subsidiary organs, unless their powers were severely circumscribed. The principal organ must continue to be the principal organ with authority to accept, modify, or reject, the acts or recommendations of the subordinate organs if the former is not to become functus officio in any given field.

To conclude that the General Assembly, by conferring upon the Administrative Tribunal certain authority in administrative matters is now estopped to question any action of the Tribunal which it created, would be to penalize the Assembly for having been less guarded than it might have been in trying to give to members of the staff, by establishing the Tribunal, assurance of its desire that they should have fair treatment. But any such assurance must be understood and accepted with knowledge that in the final analysis [p80] the General Assembly is the supreme authority. Any act by the Assembly which might seem to be open to a different construction must be considered in the light of this background to the end that the Charter shall be preserved in its present form unless and until it shall have been amended in the manner contemplated by Chapter XVIII.

One cannot lightly assume that the Assembly, in approving the Statute of the Administrative Tribunal, had any intention of inhibiting itself from acting where action might be needed. A reasonable approach to the problem in which the Charter as well as the Statute of the Tribunal are given their proper places will avoid any such assumption. We cannot reach a sustainable conclusion by examining the Statute in isolation. This undoubtedly was recognized by the Assembly when in its Resolution it asked the Court to have regard "to the Statute of the United Nations Adminis-trative Tribunal and to any other relevant instruments". Certainly the Charter is a relevant instrument. All other instruments, including the Statute, must be viewed in the light of and with due regard for the Charter.

In support of the contention that the General Assembly is without power to review decisions of the Administrative Tribunal it has been said that the Statute contains no reservation of such right. This argument is by no means convincing. I can readily admit that such a reservation might have simplified matters as they have since developed, but I cannot admit that such a reservation was at all necessary. The nature of the Tribunal, the method by which it was created and the purpose for which it was created belie any such notion. Any and all power not specifically delegated, including the power of review, was, as a matter of law, reserved to the Assembly.

It has also been emphasized that in establishing the Administrative Tribunal the General Assembly relied, or had the right to rely, upon certain implied powers under the Charter, and in particular the power to implement Article 101, paragraph 3, concerning the maintenance of a high standard of efficiency, etc. This, it is said, necessitated the establishment of a judicial Tribunal. The argument is not persuasive.

The doctrine of implied powers is designed to implement, within reasonable limitations, and not to supplant or vary, expressed powers. The General Assembly was given express authority by Article 22 of the Charter to establish such subsidiary organs as might be necessary for the performance of its functions, whether those functions should relate to Article 101 or to any other article in the Charter. Under this authorization the Assembly may establish any tribunal needed for the implementation of its functions. It is not, therefore, permissible, in the face of this express power, to invoke the doctrine of implied powers to establish a tribunal of a supposedly different kind, nor is there warrant for concluding [p81] that such a thing has resulted. It is of little consequence in the end result whether the Tribunal be described as a judicial, an arbitral or an administrative tribunal—which it is in fact called. No controlling significance is to be attached to the name or to the functions of the Tribunal.

On this first phase of the problem, then, I conclude that the Administrative Tribunal is a subsidiary organ of the General Assembly, and that decisions of the Tribunal are not immune from review by the Assembly, should occasion for such review arise.

***

In order the more clearly to understand the legal position of the Assembly vis-à-vis decisions of the Tribunal, it will be convenient to consider Articles 9 and 10 of the Statute in the inverse order, since if the provisions of Article 10 concerning the finality of judgments do not apply to the Assembly, arguments relating to supposed obligations under Article 9 lose much of their force.

The purpose to be served by the Administrative Tribunal is well known. It was to afford a remedy to members of the staff who might have a grievance against the Secretary-General, based on an alleged non-observance by him of their contracts of employment.

Within this limited field the Tribunal undoubtedly has competence to give decisions, which by Article 10 are declared to be "final and without appeal".

But this competence and this finality of decisions are not determinative of the broader question before the Court, that is to say, whether decisions of the Tribunal are binding on the United Nations in general and on the Assembly in particular.

It is common knowledge that decisions of a tribunal, be it a judicial or other tribunal, are binding only on the parties to the cases before it. This is but a statement of a general rule of law which finds expression in concrete form in Article 59 of the Statute of this Court, providing that:

"The decision of the Court has no binding force except between the parties and in respect of that particular case."

Now who are the parties to a case coming before the Administrative Tribunal?
The parties are the applicant (the staff member) on the one hand, and the Secretary-General or the specialized agency, as the case may be, on the other hand. This is made abundantly clear by the history incident to the creation of the Tribunal. It is made equally clear by Articles 9 and 12 of the Statute, by the Rules of procedure adopted by the Tribunal, and by the cases that have come before it. [p82]

The applicant is the party plaintiff and the Secretary-General, or the specialized agency, is the party defendant. The captions of the cases are: "[Name of staff member], Applicant, vs the Secretary-General of the United Nations, respondent". These parties are consistently referred to by the Tribunal as the "applicant and respondent" or as the "two parties". The subject-matter is a contested decision or action of the Secretary-General or of the specialized agency, as the case may be.

But is the General Assembly or the United Nations, as such, also a party to these cases?
It is difficult to see how this could be. The staff member has no.complaint against the Assembly or against the United Nations Organization. His complaint is against the Secretary-General. It is he who is alleged to have failed in some manner properly to honor the contractual rights of the staff member.

But it has been said that the Secretary-General represents the Organization and that therefore the Organization is responsible for his acts.

It is possible to carry this argument much too far. It is true that the Secretary-General is the chief administrative officer of the United Nations and that in that capacity he acts for the Organization. His official acts, in so far as concerns transactions between the Organization and outside entities, personal or juristic, such as contracts for the purchase of supplies and equipment, contracts for services, the lease of premises, etc., when performed within the scope of his authority, engage the responsibility of the Organization. These activities are governed by private law concepts. Disputes concerning them are the kind of disputes which, by Article VIII, Section 29, of the Convention of 1946 on the Privileges and Immunities of the United Nations, the United Nations was authorized to "make provisions for appropriate modes of settlement". (1, U.N. Treaty Series (1946-1947), 16, 30.)

But there is another category of activities in which the Secretary-General functions in quite a different capacity. This category pertains to the internal affairs of the Organization. This is a purely intra-organizational field. Operations within this field are not governed by private law concepts. They are governed by provisions of the Charter, and by regulations made pursuant to the Charter. It is within this field that disputes between staff members and the Secretary-General fall. They, to apply an analogy in international law, are disputes of a domestic character.

The Secretary-General and the staff, as we have seen, constitute the Secretariat, one of the principal organs of the United Nations. Disputes between members of the staff and the Secretary-General are disputes between component parts of that organ. They are not disputes between two organs of the United Nations, or between [p83] a principal organ, on the one hand, and the United Nations, on the other hand. They are not disputes between staff members and the United Nations as such or between staff members and the General Assembly.
If, then, they are not disputes between the staff member and the United Nations or between the staff member and the General Assembly, and if neither the United Nations nor the General Assembly is a party to a case coming before the Administrative Tribunal, where lies the justification for concluding that either is bound by a decision of the Tribunal?

It must follow, as a matter of law, that the statement in Article 10 of the Statute that decisions of the Tribunal shall be final and without appeal can only mean that they shall be final and without appeal as between the parties to the case, and neither the United Nations nor the General Assembly may be regarded as a party.

***

This brings us to a consideration of Article 9 of the Statute, stating that any award of compensation by the Tribunal shall be paid by the United Nations.

Here again, it does not suffice to look at the Statute alone and to apply to the language there used the ordinary rules of statutory construction. We cannot, as stated above, examine the Statute in isolation. We must examine it in the light of other relevant instruments. The Charter is such an instrument. The duty of a court when faced with apparent incompatibility between a legislative enactment- and the constitution (the Charter) is to try to reconcile the two. If this cannot be done the constitution must prevail.

The functions of the General Assembly as they were stated in the Dumbarton Oaks proposals were revised and elaborated at the San Francisco Conference. But throughout the discussions from Dumbarton Oaks to the signing of the Charter at San Francisco, the General Assembly was recognized as the organ of the United Nations to which should be entrusted the over-all control of the fiscal affairs of the Organization. It was given authority to "consider and approve" the budget, and to apportion among the Member States the "expenses of the Organization" (Article 17). It is both the taxing authority and the spending authority. In its relationship to the Organization it occupies a status of a quasi fiduciary character.

In the performance of these dual functions of raising and disbursing revenue, the General Assembly acts for and on behalf of the Organization. The importance which the Organization attaches to the exercise of these functions is shown by Article 18 of the Charter with respect to voting in the General Assembly. It is there [p84] stated that each Member shall have one vote, and that decisions on "important questions" shall be made by a "two-thirds majority of the members present and voting".

As a guide to the General Assembly in determining what questions should be regarded as important, and hence as requiring this two-thirds majority vote, there is set forth in Article 18 a list, not all inclusive, but a representative list, of subjects deemed by the Organization to occupy a pre-eminent position. Included in this list are "budgetary questions". This, then, clearly shows the importance attached by the parties to the Charter, to the fiscal affairs of the Organization. Indeed, budgetary or fiscal affairs of any organization, be it a national government, a municipality, a private corporation, a social or an eleemosynary institution, are elements of preoccupation in the life of the Organization.

Various methods of supervising fiscal affairs of national and lesser organizations with their checks and counter-checks have been devised. In the case of the United Nations, control over both the raising of revenue and of its expenditure is vested in the General Assembly. All Members of the United Nations have a direct interest in what the Assembly does in these matters. Their own national budgetary problems may be affected by wise or unwise expenditures made on their behalf by the General Assembly.

This brings us more directly to the focal question presented in the request for an opinion : Has the General Assembly the "right on any grounds to refuse to give effect to an award of compensation made by" the Administrative Tribunal in favor of a staff member of the United Nations whose contract of service has been terminated without his assent ?—or, stated in another way : Has the General Assembly, by approving the Statute of the Administrative Tribunal, deprived itself of the right to exercise its normal functions under the Charter, and in particular those pertaining to budgetary questions?

Those who have contended that awards by the Administrative Tribunal must be effectuated by payments, have advanced various reasons in support of their contentions, among them being the theory that a contractual relationship is established between the staff member and the United Nations, by reason of the fact that the Administrative Tribunal is referred to in the Staff Regulations. (Regulation II.2; as adopted by General Assembly Resolution 590 (V) of 2 February 1952 and amended by Resolutions 781A (VIII) and 782 (VIII)); also that the Tribunal is a judicial organ whose decisions must be respected.

These arguments do not go to the root of the question. Regulation 11.2 merely states that: [p85]

"The United Nations Administrative Tribunal shall, under conditions prescribed in its statute, hear and pass judgment upon applications from staff members alleging non-observance of their terms of appointment, including all pertinent regulations and rules."

It is difficult to see how this may be said to establish a contractual relationship between the staff member and the United Nations, placing upon the latter a duty to pay all judgments given by the Tribunal, regardless of their nature. Moreover, those who make this contention admit that the Assembly may at any time change the staff regulations. In fact, it is specifically stated in the Staff Rules (Chapter IV, Annex II (a) (i)) that the appointment is subject to changes "made in such regulations and rules from time to time".

The fact, if it be a fact, that the Administrative Tribunal is a judicial organ, does not place upon the Assembly an obligation to appropriate funds under Article 9 of the Statute in a pro forma manner. In the exercise of its budgetary authority the Assembly acts as a deliberative body with complete discretionary power to approve or refuse to approve any budgetary item, as in its judgment the interests of the United Nations and of good administration shall require. It is not permissible to conclude that by Article 9 of the Statute the Assembly has given, or ever intended to give, prior blanket approval to unpredictable amounts called for by awards of the Tribunal. There is no justification for ascribing to the Assembly such a broad curtailment of its constitutional functions.
In the final analysis the Administrative Tribunal, regardless of what we may call it, is not an organ created by the Charter. It does not have a constitutional status co-ordinate with the General Assembly. Precisely it is, as previously stated, a "subsidiary organ" of the Assembly.

But it has been urged that an award by the Administrative Tribunal establishes for the United Nations a debt or legal obligation, and for the staff member an acquired or vested right.

These conclusions must presuppose the existence of a valid award. No debt or legal obligation, having a fixed juridical status, may be said to result from an unjust judgment, nor can any acquired or vested right be said to result from such a judgment.

We may admit the existence of a right to have recourse to the Administrative Tribunal for the adjudication of a complaint, but an award by the Tribunal does not ipso facto create an obligation for the United Nations or a vested right in the staff member.

As a further argument in support of the thesis that the awards are binding on the Assembly it has been urged that by Article 9 of the Statute the Assembly has committed itself to the payment of [p86] monetary awards. But are we to conclude from this that Article 9 means that the Assembly has agreed to pay any and all awards regardless of whether they may, for some legitimate reason, seem to the Assembly not to merit that treatment? Does it mean that the Assembly has estopped itself from looking into an award which on its face may be open to question? Finally, does it mean that the Assembly has surrendered part of its functions in budgetary matters to a subordinate agency whose decisions it must honor by appropriations even though it may not agree with them? These questions seem to supply their own answers.

It is common knowledge that courts of law and other tribunals, however praiseworthy their intentions may be, are not infallible. In recognition of this fact appellate tribunals are usually provided. In this instance the Administrative Tribunal is the sole tribunal. There is, therefore, all the greater reason for rejecting the contention that the General Assembly has lost all control and is completely at the mercy of the Tribunal in the absence of incontrovertible evidence that such is the case.

If it be concluded that by Article 9 of the Statute the Assembly has surrendered its discretionary authority in budgetary matters to the extent of awards made by the Tribunal, and that it must appropriate the necessary funds to satisfy such awards, then, there is nothing in the Charter which would prevent the Assembly from making similar commitments to other subsidiary organs and thus gradually to whittle away all control in a field where it has been given complete control.
The Assembly is charged by the Charter with a duty to "consider and approve" the budget of the Organization. It manifestly is not permissible to abdicate, or to transfer to others, this essentially legislative function with which it has been so carefully invested.

What then do we understand to be the real meaning and effect of Article 9 of the Statute ? Must the Assembly honor judgments without question or does it have a right to question them?

A reasonable construction of Article 9, and one which is consonant with the Charter, is that in saying that in any case involving compensation the amount shall be fixed by the Tribunal "and paid by the United Nations", the Assembly was announcing a general policy to be followed by it in the ordinary course, but that it was not entering into an unqualified undertaking that in no event and under no circumstances would it withhold an appropriation. It was not saying that under no circumstances would it enquire into a judgment, or have it enquired into, even if there were apparent reasons for doing so. To summarize, we may draw these conclusions:

First, that in the exercise of its budgetary authority to which we have already referred, the Assembly can scarcely fail to consider [p87] an award when it forms an item in a budget to be voted;

Second, that the Assembly cannot close its eyes to an award if on its face it is open to serious question;

Third, that as part of the process of considering and adopting budgets, each Member of the Assembly has an express constitutional right to vote for or against any item in the budget; and

Fourth, that no Member of the Assembly may be deprived of this right.

It has been generally admitted that the Assembly has the "power" to withhold appropriations, and an effort has been made to draw a distinction between the exercise of a "power" and the exercise of a "right". And it has been said that in the situation here presented there is no legal right to decline to appropriate. This conclusion is wholly lacking in legal justification. It amounts to saying that the exercise of a constitutional right is not the exercise of a legal right. In declining to appropriate funds to effectuate an award the Assembly would not be exercising sheer power. It would be exercising not only "power" but an incontestable "legal right" conferred by the Charter, a right which, in my judgment, it has in no sense surrendered.

It follows that the provision in the Statute that awards of the Tribunal shall be paid by the United Nations does not deprive the Assembly of its right, when a question has been raised, to examine the award or to cause it to be examined. The decision is not res judicata in the sense that the Assembly is precluded from exercising its powers under the Charter. Even if we assume that the Assembly could surrender its prerogatives in this respect, we cannot assume that it has done so by innuendo.

In support of the proposition that decisions of the Tribunal create a legal liability for the Organization which it is not free to ignore, reference has been made to Section 21 of the Head-quarters Agreement between the United Nations and the United States of America of June 26, 1947, wherein provision is made for submitting to an arbitral tribunal for "final decision", any dispute concerning the interpretation or application of the Agreement. It is reasoned that a decision by the arbitral tribunal would be binding on the United Nations Organization and not merely on the Secretary-General, and that the General Assembly would have no legal right to repudiate the award (n, U.N. Treaty Series (1947), 12, 30).

This conclusion is not open to question. But it can hardly be said that a decision of the Administrative Tribunal is, from the point of view of its binding force, analogous to a decision of an [p88] arbitral tribunal under the Headquarters Agreement. The two situations are entirely different.

Section 21 of the Headquarters Agreement relates to disputes between the United Nations on the one hand and the United States of America on the other hand, and not to disputes between the United States and the Secretary-General. It provides that three arbitrators shall be chosen, one by the Secretary-General, one by the Secretary of State of the United States, and the third by agreement of the two, or, in the event of their failure to agree, by the President of this Court. Then follows a provision for a request by the General Assembly for an Advisory Opinion,' after which the arbitral tribunal shall render a final decision.

It is to be observed:

First, that the Headquarters Agreement is an agreement between the United Nations and a Member State;

Second, that the disputes there envisioned are disputes between the United Nations and the Member State;

Third, that in such a situation the Secretary-General acts merely in a nominal capacity as agent for the United Nations;

Fourth, that the Headquarters Agreement was concluded pursuant to the Convention on Privileges and Immunities, approved by the General Assembly on February 13, 1946. This Convention specifically conferred upon the United Nations, capacity (a) to contract, (b) to acquire and dispose of property, (c) to institute legal proceedings, and (d) to make provision for appropriate modes of settlement of "disputes arising out of contracts", etc. (1, U.N. Treaty Series (1946-1947), Art. VIII, Sect. 29, pp. 17, 30); and

Fifth, that the Privileges and Immunities Convention provided as a condition precedent to its coming into force as regards any Member of the United Nations, the deposit by that Member with the Secretary-General of an instrument of accession. Such instruments were deposited.

It will thus be apparent that decisions of an arbitral tribunal under the Headquarters Agreement occupy a status quite different from decisions of an Administrative Tribunal created by the General Assembly.

In the first place, decisions by the arbitral tribunal under the Headquarters Agreement have back of them an international convention.

In the second place, the disputes are disputes between the United Nations and a Member State, under an Agreement made pursuant to a Convention.

Whereas in the case of the Administrative Tribunal,

(a) it was not created pursuant to an international convention, but pursuant to authority of the General Assembly under the Charter to create subsidiary organs, and [p89]

(b) the disputes coming before the Tribunal are not disputes between the United Nations and a staff member, but between the Secretary-General and a staff member.

It must therefore be obvious- that from the point of view of the finality of decisions and the establishment of a legal liability of the United Nations, there is no analogy between the two situations.

What has just been said regarding the Headquarters Agreement applies with equal force to arbitration under the Agreement of July 1, 1946, between the United Nations and the Swiss Confederation concerning certain properties in the "Town of Geneva" (I, U.N. Treaty Series (1946-1947), 155).

Finally, it has been said that a decision of the Administrative Tribunal is a decision of a judicial organ and that the General Assembly is not empowered by the Charter to exercise judicial functions, and hence cannot review such a decision.

This would seem to be confusing two quite distinct procedural processes, i.e. that of review in the political or administrative sense, and that of review in the judicial sense. It is hardly to be expected that the Assembly would convert itself into a court of law exercising appellate jurisdiction in such cases. The notion of an appellant and a respondent is wholly excluded. The Assembly would be acting as a political body having responsibility for the proper functioning of one of its subordinate organs. It is not for the Court to say in what manner the power of review should be exercised. It is sufficient to say that the authority to review exists, and that it is for the Assembly to decide how best it may be exercised.

The only question before the Court is the abstract question of the right of the Assembly to decline "on any grounds" to give effect to an award of compensation. To this question I find no difficulty in giving an affirmative answer.

***
This brings me to the second question presented, namely, what are the "principal grounds upon which the General Assembly could lawfully exercise such right".

It is not to be supposed that the Assembly would desire to act on frivolous grounds, nor is it to be supposed that it would desire to act arbitrarily. This would not be in keeping with its purposes in creating the Administrative Tribunal. There must, in the nature of things, be an intermediate position between arbitrary action by the Assembly and compulsory action by it—a position which will safeguard the staff members vis-à-vis the Secretary-General and at the same time safeguard the Assembly and the United Nations.

We may take as our premise that in creating the Tribunal the Assembly had in mind (a) the protection of the contractual rights [p90] of members of the staff against faulty or arbitrary acts of the Secretary-General; (b) that it also had in mind protection of the Secretary-General against unreasonable and vexatious demands by members of the staff; and (c) that, in short, and in a broad sense, it had in mind the maintenance within the Secretariat of a proper esprit de corps.

An obvious departure by the Tribunal from these broad purposes, such as by denying relief where relief is warranted, or by granting a greater measure of relief than is warranted by the facts and the applicable Rules and Regulations would constitute a deficiency in the administrative process. The extent of the deficiency would be a major consideration in any given case, since no one can expect of any tribunal an unfaltering degree of perfection.

As part of this general picture it is appropriate to observe that there is a presumption that decisions of courts of law, especially courts of last resort, are just and proper. But this is a rebuttable presumption. It is common knowledge that justice is not always administered, and hence there may be a resulting denial of justice.

Denial of justice is a term well recognized in international law. It constitutes a sound basis for establishing State responsibility in the field of international reclamations. It serves as the justification for questioning and enquiring into decisions of national courts of last resort. The term has been variously defined and given varying shades of meaning by international tribunals, depending upon the nature of the cases before them. Examples of expressions used are: manifest injustice, an obvious error in the administration of justice, a clear and notorious injustice, fraud, corruption or wilful injustice, bad faith, a manifestly unjust judgment, a judgment that is arbitrary or capricious, a decision that amounts to an outrage, etc., etc.

I am not suggesting that judgments of the Administrative Tribunal might fall within any one of these categories. I am not here discussing any particular case or any group of cases. Such a dis-cussion is not envisaged by the questions submitted to the Court.

The Court is asked to consider only the abstract question of right to decline to make an appropriation to satisfy an award. To this I have answered that there is no justification for concluding that the General Assembly is bound to effectuate a decision which is not juridically sound, and which, because of the absence of juridical plausibility, does not command the respect of the Assembly. A proper administration of justice within the Secretariat must be the guiding criterion. A denial of justice in the sense of the prevailing jurisprudence on the subject should find no place in the United Nations Organization.

If I am correct in my conclusion stated above, that the Assembly has a right to review a decision of the Tribunal, as a corollary to [p91] its duty to "consider and approve the budget of the Organization" and to maintain a high standard of efficiency and integrity, it must follow that it may "lawfully" exercise that right with respect to any decision which does not commend itself to respectful and favorable consideration.

The principal grounds upon which the Assembly may lawfully exercise a right to decline to give effect to an award may be simply stated as follows:

(1) That the award is ultra vires;

(2) That the award reveals manifest defects or deficiency in the administration of justice;

(3) That the award does not reflect a faithful application of the Charter, the Statute of the Tribunal, or the Staff Rules and Regulations, to the facts of the case; and

(4) That the amount of the award is obviously either excessive or inadequate.

(Signed) Green H. Hackworth.

[p92]
DISSENTING OPINION BY JUDGE LEVI CARNEIRO

[Translation ]

Having, to my regret, given an answer different from that of the Court to the questions submitted to it, I must set out very briefly the grounds for my opinion.

In order to resolve these questions, it seems to me that the system of the United Nations regarded as a whole is of more importance than the literal meaning of a few words taken from the Statute and the Regulations. Indeed, even with regard to literal interpretation, this Court has already affirmed a principle laid down by the Permanent Court of International Justice:

“…words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd" (Competence of the General Assembly for the Admission of a State to the United Nations, I.C.J. Reports 1950, p. 8).

I. The United Nations Organization is based on "the principle of the sovereign equality of all its Members" (Charter, Article 2(1)), and the General Assembly is its only organ established by the Charter which is made up of representatives of all Member States.

(a) The General Assembly is the first of the six "principal organs" mentioned in Article 7 of the Charter.

(b) The General Assembly dominates the whole Organization, decisively intervening in the formation of the other principal organs, with a considerable control, varying in degree, over their activities and exercising an ever-widening influence in relation to the aims of the United Nations.

(c) The Assembly cannot surrender its prerogatives, nor can it irrevocably delegate them. This principle was recognized when the "Little Assembly" or "Interim Committee" was set up. The Assembly, moreover, possesses certain implied powers (Charter, Article II (4)).

(d) In order to lighten its burden, the Assembly can merely "establish such subsidiary organs as it deems necessary for the performance of its functions" (Charter, Article 22). The meaning of the word "subsidiary" is "anything which is of assistance to something which is of a principal order" ("subsidiaire: qui vient en aide a quelque chose de principal"—Littre, Dictionnaire). The functions assigned to the subsidiary organ always remain functions of the Assembly.

(e) In respect of the staff of the Secretariat, the Assembly ""establishes" the Regulations under which this staff is appointed by the Secretary-General (Charter, Article 101). Consequently, it [p93] also regulates the conditions in which these officials must leave. It supervises the application of these Regulations.

II. The "Administrative Tribunal" was given its name in the days of the League of Nations, possibly as a result of the influence of Albert Thomas, who was himself inspired by the terminology of French public law.

(a) "Administrative Tribunals"—whatever may be the binding force of their decisions—are not, and never have been, regarded in France as judicial organs: they are administrative organs (Laferrière, Contentieux administratif, Vol. I, p. 619; Louis Renault, Précis de droit administratif, pp. 38-40).

(b) The United Nations Administrative Tribunal was established by the General Assembly in accordance with the principles referred to above (I, c, d and e), and belongs to the system of the Organization.

(c) The terminology of the Statute does not justify the view that the United Nations Administrative Tribunal is a true and entirely independent judicial organ. The appellation "tribunal" has been applied to other organs of the United Nations which are not judicial bodies—"the Tribunal for Libya", "the Tribunal for Eritrea". When it is said that the "judgments" of the Tribunal shall be "final and without appeal" (Statute, Article 10 (2)), the reference is merely to the procedure to be followed: it did not prevent the Tribunal, in special circumstances, from reviewing its own previous decision, and it is not sufficient to prevent the General Assembly from refusing to give an effect to an award of compensation made by the Administrative Tribunal, an organ which is subsidiary in relation to it. The Statute provides that the Administrative Tribunal may "order the rescinding of the decision or the specific performance of the obligation", but at the same time it permits the Secretary-General to refuse to give effect to the decision, compensation being in that event awarded to the official. The decisions of Conseils de préfecture, which are likewise administrative tribunals, are referred to as "judgments" in recent French legislation. The provisions (Statute, Articles 9 (3) and 12), in accordance with which the compensation fixed by the Tribunal is to be paid by the United Nations or by a specialized agency, merely indicate by whom the compensation is to be paid, but they do not imply an unconditional obligation to make immediate and complete payment. Any other interpretation of these words would lead to "something unreasonable or absurd".

(d) Moreover, there is no requirement that members of the Administrative Tribunal should have any specialized training or, in particular, any legal qualification; they are not called "judges", they do not enjoy salaries which cannot be reduced, for the General Assembly can in fact fix and alter these salaries at its pleasure; [p94] they are elected by the General Assembly for the short term of three years. A member of the Tribunal can be dismissed by the Assembly if "the other members are of the unanimous opinion that he is unsuited for further service" (Statute, Article 3 (5)). Decisions are taken by three members of the Tribunal—less than half of its total membership—and the majority may consist of only two votes.

(e) When it established the Administrative Tribunal in 1949, the General Assembly of the United Nations could not have forgotten what had happened in 1946 with regard to certain decisions of the Administrative Tribunal of the League of Nations. Nothing was, however, done to prevent a further refusal by the General Assembly to give effect to a decision of the Tribunal: the provisions of the former Statute were retained; indeed, the word "member" was adopted to designate those who in the earlier Statute had been referred to as "judges".

(f) The General Assembly could only establish a subsidiary organ which was not a true judicial tribunal, for the General Assembly itself has no judicial functions for the reasons mentioned below (II h).

(g) Even for the purpose of governing the external relations of the Organization—that is, with regard to questions arising with a State or with third parties—in the Conventions of February 13th, 1946, June nth, 1946, July 1st, 1946, and June 26th, 1947, the United Nations merely provided for arbitral bodies which were not to be organs of the United Nations and whose decisions were to be subject to an Advisory Opinion of the International Court of Justice, or whose third arbitrator was to be appointed by the President of the International Court of Justice.

(h) For the purpose of governing the internal relations of the Organization—such as disputes between officials of the Secretariat and the Secretary-General—if the Assembly had established a judicial organ, that organ would inevitably be directly subordinated to the International Court of Justice, which is the "principal judicial organ of the United Nations" (Charter, Article 92). The decisions of the Administrative Tribunal of the International Labour Organisation are, by virtue of an express provision of its Statute, subject in certain cases to an Advisory Opinion of the International Court of Justice which is binding.

(i) The General Assembly is not a party to disputes decided by the Administrative Tribunal; it is only the Secretary-General who is the defendant. He is not referred to in terms—at least in the cases which I have seen—as the representative of the United Nations (see III, e).

(j) The decisions of an "administrative tribunal" thus constituted and functioning in this way (II, d) cannot have the weight [p95] of res judicata (see Georges Scelle, Manuel de droit international public, 1948, p. 665).

(k) The "United Nations Administrative Tribunal" is not independent ; nor is it a judicial organ ; it merely exercises "quasi judicial" functions. The General Assembly likewise exercises functions of this sort (Kelsen, The Law of the United Nations, p. 194).

III. The relationship between the Administrative Tribunal and the General Assembly, of which it is a "subsidiary organ", is clearly indicated by the powers of the General Assembly, and the conditions in which that body functions, which have been referred to above. The General Assembly may, as it has already done, modify the jurisdiction of the Tribunal, or it may abolish it. A number of rules which have already been adopted have limited the action of the Tribunal and the scope of its decisions.

(a) Changes of rules governing judicial organization and judicial procedure—even when truly and completely judicial—are applicable to earlier cases.

(b) The officials of the United Nations are bound by a "public law contract". In such a case, "a convention, whatever its provisions may be, cannot have the legal effect of limiting the competence of the Administration FN1" (Jèze, Principes généraux de droit administratif, 1926 éd., Vol. III, p. 430).

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(c) The Assembly is technically able—and under a duty—to control the action of the Administrative Tribunal, an organ which it has established to assist it in the performance of its functions. Although without judicial competence stricto sensu, it can, in respect of legal questions raised by decisions of the Administrative Tribunal, call upon the collaboration of its Sixth Committee (Legal Committee), of the International Law Commission and— as it has done in the present case—of the International Court of Justice.

(d) The decisions of the Administrative Tribunal are decisions of first instance: as a rule, the dispute must first be submitted to the Joint Appeals Body ; this is, however, merely an advisory body and its opinion may be dispensed with, it then being possible to submit the application directly to the Administrative Tribunal (Statute of the Administrative Tribunal, Art. 7).

(e) Decisions of the Administrative Tribunal, if not subject to control by the General Assembly, would have greater binding force than the judgments of the International Court of Justice itself: the General Assembly would have to give effect to them without question. The Tribunal could at its pleasure define the limits of the disciplinary powers of the Secretary-General, could [p96] interpret, apply or refuse to apply rules adopted by the General Assembly. The decisions of this "subsidiary organ" would be binding upon two "principal organs"—the General Assembly and the Secretary-General—even on matters within their own competence.

IV. In the present case, in accordance with the terms of the request for advisory opinion, what is in fact involved is the General Assembly's refusal to give effect to an award of compensation made by the Administrative Tribunal in favour of a dismissed official. The exercise of the Assembly's budgetary power is thus involved.

(a) It is for the General Assembly alone to approve the budget of the Organization (Charter, Art. 17 (1)). "Budgetary questions" are "important" and must be decided "by a two-thirds majority of the members present and voting" (Charter, Art. 18 (2)).

(b) Every increase in the expenditure of the Organization necessarily involves an increase of the contributions by Member States and must consequently affect the national budget of each of these States.

(c) I cannot conceive that the General Assembly can be obliged automatically to give effect to-decisions—and to lay upon Member States the ensuing financial burden—which may have been taken by only two members of one of its subsidiary organs, the Administrative Tribunal.

(d) The General Assembly "must" respect a legal obligation of the United Nations which has duly arisen or been validly recognized; but a decision of the Administrative Tribunal does not give rise to or amount to final recognition of an obligation of the United Nations.

(e) Payment of compensation awarded by the Administrative Tribunal may be made—as has been done in almost all cases—by the Secretary-General when there are funds provided by the budget which he may use for this purpose ; this he can do without any examination of the matter by the General Assembly, where the General Assembly itself has expressly or impliedly authorized such a course. In other cases, the General Assembly may refuse payment entirely or may allow only a part of the award, if it considers the decision of the Administrative Tribunal to have been ill-founded.

V. The rights, and indeed the interests, of officials must be guaranteed and respected. But in truth these rights and interests will not be any less guaranteed and respected by the deliberations of the direct representatives of the sixty Member States than by the Administrative Tribunal as at present organized. This is particularly true since: (1) the very existence of the Tribunal [p97] and the scope of its decisions are dependent upon decisions of the General Assembly, and (2) the General Assembly must always respect the presumption in favour of the legality and the validity of decisions of the Administrative Tribunal, thus exercising in good faith, discretion, and imbued with the spirit of justice, its prerogative of refusing to give effect, either in whole or in part, to any given decision.

(Signed) Levi Carneiro.

 
     

 

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