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[p77]
In the matter of Judgments Nos. 17, 18, 19 and 21 of the Administrative
Tribunal of the International Labour Organisation upon complaints made
against the United Nations Educational, Scientific and Cultural Organization
by Messrs. Duberg and Leff and Mrs. Wilcox and Mrs. Bernstein,
The Court,
composed as above,
gives the following Advisory Opinion :
By a letter of Noveinber 30th, 1955, filed in the Registry on December 2nd,
the Director-General of the United Nations Educational, Scientific and
Cultural Organization informed the Court that, by a Resolution dated
November 18th, 1955, the Executive Board of that Organization, acting within
the framework of Article XII of the Statute of the Administrative Tribunal
of the International Labour Organisation, had decided to challenge the
decisions rendered by the Tribunal on April z6th, 1955, in the Leff, Duberg
and Wilcox cases, and on October 29th, 1955, in the Bernstein case, and to
refer the question of their validity to the Court ; and that, accordingly,
the Executive Board, by a Resolution dated November 25th, 1955, a certified
true copy of which the Director-General appended to his letter, had decided
to request the International Court of Justice to give an advisory opinion on
a number of questions set out in the afore-mentioned Resolution, which is in
the following terms :
" The Executive Board,
Whereas by its Judgments Nos. 17, 18 and 19 of 26 April 1955, and No. 21 of
29 October 1955, the Administrative Tribunal of the International Labour
Organisation confirmed its jurisdiction in the complaints introduced by
3fessrs. Duberg and Leff and Mrs. Wilcox; and Mrs. Bernstein against the
United Nations Educational, Scientific and Cultural Organization,
Whereas Article XII of the Statute of the Administrative Tribunal of the
International Labour Organisation provides as follows :
'1. In any case in which the Executive Board of an international
organization which has made the declaration specified in Article II,
paragraph 5, of the Statute of the Tribunal challenges a decision of the
Tribunal confirming its jurisdiction, or considers that a decision of the
Tribunal is vitiated by a fundamental fault in the procedure followed, the
question of the validity of the decision given by the Tribunal shall be
submitted by the Executive Board concerned, for an advisory opinion, to the
International Court of Justice.
2. The opinion given by the Court shall be binding.'
Whereas the Executive Board, after consideration, wishes to avail itself of
the provisions of the said Article, [p 79]
Decides to submit the following legal questions to the International Court
of Justice for an advisory opinion :
Having regard to the Statute of the Administrative Tribunal of the
International Labour Organisation ;
Having regard to the Staff Regulations and Staff Rules of the United Nations
Educational, Scientific and Cultural Organization, and- to any other
relevant texts ;
Having regard to the contracts of appointment of Rlessrs. Duberg and Leff
and Mrs. Wilcox and Mrs. Bernstein :
I. —Was the Administrative Tribunal competent, under Article II of its
Statute, to hear the complaints introduced against the United Nations
Educational, Scientific and Cultural Organization on 5 February 1955 by
Messrs. Duberg and Leff and Mrs. Wilcox, and on 28 June 1955 by Mrs.
Bernstein ?
II. —In the case of an affirmative answer to question 1 :
(a) Was the Administrative Tribunal competent to determine whether the power
of the Director-General not to renew fixed-term appointments has been
exercised for the good of the service and in the interest of the
Organization ?
(b) Was the Administrative Tribunal competent to pronounce on the attitude
which the Director-General, under the terms of the Constitution of the
United Nations Educational, Scientific and Cultural Organization, ought to
maintain in his relations with a Member State, particularly as regards the
execution of the policy of the Government authorities of that Member State ?
III.—In any case, what is the validity of the decisions given b the
Administrative Tribunal in its Judgmerits Nos. 17, 18, 19 and 21 ?"
In accordance with Article 66, paragraph 1, of the Statute of the Court,
notice of the Request for an Advisory Opinion was given on December 8th,
1955, to all States entitled to appear before the Court : a copy of the
letter of the Director-General with the resolution appended thereto was
transmitted to those States.
The President of the Court considered that those States Members of the
United Nations Educational, Scientific and Cultural Organization which were
entitled to appear before the Court, the International Labour Organisation
as well as the international organizations which had recognized the
jurisdiction of the Administrative Tribunal of the International Labour
Organisation, namely, the World Health Organization, the International
Telecommunication Union, the United Nations Educational, Scientific and
Cultural Organization, the World Meteorological Organization, the Food and
Agriculture Organization of the United Nations and the European Organization
for Nuclear Research were likely to be able to furnish information on the
questions referred to the Court. Accordingly, the [p 80] Registrar, in
pursuance of Article 66, paragraph 2, of the Statute, notified these States
and Organizations that the Court would be prepared to receive written
statements from them within a time-limit fixed by ail Order of December 5th,
1955, at April 3oth, 1956.
Within this time-limit, the United Nations Educational, Scientific and
Cultural Organization, which had previously transmitted to the Court the
documents likely to throw light upon the question, together with an
introductory note, submitted a written statement with an appendix containing
the observations and information formulated by Counsel acting on behalf of
the persons in whose favour Judgments Nos. 17, 18, 19 and 21 of the
Administrative Tribunal of the International Labour Organisation were given.
Written statements were also submitted on behalf of the Governments of the
United States of America, of the French Republic, of the United Kingdom of
Great Britain and Northern Ireland, and of the Republic of China.
These written statements were communicated to States and Organizations to
whom the communication provided for in Article 66, paragraph 2, of the
Statute had been addressed. At the same time these States and Organizations
were informed that the Court did not contemplate holding public hearings in
the present case but that it had decided to permit them to submit in writing
their comments on the written statements at any time prior to July 1st,
1956.
Within this time-limit the Legal Adviser of the United Nations Educational,
Scientific and Cultural Organization sent to the Registry a letter dated
June 20th, 1956, in which, referring to certain aspects of the
jurisdictional issue before the Court, he stated the reasons why the
Organization did not intend to avail itself of the opportunity to submit
further arguments to the Court. It also transmitted to the Registry
supplementary observations formulated on behalf of the persons in whose
favour Judgments 17, 18, 19 and 21 were given.
In the present Opinion, the United Nations Educational, Scientific and
Cultural Organization will be referred to as Unesco, and the Administrative
Tribunal of the International Labour Organisation will be referred to as the
Administrative Tribunal.
***
The Resolution of November 25th, 1955, by which the Executive Board of
Unesco requested an Advisory Opinion of the Court, relies on Article XII of
the Statute of the Administrative Tribunal which as cited in the Resolution
and as applicable to Unesco reads :
"1. In any case in which the Executive Board of an international
organization which has made the declaration specified in Article II,
paragraph 5, of the Statute of the Tribunal challenges a decision of the
Tribunal confirming its jurisdiction, or considers that a decision [p 81] of
the Tribunal is vitiated by a fundamental fault in the procedure followed,
the question of the validity of the decision given by the Tribunal shall be
submitted by the Executive Board concerned, for an advisory opinion, to the
International Court of Justice.
2. The opinion given by the Court shall be binding."
Paragraph 5 of Article II, to which reference is made in Article XII, reads
:
"5. The Tribunal shall also be competent to hear complaints alleging
non-observance, in substance or in form, 'of the terms of appointment of
officials and of provisions of the Staff Regulations of any other
intergovernmental international organisation approved by the Governing Body
which has addressed to the Director-General a declaration recognising, in
accordance with its Constitution or internal administrative rules, the
jurisdiction of the Tribunal for this purpose, as well as its Rules of
Procedure."
Furthermore, Article II, paragraph 7, reads :
"7. Any dispute as to the competence of the Tribunal shall be decided by it,
subject to the provisions of Article XII."
Unesco recognised the jurisdiction of the Administrative Tribunal by making
the declaration provided for in Article II, paragraph 5, of the Statute of
the Tribunal.
Relying on Article XII quoted above, the Resolution of the Executive Board
challenged Judgments Nos. 17, 18 and 19 given on April 26th, 1955, in the
matter of the complaints of Mr. Peter Duberg, Mr. David Leff and Mrs.
Wilcox, and Judgment Xo. 21 given on October 29th, 1955, in the matter of
the complaint of Mrs. Bernstein.
The facts underlying the complaints were essentially the same in all four
cases and it is therefore sufficient to state them by reference to one of
the cases decided by the Tribunal, namely, that of Mr. Peter Duberg
(Judgment Xo. 17).
Duberg obtained a fixed-term appointment with Unesco on June 22nd, 1949.
That appointment, subsequently renewed, was due to expire on December 31st,
1954. In February 1953 Duberg received from the representative of the United
States to Unesco a questionnaire to be completed and returned in pursuance
of an Executive Order of the President of the United States of January 9th,
1953, prescribing procedures for making available to the Secretary-General
of the United Nations certain information concerning United States citizens
employed or being considered for employment on the Secretariat of the United
Nations. By virtue of Part 3 of that Order, its provisions were made
applicable to Unesco. The complainant did not answer the questionnaire. In
February 1954 the complainant received a questionnaire from the
International Organizations Employees Loyalty Board of the United States
Civil [p 82] Service Commission set up by Executive Order. He did not reply
to the questionnaire. In June 1954 he received an invitation to appear
before the Loyalty Board at the 'United States Embassy in Paris. On July
13th, 1954, the complainant informed the Director-General of Unesco of his
decision to refuse to appear before the Board and of the reasons of
conscience which caused him to take that decision. Previously, on July 6th.,
1954, the Director-General had issued an Administrative Memorandum on the
subject of the renewal of appointments expiring at the end of 1954. In that
Memorandum the Director-General had stated that "he has decided that all
professional staff members whose contracts expire between now and June 3oth,
1955 (inclusive), and who have achieved the required standards of
efficiency, competence and integrity and whose services are needed, will be
offered one-year renewals of their appointments". By a letter dated August
13th, 1954, the Director-General informed Duberg that he would not offer him
a new appointment on the expiry of his contract. This letter stated, inter
alia, as follows :
"... In the light of what I believe to be your duty to the Organization, I
have considered very carefully your reasons for not appearing before the
International [Organizations] Employees Loyalty Board where you would have
had an opportunity of dispelling suspicions and disproving allegations which
may exist regarding you.
It is with a deep sense of my responsibilities that I have come to the
conclusion that I cannot accept your conduct as being consistent with the
high standards of integrity which are required of those employed by the
Organization.
I have, therefore, to my regret, to inform you that I shall not offer you a
further appointment when your present appointment expires..."
Following an unsuccessful application to the Director-General to reconsider
his decision, Duberg submitted an appeal to the Unesco Appeals Board, asking
that the decision of the Director-General be rescinded. On November 2nd,
1954, the Appeals Board, by a majority, expressed the opinion that the
decision should be rescinded. On November 25th, 1954, the Director-General
informed the Chairman of the Appeals Board that he was unable to act in
accordance with its opinion. On February 5th, 1955, Duberg brought his
complaint before the Administrative Tribunal.
In its Judgment of April 26th, 1955, the Administrative Tribunal declared
itself competent to entertain the complaint. It gave the following reasons
for its decision :
"on competence
Considering that the character of a fixed-term appointment is in no way that
of a probationary appointment, that is to Say of a trial appointment; [p 83]
That while it is the case that Unesco Staff Rule 104.6 issued in application
of the Staff Regulations stipulates that: 'A fixed-term appointment shall
expire, without notice or indemnity, upon completion of the fixed term...',
this text only deals with the duration of the appointment and in no way bars
the Tribunal from being seized of a complaint requesting the examination of
the validity of the positive or negative decision taken regarding the
renewal of the said appointment;
That it is established in the case that the Director-General, by a general
measure of which the whole staff was informed on 6 July 1954, 'decided that
all professional staff members whose contracts expire between now and 30
June 1955 (inclusive) and who have achieved the required standards of
efficiency, competence and integrity and whose services are needed, will be
offered one-year renewals of their appointments' ;
That the complainant, having been made the object of an exception to this
general measure, holds that the Director-General could not legitimately thus
make an exception of him on the sole ground which he invoked against him as
justification for the view that he did not possess the quality of integrity
recognised in those of his colleagues whose contracts had been renewed, and
in the absence of any contestation of his qualities of competence and
efficiency ;
That the complainant requests that this decision be rescinded and,
alternatively, that an indemnity be granted ;
Considering that the question is thus a dispute concerning the
interpretation and application of the Staff Regulations and Rules of the
defendant Organisation ;
That by virtue of Article II, paragraph 1, of its Statute, the Tribunal is
competent to hear the said dispute ;"
After having declared itself competent, the Tribunal gave a decision on the
merits of the complaint. The Court is not called upon to express an opinion
on that part of the Judgment.
It appears from the terms of the Resolution requesting an opinion and the
citation, contained therein, of Article XII of the Statute of the
Administrative Tribunal that the challenge raised against the four
Judgments, and th6 Request for an Advisory Opinion related thereto, refer to
the jurisdiction of the Administrative Tribunal and to the validity of the
Judgments. The challenge and the Request for an Opinion do not refer to an
allegation that these Judgments are vitiated by a fundamental fault in the
procedure followed.
***
In formulating the Request for an Advisory Opinion, the Executive Board
exercised a power conferred upon Unesco by Article XI of the Agreement
between that Organization and the United Nations, approved by the General
Assembly on [p 84] December 14th, 1946. The General Conference, by its
amendment of Article V of the Constitution of November 16th, 1945, by which
Unesco was brought into being, authorised the Executive Board to exercise
that power between sessions of the General Conference.
The Court will consider at the outset whether it should comply with the
Request for an Opinion.
The question put to the Court is a legal question. It arose within the scope
of the activities of Unesco when the Executive Board had to examine the
measures to be taken as a result of the four Judgments. The answer given to
it will affect the result of the challenge raised by the Executive Board
with regard to these Judgments. In submitting the Request for an Opinion the
Executive
Board was seeking a clarification of the legal aspect of a matter with which
it was dealing.
Under Article XII of the Statute of the Administrative Tribunal, the Opinion
thus requested will be "binding". Such effect of the Opinion goes beyond the
scope attributed by the Charter and by the Statute of the Court to an
Advisory Opinion. However, the provision in question is nothing but a rule
of conduct for the Executive Board, a rule determining the action to be
taken by it on the Opinion of the Court. It in no wise affects the way in
which the Court functions ; that continues to be determined by its Statute
and its Rules. Nor does it affect the reasoning by which the Court forms its
Opinion or the content of the Opinion itself. Accordingly, the fact that the
Opinion of the Court is accepted as binding provides no reason why the
Request for an Opinion should not be complied with.
The Court is a judicial body and, in the exercise of its advisory functions,
it is bound to remain faithful to the requirements of its judicial
character. Is that possible in the present case ?
The four Judgments referred to in the Request for an Opinion are, under
Article VI, paragraph 1, of the Statute of the Tribunal, "final and without
appeal". However, Article XII, paragraph 1, of the Statute, in so far as it
was relied upon by Unesco, confers upon the Executive Board the right to
challenge "a decision of the Tribunal confirming its jurisdiction" and
provides that the Executive Board shall submit its challenge to the Court by
means of a Request for an Advisory Opinion. The Executive Board has availed
itself of that right.
The advisory procedure thus brought into being appears as serving, in a way,
the object of an appeal against the four Judgments, seeing that the Court is
expressly invited to pronounce, in its Opinion, which will be "binding",
upon the validity of these Judgments.
Article XII of the Statute of the Administrative Tribunal was designed to
provide that certain challenges relating to the validity of Judgments
rendered by the Tribunal in proceedings between an official and the
international organization concerned should [p 85] be brought before the
Court and decided by it. However, under Article 34, paragraph 1, of the
Statute of the Court "only States may be parties in cases before the Court".
In Article XII it was sought to avoid this difficulty while nevertheless
securing an examination by and a decision of the Court by means of a
Request, emanating from the Executive Board, for an Advisory Opinion. To the
Executive Board—and to it alone—was given the right of challenging a
Judgment of the Administrative Tribunal. The special feature of this
procedure is that advisory proceedings take the place of contentious
proceedings which would not be possible under the Statute of the Court.
The Court is not called upon to consider the merits of such a procedure or
the reasons which led to its adoption. It must consider only the question
whether its Statute and its judicial character do or do not stand in the way
of its participating in this procedure by complying with the Request for an
Advisory Opinion.
According to generally accepted practice, legal remedies against a judgment
are equally open to either party. In this respect each possesses equal
rights for the submission of its case to the tribunal called upon to examine
the matter. This concept of the equality of parties to judicial proceedings
finds, in a different sphere, an expression in Article 35, paragraph 2, of
the Statute of the Court which, when providing that the Security Council
shall lay down the conditions under which the Court shall be open to States
not parties to the Statute, adds "but in no case shall such conditions place
the parties in a position of inequality before the Court". However, the
advisory proceedings which have been instituted in the present case involve
a certain absence of equality between Unesco and the officials both in the
origin and in the progress of those proceedings.
In the first place, in challenging the four Judgments and applying to the
Court, the Executive Board availed itself of a legal remedy which u-as open
to it alone. Officials have no such remedy against the Judgments of the
Administrative Tribunal. Notwithstanding its limited scope, Article XII of
the Statute of the Administrative Tribunal in this respect confers an
exclusive right on the Executive Board.
However, the inequality thus stated does not in fact constitute ail
inequality before the Court. It is antecedent to the examination of the
question by the Court. It does not affect the manner in which the Court
undertakes that examination. Also, in the present case, that absence of
equality between the parties to the Judgments is somewhat nominal since the
officials were successful in the proceedings before the Administrative
Tribunal and there was accordingly no question of any complaint on their
part. This being so, it is not necessary for the Court to express an opinion
upon the legal merits of Article XII of the Statute of the Administrative
Tribunal. The Court must confine itself to the facts of the [p 86] present
case. In this respect, it is enough for it to state that the circumstance
that only the Executive Board was entitled to institute the present
proceedings does not constitute a reason for not complying with the Request
for ail Advisory Opinion.
The question of equality between Unesco and the officials arises once more
in connexion with the actual procedure before the Court. Here the absence of
equality flows not from any provision of the Statute of the Administrative
Tribunal but from the provisions of the Statute of the Court. In the form of
advisory proceedings, the Court has before it a challenge the result of
which will affect the right of the officials to the benefit of the Judgments
of the Tribunal and the obligation of Unesco to comply with them. The
judicial character of the Court requires that both sides directly affected
by these proceedings should be in a position to submit their views and their
arguments to the Court.
In the case of Unesco, the Statute and the Rules of Court constitute no
obstacle in this respect. Indeed, they make available to it the necessary
facilities. In the case of the officials, the position is different.
It was with that difficulty that the Court was confronted. The difficulty
was met, on the one hand, by the procedure under which the observations of
the officials were made available to the Court through the intermediary of
Unesco and, on the other hand, by dispensing with oral proceedings. The
Court is not bound for the future by any consent which it gave or decisions
which it made with regard to the procedure thus adopted. In the present
case, the procedure which has been adopted has not given rise to any
objection on the part of those concerned. It has been consented to by
counsel for the officials in whose favour the Judgments were given. The
principle of equality of the parties follows from the requirements of good
administration of justice. These requirements have not been impaired in the
present case by the circumstance that the written statement on behalf of the
officials was submitted through Unesco. Finally, although no oral
proceedings were held, the Court is satisfied that adequate information has
been made available to it. In view of this there would appear to be no
compelling reason why the Court should not lend its assistance in the
solution of a problem confronting a specialized agency of the United Nations
authorized to ask for an Advisory Opinion of the Court. Notwithstanding the
permissive character of Article 65 of the Statute in the matter of advisory
opinions, only compelling reasons could cause the Court to adopt in this
matter a negative attitude which would imperil the working of the régime
established by the Statute of the Administrative Tribunal for the judicial
protection of officials. Any seeming or nominal absence of equality ought
not to be allowed to obscure or to defeat that primary object. [p 87]
In the light of what has been said above and of the circumstances of the
present case, the Court considers that it ought to comply with the Request
for an Opinion.
***
The first question put to the Court is in the following terms :
"1.—Was the Administrative Tribunal competent, under Article II of its
Statute, to hear the complaints introduced against the United Nations
Educational, Scientific and Cultural Organization on 5 February 1955 by
Messrs. Duberg and Leff and 3irs. Wilcox, and on 28 June 1955 by Mrs.
Bernstein ?"
The Court is here invited to pass upon the competence of the Administrative
Tribunal. Article XII of the Statute of that Tribunal on which the Request
is based shows that what is involved is the decision of the Tribunal
confirming its jurisdiction, that is, the operative part of its Judgment on
this point. The Court is not confined to an examination of the grounds of
decision expressly invoked by the Tribunal; it must reach its decision on
grounds which it considers decisive with regard to the jurisdiction of the
Tribunal.
The words "competent to hear" used in the Request for an Opinion mean that
the question is one of determining whether the Administrative Tribunal was
legally qualified to examine the complaints submitted to it and to
adjudicate on the merits of the claims set out therein. The circumstance
that the Tribunal may have rightly or wrongly adjudicated on the merits or
that it may have rightly or wrongly interpreted and applied the law for the
purposes of determining the merits, in no way affects its jurisdiction. The
latter is to be judged in the light of the answer to the question whether
the complaint was one the merits of which fell to be determined by the
Administrative Tribunal in accordance with the provisions governing its
jurisdiction. That distinction between jurisdiction and merits is of great
importance in the legal régime of the Administrative Tribunal. Any mistakes
which it may make with regard to its jurisdiction are capable of being
corrected by the Court on a Request for an Advisory Opinion emanating from
the Executive Board. Errors of fact or of law on the part of the
Administrative Tribunal in its Judgments on the merits cannot give rise to
that procedure. The only provision which refers to its decisions on the
merits is Article VI of the Statute of the Tribunal which provides that its
judgments shall be "final and without appeal".
Before the Administrative Tribunal the officials concerned complained of the
refusal to renew their fixed-term contracts, a [p 88] refusal which they
encountered in the circumstances as recalled. They challenged before the
Appeals Board the argument that the holder of a fixed-term contract had no
right to the renewal of his contract. They alleged that, on the contrary,
they had an acquired right to the renewal of their contracts. In doing so
they relied, apart from general consideration: relating to the international
civil service and the practice of international organizations, on the
position taken with regard to the renewal of fixed-term contracts by the
Director-General in the Administrative Memorandum of July 6th, 1954, and on
a document submitted by him to the General Conference which refers, in this
connexion, to Staff Regulation 4.5.1. Their position, on this point, before
the Administrative Tribunal appears clearly when it is borne in mind that
they had been successful before the Appeals Board and that the latter, on
this point, had given as a reason for its opinion the meaning which it
attached to Staff Regulation 4 and to Staff Rule 52. On the other hand, the
written answer of Unesco, in challenging the case for the complainants,
relied on the interpretation which it put upon Staff Regulation 4.5.1, on
certain provisions of the Staff Rules, and, primarily, on the meaning which
it attributed to fixed-term contracts. All this serves to bring out the
issue of which the Administrative Tribunal was seised. The Court has to
consider whether the examination of these complaints fell within the
jurisdiction of the Administrative Tribunal under Article II, paragraph 5,
of its Statute which provides : "The Tribunal shall ... be competent to hear
complaints alleging nod-observance, in substance or in form, of the terms of
appointment of officials and of provisions of the Staff Regulations..."
The Court cannot attach to this provision any purely formal meaning so as to
require that the official should expressly indicate in his complaint the
particular term or provision on which he intends to rely. In the first
place, what must be alleged, according to Article II, paragraph 5, is
non-observance, namely, some act or omission on the part of the
Administration ; in the present case, the complainant invoked the refusal to
renew his contract. Secondly, the Tribunal is entitled to ascertain and to
determine what are the texts applicable to the claim submitted to it. In
order to admit that the Tribunal had jurisdiction, it is sufficient to find
that the claims set out in the complaint are, by their nature, such as to
fall within the framework of Article II, paragraph 5, of the Statute of the
Administrative Tribunal in the sense indicated in another part of this
Opinion.
According to the words of this provision, it is necessary, in order to
establish the jurisdiction of the Tribunal to hear a complaint by an
official, that he should allege non-observance of the terms or provisions
therein referred to. "Complaints alleging" is a wider expression than
"complaints based on". The latter may [p 89] be interpreted as meaning that
the object of such a complaint must be legally well-founded. Yet the Court,
when confronted with the words "claims ... based on the provisions" of a
treaty, considered that these words "cannot be understood as meaning claims
actually supportable under that Treaty" (Ambatielos case, Merits: Obligation
to arbitrate, I.C.J. Reports 1953, p. 17). This is particularly true in the
case of the more flexible expression "complaints alleging". These words
refer to what the complainant alleges—to that on which he relies for the
purpose of supporting his complaint. But Article II, paragraph 5, does not
mean that a mere verbal reference to certain terms or provisions would
suffice to establish the jurisdiction of the Administrative Tribunal. A mere
allegation by the complainant cannot be sufficient to cause the Tribunal to
accept it for the purpose of examining the complaint. In the Judgment
previously referred to, the Court, in construing the expression "based on",
said that "it is not enough for the claimant Government to establish a
remote connexion between the facts of the claim and the Treaty" invoked.
However, it proceeded to add that "it is not necessary for that Government
to show ... that an alleged treaty violation has an unassailable legal
basis" (ibid., p. 18). Similarly, in applying Article II, paragraph 5, the
Court considers that this intermediate position must be adhered to, namely,
that it is necessary that the complaint should indicate some genuine
relationship between the complaint and the provisions invoked, but that it
is not required that the facts alleged should necessarily lead to the
results alleged by the complainants. Any such requirement would confuse the
question of jurisdiction with that of the substance. In the cases here in
question, the officials put forward an interpretation of their contracts and
of the Staff Regulations to the effect that they had a right to the renewal
of their contracts. They alleged that the Administrative Memorandum was
complementary to their contracts and to the Staff Regulations and that it
gave them a legal right to renewal. The correctness of these allegations
constitutes the substance of the issue which they submitted to the Tribunal.
III order to determine the jurisdiction of the Tribunal, it is necessary to
ascertain whether the terms and the provisions invoked appear to have a
substantial and not merely an artificial connexion with the refusal to renew
the contracts.
***
In the light of what has been said above, the Court will now examine the
question whether, for the purpose of accepting jurisdiction, the
Administrative Tribunal was entitled to find that there existed before it a
complaint sufficient to bring it within the scope of (a) "terms of
appointment" or (b) "Staff Regulations". These two aspects of the question
will be considered in turn. [p 90]
Duberg's contract, as renewed on the last occasion, was due to expire on
December 31st, 1954. He maintained that that contract gave him a right to a
renewal of the contract. Was that assertion sufficiently well-founded to
establish the competence of the Administrative Tribunal ? For that purpose,
it was necessary that the assertion should have some serious juridical
basis. The question of renewal arose at the time when Duberg's contract was
still in force. It was in August 1954 that the decision not to renew his
contract was taken ; that decision was subsequently confirmed and maintained
after November 25th, 1954, following upon the opinion of the Appeals Board
invoked by Duberg; Duberg's contract did not expire until December 31st,
1954. Furthermore, the contract of employment expressly refers to the Staff
Regulations and Rules, as well as to any amendments thereto. The expression
"terms of appointment" which is used in the English text of the Statute of
the Administrative Tribunal and which also appears in the document relating
to Duberg's engagement—an expression which seems to be both wider and more
appropriate than the expression "stipulations du contrat d'engagement—must
he understood in relation to the attitude assumed in the matter by the
Director-General. Now the latter, in his Administrative Memorandum of July
6th, 1954, adopted a position with regard to the renewal of fixed-term
contracts. He announced and brought to the knowledge of the staff his
intention to offer a renewal of these contracts under certain specified
conditions. This signified, on his part, a decision to recognize or
establish a link between the contracts which were due to expire and their
renewal. What was the nature of that link ? Did it go so far as to confer
upon Duberg a legal right to obtain the renewal of his contract ? These
questions are sufficiently related to the interpretation of the contract of
employment, in terms of its observance or non-observance, to permit a
finding that they fell within the competence of the Administrative Tribunal.
In saying this, the Court does not pass on the question whether Duberg
fulfilled the conditions required in the Administrative Memorandum for the
renewal of his contract. That question is not before the Court.
***
The Court cannot admit that in order to appreciate the legal situation in
the matter it is possible to attach exclusive importance to the letter of
the contracts in question and, in particular, to the provision according to
which, in case of non-renewal, these contracts expire automatically on the
date fixed. The officials claimed to derive a right to renewal from their
fixed-term contracts. They complained of the fact that such renewal was
denied to them and it was that refusal which they regarded as non-observance
of their contracts. It is clear that the mere expiry of the term fixed in
the contract could not have the effect of nullifying [p 90] this
non-observance occurring, if in fact it did occur, before the expiry date
and of depriving the o5cials of their right to complain of it before the
Administrative Tribunal. In fact, Article II, paragraph 6, of its Statute
provides: "The Tribunal shall be open: (a) to the official, even if his
employment has ceased..."
The Court is of the opinion that, in order to decide on the competence of
the Administrative Tribunal, it is necessary to consider these contracts not
only by reference to their letter but also in relation to the actual
conditions in which they were entered into and the place which they occupy
in the Organization.
In the practice of Unesco—as well as in the practice of the United Nations
and of the Specialized Agencies—fixed-term contracts are not like an
ordinary fixed-term contract between a private employer and a private
employee. At the crucial period a large number of the employees of Unesco
held fixed-term contracts. A similar situation seems to have obtained in the
United Nations and in the Specialized Agencies. There is no need here to go
into the reasons which have prompted that form of contracts. The fact is
that there has developed in this matter a body of practice to the effect
that holders of fixed-term contracts, although not assimilated to holders of
permanent or indeterminate contracts, have often been treated as entitled to
be considered for continued employment, consistently with the requirements
and the general good of the organization, in a manner transcending the
strict wording of the contract. In a document entitled "Personnel
Recruitment Standards and Methods", which was submitted, under the authority
of the Director-General, to the General Conference at its Eighth Session in
1954, it was stated in paragraph 26 that "the existing Regulation 4.5.1,
adopted by the Seventh Session of the General Conference, obliges the
Director-General to give indeterminate appointments to all staff members
after they have satisfactorily completed a fixed-term appointment of one to
three years, unless he considers that" in the light of programme
requirements, "he should only give a further fixed-term appointment". In
paragraph 14 of the same document may also be noted the statement that "if a
staff member has fulfilled his duties efficiently and his conduct is
satisfactory, his appointment is, in most cases, renewed". At the
Seventeenth Meeting of the Administrative Commission during the Eighth
Session of the General Conference the Director-General stated on November
29th, 1954, "that, under the existing paragraph 4.5.1 of the Staff
Regulations, he was under an obligation to renew a contract for an
indeterminate period (provided the person satisfied all the requirements),
unless he could invoke programme needs as a reason for not doing so". The
practice as here surveyed is a relevant factor in the interpretation of the
contracts in question. It lends force to the view that there may be
circumstances in which the non-renewal of a fixed-term contract provides a
legitimate ground for complaint. [p 92]
***
The practice referred to above should serve as a warning against an
interpretation of the contract of employment which, by considering
exclusively the literal meaning of its provision relating to duration, would
mean that on the expiry of the fixed period a fixed-term contract cannot be
relied upon for the purpose of impugning a refusal to renew it. Such an
interpretation, moreover, would fail to take into account the nature of
renewal as understood in the Staff Regulations to which the contract
expressly refers. This is an aspect of the matter which has to be considered
in order to determine whether, as has been argued, the holder of a
fixed-term contract is, so far as its renewal is concerned, in the same
legal position as an applicant for employment seeking to enter the service
of Unesco.
Clearly, an applicant for a new appointment who fails to obtain it cannot
properly invoke the jurisdiction of the Administrative Tribunal. Can the
same be said of an official who fails to obtain a renewal of his fixed-term
contract ? The question of the renewal of a fixed-term contract arises for
one who is at the time a staff member of Unesco. That was the position of
the four complainants. The text governing their appointments was Staff
Regulation 4.5.1, which provided as follows :
"Other staff members shall be appointed on fixed-term contracts for an
initial period of not less than one nor more than three years, renewable
either (a) without limit of time, or (b) in the light of programme
requirements, for further fixed periods of not less than one year up to a
maximum period of service of five years, at the discretion of the
Director-General. Staff members appointed before 1 January 1952 shall be
deemed, for the purpose of this regulation, to have been appointed on that
date, without prejudice to their acquired rights in other respects."
The words "fixed-term contracts ... renewable" imply that renewal
constitutes a further stage, a continuing period, of the former contract.
There is no question here of a new contract wholly unrelated to its
predecessor. That character of renewal is confirmed by a distinction between
fixed-term contracts, which may be renewed, and temporary contracts in
respect of which there is no provision for renewal. Staff Rule 52 (d)
provided as follows :
"A fixed-term appointment shall expire upon completion of the fixed-term
unless a new appointment is offered and accepted three months before the
expiry date, if the staff member has served for [p 93] less than one year or
six months before the expiry date, if he has served for more than one year."
On the other hand, Staff Rule 53 (d) said merely : "A temporary appointment
shall expire on the expiry date specified in the contract without notice or
indemnity."
From the use of the expression "new appointment" in Rule 52 (d), cited
above, it cannot be concluded that what is currently called "renewal" is an
appointment without any link with what precedes it and that the official to
whom such renewal has been offered or refused is in the same situation as an
applicant who is new to the staff of Unesco and wishes to enter it for the
first time. The proper meaning of the expression "new appointment" does not
lend itself to any such interpretation, and the Administration has not
understood it in that sense. In fact, the Director-General introduced in
Rule 52 (d), which has become Rule 104.6, a modification which entered into
force on November 1st, 1954, and which consists in the substitution of the
expression "renewal" for the expression "new appointment". It is the text
thus amended which the Administrative Tribunal has cited in the reasons for
its decision on competence.
The view that there is a link between renewal and the original contract and
that the situation here envisaged is different from that arising in the case
of granting a new contract to ail applicant corresponds to the accurate
meaning of the term "renewal". That view is also in accordance with the fact
that at the time when the question of renewal arises the interested person
is an official of the Organization and not a stranger to it. This is the
reason why Rule 52 (d), both in its original version and in the amended text
(which became Rule 104.6 (d), then Rule 104.6 (e)), after having stated that
the original appointment expires on the fixed date, adds, by way of
exception, the following words: "unless a new appointment [or renewal] is
offered and accepted" and this "before the expiry date" of the original
appointment. This confirms the view that in cases of renewal it is the
initial appointment which remains in existence and not a new appointment
independent of its predecessor.
Similarly, Staff Rule 61 (which has become Rule 104.14) which is concerned
with re-employment, shows that the latter is something different from the
renewal of an appointment. The renewal of an appointment is effected
differently from the grant of an original appointment. A comparison between
paragraphs 13 and 14 of the Personnel Recruitment Standards and Methods
makes the position clear. In paragraph 14, the following sentence occurs :
"If a staff member has fulfilled his duties efficiently and his conduct is
satisfactory, his appointment is, in most cases, renewed." The passage
quoted suggests that the renewal is something fundamentally different from
the granting of a new appointment; at the same time it indicates that a
diligent staff member may normally expect renewal. The use of the word
"review" in the heading of the English text [p 94] of paragraph 14 confirms
the impression that the renewal is based on an examination of the record of
service of the official concerned.
The provision, quoted above, of Staff Regulation 4.5.1, .under which a staff
member appointed on a fixed-term contract cannot be kept in that status for
a period of service of more than five years, similarly implies that it is
the original contract which continues in existence up to that maximum
period.
Reference may also be made to the form given by the General Conference at
its Eighth Session in 1954 to Staff Regulation 4.2, which thereafter
provided as follows :
"In appointing, transferring or promoting staff members, and in renewing
appointments, the Director-General shall aim at securing the highest
standards of efficiency, competence and integrity."
The words in italics were added in 1954. The fact that it was considered
desirable to make this addition indicates that the renewal of an appointment
was considered as being somewhat different from the act of "appointing"
referred to in the earlier text. Finally—and this is more than a matter of
technical detail —it is of interest to note that the document entitled
"Notice of Personnel Action", which is attached to the original Letter of
Appointment, defines the type of action as "appointment" whereas that
attached to the second Letter of Appointment defines the type of action as
"extension of contract”—a wording which recalls the notion of an original
contract .whose duration is simply prolonged.
All this shows that there is a relationship, a legal relationship, between
the renewal and the original appointment and, consequently, between the
renewal and the legal position of an officialat the moment when his claim to
renewal is granted or denied. Does that relationship go so far as to create
in his favour, as has been claimed, a definite right to renewal ? That is a
question which pertains to the merits and which it is not necessary for the
Court to answer. It is sufficient to note that the complaint of the
appellant was related to the link created between the original contract and
its renewal—a link clearly established by the Staff Regulations and Rules to
which the contract expressly makes reference and which constitute the legal
basis on which the interpretation of the contract must rest. Thus the
complainant, in claiming to possess a right to renewal of his contract and
in claiming that that right had been infringed, was placing himself on the
ground of non-observance of the terms of appointment. [p 95]
***
The legal relationship thus found to exist between a fixed-term contract and
its renewal—a relationship which constitutes the legal basis of the
complaints of the officials—shows itself once more in the decision taken by
the Director-General in the Administrative 3lemorandum of July 6th, 1954.
In this Memorandum the Director-General announced that he had "decided that
all professional staff members" who satisfied certain conditions and whose
services were needed would "be offered one-year renewals of their
appointments". It was possible to maintain that the effect of the Memorandum
was to create a right to the renewal of the contracts. The Court considers
that it could reasonably be maintained that an administrative notice framed
in such general terms might be regarded as binding on the Organization ; and
that the necessity, asserted by Unesco, of an individual offer and an
individual acceptance of the offer was, in the circumstances, a matter of
form rather than of substance. It is not necessary for the Court to decide
whether the legal consequences thus envisaged actually followed from the
Administrative Memorandum. In any case, the Court considers that if the
Director-General thought fit to refuse to an official the benefit of the
general offer thus extended, any dispute which might arise with regard to
the matter fell within the jurisdiction of the Administrative Tribunal.
***
It follows from the preceding considerations that the Administrative
Tribunal was entitled to assume that the complaints required it to
adjudicate on an alleged non-observance of the terms of appointment, and,
consequently, to declare itself competent to hear them. In the course of
those considerations, the Court referred to the provisions of the Staff
Regulations and of the Staff Rules. On this ground, which constitutes a
second basis for the jurisdiction of the Administrative Tribunal, the Court
feels it necessary to add certain observations which serve to confirm the
conclusions already reached.
Before the Administrative Tribunal, Unesco contended that the complaints of
the officials were based "on a profound ... misinterpretation of
implications of temporary appointments" ; that they involved a "revolution
in the system of temporary contracts" ; and that Unesco sought "to define
... the terms 'permanent contract' and 'temporary appointment' [... and...]
the different situations to which they correspond and their respective legal
consequences". It was thus putting itself on the ground of the provisions of
the Staff Regulations, that is, on the ground covered by the jurisdiction [p
96] of the Administrative Tribunal as defined in Article II, paragraph 5, of
its Statute. Conversely, in the Duberg case the complainant analysed under
three points the arguments of the Director-General : (1) the appellant had
no acquired right to the renewal of his contract ; (2) the Director-General
was not bound to state his reasons for non-renewal; and (3) his decision in
the matter was not subject to the control of a jurisdictional body. The
complainant contested these propositions. He did so .in reliance not only on
the terms of the contract, but also of the Staff Regulations.
Under Staff Regulations 4.5.1, the renewal of fixed-term contracts was made
subject to "programme requirements". The Director-General took the view that
he could not anticipate what might be decided with regard to this point by
the General Conference, which was to meet at the end of 1954. This fact
explains why he took no action with regard to the renewal of Duberg's
contract, which was due to expire on December 31st, 1954, before the date
fixed for this purpose by Staff Rule 52 (d), which subsequently became Rule
104.6 (d). In these circumstances, the Director-General, believing "that
there is general agreement that the personnel policy of the Organization
should be based on the concept of an international civil service and should
be aimed at retaining on a permanent basis those staff members who achieve
the highest standards of efficiency, competence and integrity and whose
services are needed", issued, on July 6th, 1954, an Administrative
Memorandum on the subject of "Renewal of appointments expiring end 1954 and
early 1955". In this Memorandum, the Director-General announced that he had
"decided that all professional staff members" whose contracts would shortly
expire and "who have achieved the required standards of efficiency,
competence and integrity and whose services are needed, will be offered
one-year renewals of their appointments". What was the character of that
Memorandum ? In the view of the Court it constituted a modification of the
Staff Rules then in force—a modification which the Director-General was
authorized to make under Staff Regulation 12.2. By virtue of that
modification, Article 52 (d) of the Staff Rules was provisionally altered.
All officials whose contracts would expire between July 6th, 1954, and June
3oth, 1955, and who possessed the required qualifications, were now informed
that they would be offered a renewal of one year. The prescribed period of
three months or six months had ceased to be relevant. The resulting
situation shows that the Administrative Memorandum was related to the
application of the Staff Regulations.
Finally, there are two other factors which bring the Administrative
Memorandum of July 6th, 1954, within the terms of Article II, paragraph 5,
of the Statute of the Administrative Tribunal. In the first place it
referred to the phrase "in the [p 97] light of programme requirements"
embodied in Staff Regulation 4.5.1. In the second place, the Memorandum
relied by implication on Staff Regulation 4.2, which lays down that in
appointing, transferring or promoting staff members, the Director-General
shall aim at securing the highest standards of efficiency, competence and
integrity. The controversy submitted to the Administrative Tribunal centred
around the notion of integrity referred to both in the Memorandum and in
Staff Regulation 4.2. Indeed that was the crucial point in reliance on which
the complaint challenged the decision of the Director-General as open to
attack. From this point of view, the allegation of non-observance of Staff
Regulations seems clearly to fall within the jurisdiction of the Tribunal.
It follows from the preceding considerations that whether looked at from the
point of view of non-observance of the terms of appointment or of that of
non-observance of Staff Regulations, the question was, as stated by the
Administrative Tribunal in the reasons which it gave for its decision in the
matter of competence, one of a "dispute concerning the interpretation and
application of the Staff Regulations and Rules of the defendant
Organisation" and that, in consequence, the Tribunal was justified in
confirming its jurisdiction.
***
The Court has not lost sight of the fact that both before the Administrative
Tribunal and in the statements submitted to the Court it has been contended,
on the one hand, that the Administrative Tribunal was an international
tribunal and, on the other hand, that it was a Tribunal of limited
jurisdiction ("juridiction d'attribution") and not of general jurisdiction
("juridiction de droit commun"). That contention has been put forward with a
view to achieving a restrictive interpretation of the provisions governing
the jurisdiction of the Tribunal. The Court does not deny that the
Administrative Tribunal is an international tribunal. However, the question
submitted to the Tribunal was not a dispute between States. It was a
controversy between Unesco and one of its officials. The arguments, deduced
from the sovereignty of States, which might have been invoked in favour of a
restrictive interpretation of provisions governing the jurisdiction of a
tribunal adjudicating between States are not relevant to a situation in
which a tribunal is called upon to adjudicate upon a complaint of an
official against an international organization.
The Court recognizes that the Administrative Tribunal is a Tribunal of
limited jurisdiction. Accordingly, the Court has proceeded on the basis of
the provision which confers upon the Tribunal jurisdiction in the matter of
"complaints alleging non-observ-[p 98]ance, in substance or in form, of the
terms of appointment of officials and of provisions of the Staff
Regulations". The Court has acted upon that provision and upon the other
relevant provisions of the Staff Regulations. In doing so the Court has
relied on the wording of the texts in question as well as on their spirit,
namely, the purpose for which they were adopted. That purpose was to ensure
to the Organization the services of a personnel possessing t-he necessary
qualifications of competence and integrity and effectively protected by
appropriate guarantees in the matter of observance of the terms of
employment and of the provisions of the Staff Regulations. It is in that way
that the Court arrived at what it considers to be the correct interpretation
of Article II (5) of the Statute of the Administrative Tribunal and the
proper application of Chat provision to the case submitted to it. It was not
necessary for it, for that purpose, to have recourse to any principles of
either restrictive or extensive interpretation.
The Court, having decided to give an affirmative answer to Question 1, will
now examine Question II as put to it in the Request for an Advisory Opinion.
That question is as follows :
"II.—In the case of an affirmative answer to question 1 :
(a) Was the Administrative Tribunal competent to determine whether the power
of the Director-General not to renew fixed-term appointments has been
exercised for the good of the service and in the interest of the
Organization ?
(b) Was the Administrative Tribunal competent to pronounce on the attitude
which the Director-General, under the terms of the Constitution of the
United Nations Educational, Scientific and Cultural Organization, ought to
maintain in his relations with a h4ember State, particularly as regards the
execution of the policy of the Government authorities of that Member State
?"
Article XII of the Statute of the Administrative Tribunal provides for a
Request for an Advisory Opinion of the Court in two clearly defined cases.
The first is where the Executive Board challenges a decision of the Tribunal
confirming its jurisdiction ; the second is when the Executive Board
considers that a decision of the Tribunal is vitiated by a fundamental fault
in the procedure followed. The Request for an Advisory Opinion under Article
XII is not in the nature of an appeal on the merits of the judgment. It is
limited to a challenge of the decision of the Tribunal confirming its
jurisdiction or to cases of fundamental fault of procedure. Apart from this,
there is no remedy against the decisions of the Administrative Tribunal. A
challenge of a decision confirming [p 99] jurisdiction cannot properly be
transformed into a procedure against the manner in which jurisdiction has
been exercised or against the substance of the decision.
There is no reference in Question II either to a fundamental fault of
procedure or to the decision of the Tribunal confirming its jurisdiction.
This is so although the two parts of that question are formulated in terms
of "competence". For these arc questions relating to the reasons given by
the Tribunal for its decision on the merits of the question submitted to it.
The reasons given by the Tribunal for its decision on the merits, after it
confirmed its jurisdiction, cannot properly form the basis of a challenge to
the jurisdiction of the Tribunal. Question 1 of the present Request for an
Opinion is concerned only with a challenge of the decision confirming
jurisdiction. It does not refer to the other ground of challenge provided
for in Article XII, namely a fundamental fault in the procedure followed.
The Statute of the Administrative Tribunal could have provided for other
reasons for challenging the decision of the Tribunal than those referred to
in Article XII. It has not done so. In view of this, the Court cannot answer
Question II within the framework of Article XII of the Statute of the
Tribunal—the only Article by reference to which the Opinion of the Court is
invoked.
Undoubtedly, Unesco has the general power to ask for an Advisory Opinion of
the Court on questions within the scope of its activity. But the question
put to the Court has not been put in reliance upon the general power of
Unesco to ask for an Advisory Opinion. It has been expressly linked with
Article XII. In its terms and by virtue of the place which it occupies in
the Resolution requesting the Advisory Opinion, Question II as put to the
Court refers to the judgments which the Executive Board has challenged in
relation to the jurisdiction of the Tribunal which rendered these judgments.
It is on that basis that the question must be considered by the Court. The
Court has found that the object of that Question is outside the matter
which, in the judgments which have been challenged, is germane to the
jurisdiction of the Tribunal. In the Request for an Advisory Opinion,
Question II has been placed within the orbit of Article XII. Actually, it is
outside that Article. Accordingly, it cannot be considered by the Court for
the purpose of acting upon the request made to it.
***
As, for the reasons stated, the Court is not in the position to answer
Question II, it need not be concerned with some of the wider issues argued
at length before the Tribunal and in the written statements submitted to the
Court. These issues include that of the law obtaining in various municipal
systems as to the position of the employees of the State, the nature of
their employment and the [p 100] principles of judicial review governing the
tenure and the conditions of their service. These questions do not arise in
the present case.
Similarly, the Court need not consider the allegation that the Tribunal,
which was competent to hear the complaint, committed an excess of
jurisdiction and acted ultra vires in the decision which it gave. Article
XII of the Statute of the Tribunal only refers to a challenge of "a decision
of the Tribunal confirming its jurisdiction". A Request for an Advisory
Opinion based on that Article cannot, contrary to the contention of Unesco,
extend to an allegation that the Tribunal "went beyond the bounds of its
competence in its consideration of the disputes". Any such allegation, even
if it were well-founded, could not lead to the conclusion that the Tribunal
was not competent to hear the complaint.
In view of this the Court need not examine the allegation that the validity
of the judgments of the Tribunal is vitiated by excess of jurisdiction on
the ground that it awarded compensation ex aequo et bono. It will confine
itself to stating that, in the reasons given by the Tribunal in support of
its decision on the merits, the Tribunal said: "That redress will be ensured
ex aequo et bono by the granting to the complainant of the sunm set forth
below." It does not appear from the context of the judgment that the
Tribunal thereby intended to depart from principles of law. The apparent
intention \vas to say that, as the precise determination of the actual
amount to be awarded could not be based on any specific rule of law-, the
Tribunal fixed what the Court, in other circumstances, has described as the
true measure of compensation and the reasonable figure of such compensation
(Corfu Channel case, Judgment of December 15th, 1949, I.C.J. Reports 1949,
p. 249).
***
Question III submitted to the Court is as follows :
"III.—In any case, what is the validity of the decisions given by the
Administrative Tribunal in its Judgments Nos. 17, 18, 19 and 21?"
Under Article VI of the Statute of the Administrative Tribunal, its
judgments "shall be final and without appeal". However, Article XII
authorizes the Executive Board to challenge those judgments, but only on the
ground of lack of jurisdiction or of fundamental fault in the procedure
followed. In case of such a challenge, it is for the Court to pass, by means
of an Opinion having binding force, upon the challenge thus raised and,
consequently, upon the validity of the judgment challenged. The four
judgments have been challenged only in respect of the competence of the
Administrative Tribunal which rendered them. If the Court had upheld this
challenge it would have had to declare the judgments invalid. The Court,
having rejected the contention relating to jurisdiction, the only contention
[p 101 ]raised by the Executive Board, will consequently answer Question III
by a finding in favour of the validity of the four judgments.
For these reasons,
The Court decides,
by nine votes to four,
to comply with the Request for an Advisory Opinion ;
The Court is of opinion,
With regard to Question I:
by ten votes to three,
that the Administrative Tribunal of the International Labour Organisation
was competent, under Article II of its Statute, to hear the complaints
introduced against the United Nations Educational, Scientific and Cultural
Organization on February 5th, 1955, by Messrs. Duberg and Leff and Mrs.
Wilcox, and on June 28th, 1955, by Mrs. Bernstein ;
With regard to Question II :
by nine votes to four,
that this question does not call for an answer by the Court ;
With regard to Question III : by ten votes to three,
that the validity of the decisions given by the Administrative Tribunal in
its Judgments Nos. 17, 18, 19 and 21 is no longer open to challenge. [p 102]
Done in French and English, the French test being authoritative, at the
Peace Palace, The Hague, this twenty-third day of October, one thousand nine
hundred and fifty-six, in two copies, one of which will be placed in the
Archives of the Court and the other transmitted to the Director-General of
the United Nations Educational, Scientific and Cultural Organization.
(Signed) Green H. Hackworth,
President.
(Siggzed) J. Lopez Olivan,
Registrar.
Judge Kojevnikov makes the following declaration :
Whilst voting in favour of the decision of the Court to comply with the
Request for an Advisory Opinion submitted by Unesco, and of the final part
of the Opinion itself with regard to Questions 1 and III, put by Unesco on
November 25th, 1955—although I do not agree with certain aspects and data
relating to the reasoning of that decision and of that Opinion—I am
nevertheless unable to concur in the view of the Court on Question II.
In my opinion, the Court, having recognized the competence of the
Administrative Tribunal, the validity and consequently the binding force of
the Judgments given by it, it ought also to have dealt with Question II and
given it an affirmative answer.
Indeed, the Administrative Tribunal had to decide whether the action of the
Director-General was dictated by the interests of Unesco and whether his
attitude corresponded to the provisions of the statute of that Organization.
Without a solution to those questions, the Administrative Tribunal was not
in a position to give a decision on the merits of the case and to find that
the dismissal of the officials concerned \vas due solely to their refusal to
appear before the Loyalty Board of the United States.
Accordingly, the Administrative Tribunal was competent to hear the
complaints introduced against Unesco by the officials [p 103] concerned and
the decisions given by the Administrative Tribunal in its Judgments Nos. 17,
18, 19 and 21 are perfectly well-founded, valid and binding upon Unesco and
effect must be given to them by the Organization.
Judges Winiarski, Klaestad and Sir Muhammad Zafrulla Khan, availing
themselves of the right conferred on them by Articles 57 and 68 of the
Statute, append to the Opinion of the Court statements of their separate
Opinions.
President Hackworth, Vice-President Badawi and Judges Read and Cordova,
availing themselves of the right conferred on them by Articles 57 and 68 of
the Statute, append to the Opinion of the Court statements of their
dissenting Opinions.
(Initialled) G. H. H.
(Initialled) J. L. O.
[p 104]
SEPARATE OPINION BY JUDGE WINIARSKI
[Translation]
The advisory function of the Permanent Court of International Justice,
introduced by Article 14 of the Covenant of the League of Nations, gave rise
to serious doubts and grave concern on the part of the Permanent Court at
the beginning of its activities, as it had on the part of jurists when the
Covenant was being drafted and later when the Statute of the Court was being
prepared in 1920. At the preliminary session of the Court in 1922 which was
devoted to drawing up the first Rules of Court, Judge J. B. Moore began his
important report on the subject in the following terms : "No subject
connected with the organisation of the Permanent Court of International
Justice has caused so much confusion and proved to be so baffling as the
question whether and under what conditions the Court shall undertake to give
'advisory' opinions."
The important problem which the Court had to resolve was to reconcile its
advisory function and its character as a Court of Justice, as an independent
judicial organ of international law. On the one hand there were the
Opinions, without binding force, which ought to impose themselves by virtue
of the great authority attaching to them ; otherwise, as Judge Moore pointed
out in his report, the prestige of the Court might be discredited. On the
other hand, Article 14 provided : "The Court may also give (in French :
donnera) an advisory opinion upon any dispute or question referred to it by
the Council or by the Assembly", which appeared to indicate that there was a
possibility of introducing the compulsory jurisdiction by the circuitous
means of advisory opinions : by giving an opinion on a legal question
relating to an existing dispute between States, the Court would in substance
be adjudicating on the dispute itself although the parties had not accepted
its jurisdiction for that purpose.
The Permanent Court met this twofold danger in two ways. First, it provided
the exercise of its advisory function with judicial forms and safeguards ;
secondly, it recognized that it might decline to give an opinion if there
were compelling reasons against its doing so, in accordance with the
conclusion reached in the Moore report to the effect that if an application
for an advisory opinion should be presented, "the Court should then deal
with the application according to what should be found to be the nature and
the merits of the case". In 1923, in the famous Opinion concerning the
Status of Eastern Carelia, the Court laid down the principles which led it
to decline to give the opinion requested by the Council; these principles
were summarized in the following well-known sentence : "The Court, being a
Court of Justice, cannot, even in giving [p 105]Advisory Opinions, depart
from the essential rules guiding it as a Court." (Opinion No. 5, p. 29.) In
1935, President Anzilotti, recalling the constant attitude of the Permanent
Court, added the following idea which has lost none of its force : "It is
... difficult to see how the Court's independence of the political organs of
the League of Nations could be safeguarded, if it were in the power of the
Assembly or the Council to oblige the Court to answer any question which
they might see fit to submit to it" (A/B 65, p. 61).
The attitude of the International Court of Justice does not differ from that
of the Permanent Court. In its Opinion of March 30th, 1950, after noting
that the Court's Opinion in principle should not be refused, the Court
stated : "There are certain limits, however, to the Court's duty to reply to
a Request for an Opinion. It is not merely an 'organ of the United Nations',
it is essentially the 'principal judicial organ' of the Organization (Art.
92 of the Charter and Art. I of the Statute)." And further on : "Article 65
of the Statute is permissive. It gives the Court the power to examine
whether the circumstances of the case are of such a character as should lead
it to decline to answer the Request" (pp. 71-72). On another occasion,
recalling the principles thus stated, the Court said : "The permissive
provision of Article 65 of the Statute recognizes that the Court has the
power to decide whether the circumstances of a particular case are such as
to lead the Court to decline to reply to the request for an Opinion"
(Reports 1951, p. 19). The Court has not considered that the circumstances
of the case now before it are such as to lead it to decline to give an
answer and it is on this point that I regret I am unable to agree with the
decision of the Court.
I pointed out above that from the beginning the Permanent Court provided the
exercise of its advisory function with judicial forms and safeguards. In
connexion with the first revision of the Rules (1926-1927) the Committee
appointed by the Permanent Court and composed of Judges Loder, Moore and
Anzilotti, made the following statement in its report: "The Court, in the
exercise of this power, deliberately and advisedly assimilated its advisory
procedure to its contentious procedure ; and the results have abundantly
justified its action. Such prestige as the Court to-day enjoys as a judicial
tribunal is largely due to the amount of its advisory business and the
judicial way in which it has dealt with such business. In reality, where
there are in fact contending parties, the difference between contentious
cases and advisory cases is only nominal." (Fourth Annual Report, 1927-1928,
p. 76.)
At the 1929 Conference for the revision of the Statute of the Permanent
Court, the following explanation was given with regard to Article 68 which
had been revised and was subsequently transmitted to the Assembly: "It would
be quite useless to give an advisory opinion after hearing only one side.
For the opinion to be useful, both parties must be heard. It was therefore
quite natural to lay [p 106] down in the Statute of the Court that, in
regard to advisory opinions, the Court should proceed in all respects in the
same way as in contentious cases."
The revised Statute of 1929 and the revised Rules of 1936 were the last
stages in the evolution which necessarily led to considerable assimilation
of the two procedures, an assimilation which was almost complete in so far
as "existing" disputes between two or more States were concerned.
The position of the International Court of Justice with regard to the
advisory function has remained practically the same, and although Article 65
of the Statute, in accordance with Article 96 of the Charter, has abandoned
the difference between "a question" and "a dispute" in favour of a reference
to "any legal question", Article 68 of the Statute has remained unchanged
and Article 82 (modified) of the Rules continues to provide : "... it [the
Court] shall above all consider whether the request for the advisory opinion
relates to a legal question actually pending between two or more States" in
order to be guided by the provisions of the Statute and Rules which apply in
contentious cases to the extent to which it recognizes them to be
applicable.
In conducting its advisory activity in this way, the Court respects the
principle of the independence of States by virtue of which disputes between
States may not be settled without their consent, even indirectly, by means
of an advisory opinion; the Court also respects two fundamental principles
of procedure from which, as a judicial body, it cannot depart : audiatur et
altera pars and the equality of the parties before a Court. The strict
observance of these principles and the constant will of the Court to be
fully enlightened in its study of the questions referred to it were to
invest the Opinions of the Court with the necessary authority.
The case now before the Court falls within neither of the two categories of
questions in respect of which the advisory function of the Court has been
provided : it is neither an abstract question nor a "question actually
pending between two or more States". The Court, whose duty it is to
ascertain the reality of the relations which are at the basis of the
question to be answered by it, has not failed to note that it is confronted
by the final stage in the proceedings between Unesco and its former
officiais. Having been regularly seised by an Organization duly authorized
to do so by the General Assembly, and having been seised of a legal question
arising within the field of the Organization's activities, the Court is
competent to give an answer to that question ; however, as is noted in the
Opinion, the procedure thus brought into being "appears as serving, in a
way, the object of a judicial appeal" against the four judgments of the
Administrative Tribunal, and this utilization of the advisory procedure was
certainly not contemplated by the draftsmen of the Charter and of the
Statute of the Court. [p 107]
Of course what is involved is not a regular appeal. Such appeals were
contemplated by the delegation of Venezuela at the San Francisco Conference
and would have necessitated an appropriate modification of Article 34 of the
Statute which was formulated by that delegation in the following terms : "As
a Court of Appeal, the Court will have jurisdiction to take cognizance over
such cases as are tried under original jurisdiction by international
administrative tribunals dependent upon the United Nations when the appeal
would be provided in the Statute of such tribunals." This proposal was
defeated. (Doc. 284, IV/1/24.)
It is conceivable that a question relating to the validity of a judgment of
the Administrative Tribunal should be referred to the Court in an isolated
manner, within the framework of its normal advisory activity and in
accordance with the rules and principles governing that activity; but even
in that case the problem would present grave difficulties. In the case now
before the Court the character of a final settlement by means of appeal
against the four judgments follows from the fact that the Request for an
Advisory Opinion has been made in accordance with Article XII of the Statute
of the Administrative Tribunal; the binding character of the Opinion does
not in itself affect the competence of the Court but constitutes further
proof that what is involved is an appeal in the form of a Request for an
Advisory Opinion.
As regards the procedure, Unesco, in approaching the Court, was guided by
the special provisions laid down by the Council of the League of Nations in
the case of the former officials of the Saar, which had moreover never been
applied ; it was also guided by the Resolution which was recently adopted by
the General Assembly with a view to amending the Statute of the
Administrative Tribunal of the United Nations. The Director-General, who was
"anxious to ensure the fullest possible equality of rights to those
concerned", stated that he was prepared to transmit their views to the Court
(statement by the Legal Adviser, read at the meeting of the Executive Board
held on November 25th, 1955, Doc. 42 Ex/SR/I-27). This procedure, to which
the Court did not object, has led to a situation in which one of the parties
to the proceedings before the Administrative Tribunal can only send its
observations to the Court through the intermediary of the other party.
As regards the oral proceedings, Unesco has expressed its intention of
refraining from presenting an oral statement for the same reasons. The
afore-mentioned statement by the Legal Adviser, however, added the following
words : "It should, furthermore, be noted that in order to fulfil its
purpose—which is to ensure the fullest possible equality of
rights—abstention from the presentation of oral statements must be total and
must apply not only to the organization concerned, but also to the other
international organi-[p 108]zations and to Member States." In this way,
since the officials concerned were unable to appear before the Court, the
States, Organizations and even the Court had to dispense with the oral
argument which is the rule in advisory proceedings.
The fact that this unusual procedure has not given rise to any objection on
the part of those concerned and that it has been consented to by counsel for
the officials is irrelevant. These officials had no place in the normal
advisory procedure. The important thing is that the oral proceedings, which
constitute the means by which the Court usually obtains clarification of the
issue before it, have been dispensed with beforehand.
Unesco alone may apply to the Court to challenge the judgments of the
Administrative Tribunal. It was legally impossible to confer the same right
on the officials. They won their case before the Tribunal; had they lost it,
no remedy would have been available to them. This inequality in itself may
not constitute a bar to the Court's giving an Opinion in this case ; it does
however add to the situation in which the Court finds itself, a situation
which is not compatible with its judicial character. Furthermore, any
attempt to reduce, if not eliminate, these inequalities between the
Organization and the individuals further emphasizes the contradictions
between this hybrid procedure and the Statute of the Court, for in the final
analysis this procedure runs counter to the fundamental provisions of
Article 34 to the effect that "Only States may be parties in cases before
the Court" and to the provisions of Articles 65 and 66 by virtue of which
only States and international organizations may participate in advisory
proceedings.
For these reasons, it is my view that the Court would follow a safer course
by refraining from complying with the Request for an Opinion. Since the
Court has decided otherwise, I concur in the answers given by the Court
although I do not agree with all the reasoning of the Opinion.
(Signed) Bohdan Viniarski.
[p 109]
SEPARATE OPINION OF JUDGE KLAESTAD
In my view, the Court should not have given the requested Opinion for the
following reasons :
1. This Request for an Advisory Opinion, which is presented under Article
XII of the Statute of the Administrative Tribunal of the International
Labour Organisation, relates to four judgments rendered by that Tribunal in
contentious cases brought before the Tribunal against Unesco by four of its
former officials. Unesco challenges the validity of the judgments, by means
of a Request for an Advisory Opinion, on the alleged ground that the
Tribunal lacked jurisdiction or has exceeded its jurisdiction.
The normal judicial method of challenging judgments rendered by the
Administrative Tribunal in contentious cases between an international
organization and individuals would be by means of a review in contentious
procedure. As, however, Article 34 of the Statute of this Court allows
neither international organizations nor individuals, but only States, to
appear before the Court as parties to contentious cases, the possibility of
such a review by this Court would be excluded. In such circumstances Article
XII of the Statute of the Administrative Tribunal of the International
Labour Organisation is intended to provide another means of submitting to
this Court the question of the validity of judgments rendered by that
Administrative Tribunal, namely, by way of a Request for an Advisory Opinion
on questions relating either to the jurisdiction of the Tribunal or to "a
fundamental fault in the procedure follou7ed".
The four cases to which the Questions put to the Court relate, and which by
their very nature were contentious cases before the Administrative Tribunal,
have thus, by the operation of Article XII of the Statute of that Tribunal,
been transformed into cases of an advisory character before this Court,
though with the modification of the usual advisory procedure that the
opinion given by the Court by virtue of Article XII, paragraph 2, shall be
binding. This transformation from a contentious procedure before the
Administrative Tribunal into an advisory procedure before this Court entails
procedural consequences of a serious nature.
It follows from the provisions of Article 66 of the Statute of the Court
that only States and international organizations have access to the Court in
advisory cases. Individuals have no right to participate in the proceedings
before the Court. In accordance with that Article, the Court may receive
written or oral statements only from States or international organizations.
Individuals have [p 110] not been accorded any right to submit written
statements to the Court or to appear or be represented at public sittings in
order to submit oral statements relating to the Questions put to the Court
for an Advisory Opinion. Though the four former officials of Unesco are
directly interested in the matter now before the Court and will be directly
affected by its Opinion, they have not, by the provisions of Article 66,
been given an opportunity to defend their interests. Nevertheless, Article
XII, paragraph 2, of the Statute of the Administrative Tribunal provides
that the opinion given by the Court shall be binding.
With a view to providing a remedy for this obviously unacceptable situation,
Unesco has suggested that the observations and information which the four
former officials may wish to lay before the Court should be transmitted to
the Organization which, without any check of their contents, thereafter will
send these observations and this information to the Court within the fixed
time-limits. This suggestion has been accepted and complied with by Counsel
for the four former officials. An expedient of this kind does not, however,
ensure the necessary equality of status, in fact and in law, between the
Organization on the one side and the individuals concerned on the other,
inasmuch as the individuals would have to be dependent on the Organization—
their opponent in the disputes before the Administrative Tribunal —for the
presentation of their views to the Court.
The question of oral hearings presents even more serious difficulties. As
Article 66 of the Statute does not allow individuals to appear or be
represented at oral hearings, the Court would, if it fixed such hearings,
have to envisage the possibility of Unesco appearing at the hearings and
defending its view in the absence of the four former officials or their
representative who are not entitled to participate. In order to prevent such
an eventuality and to ensure, as far as possible, the necessary equality
between the Organization and the individuals concerned, the Court was
compelled to dispense with oral hearings in the present advisory case,
though Article 66 presumes that oral hearings may be fixed by the Court, and
in spite of the fact that such hearings have hitherto been fixed in all
advisory cases which have been considered by this Court, as being a normal
and useful, if not an indispensable, part of its proceedings.
II. Article XII of the Statute of the Administrative Tribunal of the
International Labour Organisation, under which the Request is presented,
provides that in any case in which the Executive Board of an international
organization, which has made the declaration specified in Article II,
paragraph 5, challenges a decision of the Tribunal confirming its
jurisdiction, or considers that a decision is vitiated by a fundamental
fault in the procedure followed, the question of the validity of the
decision shall be [p 111] submitted by the Executive Board concerned, for an
Advisory Opinion, to this Court. Though the decisions of the Administrative
Tribunal are rendered in disputes between the international organization and
individuals, only the organization is 'accorded the right to challenge the
validity of the decisions in this manner. The other parties to the disputes,
the individuals, have no corresponding right to challenge the validity of
the decisions. The reason for this manifest inequality may partly be due to
the Statute of this Court, which does not entitle individuals to present a
request for an Advisory Opinion.
The provisions of Article XII have thus established a manifest inequality
between the parties to a dispute decided by the Administrative Tribunal. The
Article has introduced a review procedure which fails to observe fundamental
principles of equality of justice and impartiality of procedure. This lack
of equality and impartiality is aggravated by the fact that the right to
challenge the validity of a decision rendered by the Administrative
Tribunal, while granted to the international organization, is denied to the
weaker party.
III. In view of the abnormal judicial situation thus created by these
various procedural rules, it may be asked whether the Court ought to answer
the Questions put to it.
Article 65 of the Statute provides that the Court "may give" (in the French
text : "peut donner") an advisory opinion on an? legal question.
Accordingly, in its Advisory Opinion of 1950 concerning the Interpretation
of certain Pence Treaties (first phase), the Court stated :
"Article 65 of the Statute is permissive. It gives the Court the power to
examine whether the circumstances of the case are of such a character as
should lead it to decline to answer the Request."
In the advisory case concerning the Status of Easterln Carelia, the
Permanent Court of International Justice in 1923 actually declined to give
an Opinion. The Permanent Court had previously, in March 1922, discussed the
question whether it had the right to refuse to give a requested Advisory
Opinion. Judge Moore had presented a memorandum in which he expressed the
view that Article 14 of the Covenant of the League of Nations could not be
regarded as imposing on the Court an obligation to render Advisory Opinions
unconditionally and on request. The Court concurred in that view
(Publications of the Court, Series D, No. 2, pages 161 and 383-398).
At that time the rule relating to advisory opinions was inserted in the
Covenant of the League of Nations, Article 14. The English text provided :
"The Court may also give an advisory opinion upon any dispute or question
referred to it by the Council or by the Assembly." In the French text it was
said : "Elle [la Cour] [p 112] donnera aussi des avis consultatifs sur tout
différend ou tout point, dont la saisira le Conseil ou l'Assemblée." The
Statute of the International Court of Justice changed in Article 65 the word
"donnera" to "petit donner", thereby giving also in the French text a clear
expression of the permissive character of the provision.
The Court is therefore, in my view, entitled to decline to give a requested
Advisory Opinion when it finds that decisive reasons lead it to do so.
IV. Having regard to these various considerations, I am inclined to think
that the Court should not, by answering the Questions put to it, implicitly
give its sanction to a review procedure which places the parties to the
disputes to which the Questions relate on a footing of manifest inequality,
and which, contrary to the provisions of Article 66 of the Statute, creates
an obstacle to the Court's consideration at oral hearings of requests for an
Opinion. These considerations appear to be particularly relevant in the
present advisory case in view of Article XII, paragraph 2, of the Statute of
the Administrative Tribunal, which provides that the Opinion given by the
Court shall be binding, thus assimilating the present advisory case more
closely than usual to a contentious case.
To give an Advisory Opinion in the present case on the basis of this
defective review procedure would hardly be compatible with the judicial
duties of the Court. Being desirous to CO-operate, as far as possible, with
another organ of the United Nations in the discharge of international
duties, the Court has departed from its usual procedure by dispensing with
oral hearings and by receiving from the individuals concerned, who have no
access to the Court, written statements transmitted to the Court by the
Organization. Whatever may be thought of such a departure from a normal
judicial procedure, the Court cannot in any case disregard or compromise
with the fundamental principle of the equality of parties—equality in law as
well as in fact—a principle which is expressly confirmed by Article 35,
paragraph 2, of the Statute of the Court. Nor should the Court, by answering
the Questions put to it, appear to acquiesce in a review procedure which
fails to observe generally recognized principles by according only to one of
the parties to the judgments of the Administrative Tribunal the right to
challenge these judgments.
For these reasons, I consider that the Court should have availed itself of
its right under Article 65 of the Statute to refrain from giving the
requested Opinion.
On the other hand, I do not go so far as to Say that the Court lacks
jurisdiction to give an Advisory Opinion in the present case. Inasmuch as
the Opinion, in accordance with Article 96 of the Charter of the United
Nations and Article 65 of the Statute [p 113] of the Court, is requested by
a duly authorized organ of the United Nations on legal questions arising
within the scope of its activities, and since Questions 1 and III—but hardly
Questions II (a) and (b)—fa1l within the terms and scope of Article XII of
the Statute of the Administrative Tribunal of the International Labour
Organisation, the jurisdiction of the Court to give an Opinion appears to be
established. But in my view the Court should have refrained from exercising
its jurisdiction, as it did, for different reasons, in the Monetary Gold
Case. Since, however, the Court has decided otherwise, I have voted with
regard to the Questions put to it, accepting the Answers given in the
Operative Part of the Opinion.
(Signed) Helge Klaestad.
[p 114]
SEPARATE OPINION OF SIR MUHAMMAD ZAFRULLA KHAN
I am in general agreement with the reasoning of those of my colleagues who
hold the view that the Court should not deliver an Opinion in this case. I
desire, however, to set down briefly the principal consideration which in my
view should have prevented the Court from proceeding to deliver an Opinion.
The Court is a judicial body and in the exercise even of its advisory
jurisdiction it must fulfil the requirements of its judicial character.
The judicial character of the function which the Court is called upon to
perform requires, inter alia, that both sides directly affected by the
proceedings before the Court should occupy a position of equality in all
respects, including the submission of their views and their arguments to the
Court.
In the present case, under the Statute and the Rules of the Court, Unesco is
entitled to submit its views in writing ,and to make oral submissions to the
Court. The officials concerned are debarred from doing so.
This difficulty has been sought to be met by the adoption of a procedure
under which the observations of the officials were made available to the
Court through the intermediary of Unesco and by dispensing with oral
proceedings. Both these courses are open to serious objection and, in any
event, even their adoption did not put the parties in a position of complete
equality.
It is true that no objection was raised on behalf of the officials concerned
to the adoption of this procedure. This does not, however, absolve the Court
from its responsibility of ensuring that parties directly affected by the
result of the proceedings before the Court should be placed in a position of
complete equality. A procedure under which one of the parties vitally
concerned in the result of the proceedings can submit its views to the Court
only by favour of and through its opponent can scarcely be described as
judicial. In my opinion the Court should not countenance the adoption of
such a procedure.
By dispensing with oral proceedings the Court deprived itself of a means of
obtaining valuable assistance in the discharge of one of its judicial
functions. Oral proceedings were dispensed with not because the Court
considered that it could not receive any assistance through that means, but
because the inequality of the parties in respect of oral hearings could not
be remedied in any manner.
Even though the Court intimated that it had decided to dispense with oral
hearings, it was open to any of the States or international [p 115]
organizations entitled to appear before the Court, under paragraph 2 of
Article 66 of the Statute, to request the Court for an oral hearing. If such
a request had been received, the Court would have been confronted with a
dilemma. It would have found it difficult to refuse the request. To grant it
would have meant that the Court would thereby have disabled itself from
delivering an Opinion. The Court finds itself able to deliver an Opinion in
this case because no request for an oral hearing has been received. This
means that in cases like the present, a single State or international
organization to whom notice is sent under paragraph 2 of Article 66 can
exercise a veto upon the Court's authority to deliver an Opinion. In my
humble view, the Court should not comply with a request for an Advisory
Opinion in a case which necessitates its having recourse to such procedures
and devices.
(Signed) Zafrulla Khan.
[p 116]
DISSENTING OPINION OF PRESIDENT HACKWORTH
I concur in the conclusion of the Court that it is competent to give an
Advisory Opinion in response to the request from the United Nations
Educational, Scientific and Cultural Organization, and that it should do so.
I regret that I am unable to concur in the Opinion which has been given in
response to the questions presented by the Organization. On these questions
I am in agreement with the conclusions reached by the Vice-President, Judge
Badawi, and Judge Read. My reasons, in summary form, are as follows:
The request for an Opinion relates to judgments given by the Administrative
Tribunal of the International Labour Organisation against the United Nations
Educational, Scientific and Cultural Organization in favour of four of its
former officials—Messrs. Duberg and Leff and Mrs. Wilcox and Mrs.
Bernstein—who had been serving under fixed-term appointments which had
expired, and which the Director-General of the Organization had declined to
renew.
The request for ail Opinion is presented in the form of three questions :
The first of these questions is whether the Tribunal was competent, under
Article II of its Statute, to hear the complaints of these former officials.
The second question, which is divided into two parts, and which is to be
answered only in the event of an affirmative answer to the first question,
inquires (a) whether the Tribunal was competent to determine whether the
power of the Director-General not to renew fixed-term appointments had been
exercised for the good of the service and in the interest of the
Organization, and (b) whether the Tribunal was competent to pronounce on the
attitude which the Director-General, under the terms of the Constitution of
the Organization, ought to maintain in his relations with a Member State,
particularly as regards the execution of the policy of the Government
authorities of that Member State.
The third question inquires concerning the validity of the decisions given
by the Tribunal in its judgments in behalf of these four officials.
***
In considering the first of these questions, namely, that relating to the
competence of the Tribunal to hear the complaints, it is necessary to look
to the Statute of the Tribunal by which its jurisdiction is defined.
From Article II, paragraph 5, of the Statute, we find that the Tribunal is
competent to hear complaints in two classes of cases. One of these relates
to "non-observance, in substance or in form, of [p 117] the terms of
appointment of officials", and the other relates to the "non-observance of
provisions of the Staff Regulations".
The Tribunal is not clothed with plenary jurisdiction. Its jurisdiction is
wholly statutory and of a limited character. It is not authorized to hear
and to pass upon any and every kind of controversy that may arise in
connection with the administration of the Organization. On the contrary, its
competence, as just stated, is limited by paragraph 5 of Article II of its
Statute to the two categories of complaints there mentioned. Being a
Tribunal of specifically delegated and limited jurisdiction it follows that
it must keep within the orbit of that jurisdiction. Our first task,
therefore, is to determine whether the complaints here in question fall
within the compass of either of the two categories of complaints to which
the competence of the Tribunal extends.
It is not necessary here to consider the various forms of contracts in use
by Unesco for engaging members of its staff, such as those relating to
temporary appointments, indeterminate appointments, etc., all of which are
governed by special des. It is sufficient for Our purposes to examine only
those contracts under which the four officials here in question mere
serving. These contracts are described in the Staff Regulations of Unesco as
fixed-term contracts. Appointments under such contracts art. to run for a
definite period of time at the end of which period, unless renewed, they
automatically terminate.
This is very clearly stated by Staff Rule 104.6 (d) which reads :
"A fixed-term appointment shall expire, without notice or indemnity, upon
completion of the fixed term unless a renewal is offered and accepted three
months before the expiry date in the case of an initial fixed-term
appointment of one year, and six months before the expiry date in other
cases."
It will be noted that such fixed-term appointments expire, "without notice
or indemnity [FN1], upon completion of the fixed term unless a renewal is
offered and accepted six months (in these cases) before the expiry date. The
appointments of these four officials were not renewed. The gravamen of the
complaints is that they should have been renewed and that by reason of this
failure to renew the complainants became the victims of unwarranted
discrimination.
---------------------------------------------------------------------------------------------------------------------
[FN1]
These words were added to the old text, and that text as thus amended
entered into force November 1, 1954. The text as amended was quoted by the
Tribunal in its decision on competence.
---------------------------------------------------------------------------------------------------------------------
[p 118]The Staff Rules and Regulations are made an integral part of
contracts of employment. Staff Rule 104.3 provides that :
"(a) A candidate selected for appointment shall receive a Letter of
Appointment signed by the Director-General or his authorized representative,
specifying the terms of the appointment.
(b) There shall be annexed to the Letter of Appointment a copy of the Staff
Regulations and Staff Rules, and a copy of the Declaration of Office.
(c) III accepting an appointment, the candidate shall declare in writing
that he has taken cognizance of the Staff Regulations and Staff Rules and
that he accepts their conditions.
(d) The Letter of Appointment with its annexes and the Letter of Acceptance,
with the Declaration of Office, duly signed, shall constitute his contract
of employment."
Had the contracts of appointment in these cases been terminated by the
Director-General prior to the expiration of the period for which they were
to run, another Rule—Rule 104.6, paragraph (b) —concerning reasons for the
action taken, notice, and indemnity, would have been applicable, and there
might have been grounds for complaint by the employees of which the Tribunal
would have had jurisdiction. But we are not here concerned with a situation
of that character. Such questions could not arise in these cases. The
contracts of appointment were not terminated before their completion. They
ran their full term. They were not terminated by the Director-General. They
terminated automatically by virtue of their own terms and the applicable
Staff Rule, supra. All that the Director-General did was to notify the
officials, well in advance of the terminal dates, that on the expiration of
the fixed-term appointments he would not be able, for reasons stated by him,
to offer them further appointments. Requests by the complainants that the
Director-General should reconsider his decision mere denied.
***
Following certain preliminary measures which need not here be related, the
complainants filed petitions with the Administrative Tribunal. They did not
allege non-observance of the terms of their appointments. Taking the
complaint of Peter Duberg as an example (ail the complaints followed the
same general pattern), we find that the complainant, after a preliminary
recitation of facts and allegations, was content to request the Tribunal to
rescind the decision of the Director-General and to enjoin him to renew the
contract and to pay the petitioner the sum of one franc in respect of
damages and legal costs. [p 119]
In affirming its competence to hear the case, the Tribunal did not base its
2-ction on the "non-observance" of the terms of appointment. It impliedly
admitted that there was no subsisting contract of appointment for it ordered
the Director-General to rescind his decision not to offer a new.
appointment, and in the alternative to pay an indemnity.
Conclusions with respect to the second basis of jurisdiction under Article
II, paragraph 5, of the Statute, namely, “non-observance of provisions of
the Staff Regulations", are equally vague.
The Tribunal did not say that a complaint of this character was before it.
What it said was that the question before it was "a dispute concerning the
interpretation and application of the Staff Regulations and Rules of the
defendant Organization".
It is not clear whether this somewhat imprecise statement as to the nature
of the dispute was regarded by the Tribunal as tantamount to a complaint
alleging "non-observance of provisions of the Staff Regulations". It is not
difficult to imagine that many situations might arise in an Organization
such as Unesco in which divergent views would develop regarding the
interpretation and application of Regulations and Rules. But it does not
follow that such differences may form the basis of a complaint falling
within the competence of the Administrative Tribunal.
In order to engage the competence of the Tribunal it must be shown not only
that there is a dispute but that the rights of the complainant have been
impinged through non-observance of the Regulations or Rules.
Now what rights of the complainant were violated by action of the
Director-General in this case ?
We find that the so-called dispute, as it developed, revolved around two
documents : One was an Administrative Memorandum dated July 6, 1954, from
the head of the Bureau of Personnel and Management, acting under the
direction of the Director-General, concerning the renewal of appointments of
staff officials expiring at the end of 1954 and in early 1955. The other was
a letter from the Director-General to Mr. Duberg stating that he would not
offer him a further appointment.
The Administrative Memorandum mentioned referred to Staff Regulation 4.5.1
providing that renewals of fixed-term contracts should be, "(a) without
limit of time, or (b) in the light of programme requirements, for further
fixed periods of not less than one year up to a maximum period of service of
five years, at the discretion of the Director-General".
The memorandum reveals that the principles to be applied to the renewal or
non-renewal of fixed-term appointments due to expire [p 120] during the then
current year and in the first few months of the succeeding year had been a
subject of discussion within the Organization ; that views had been
expressed by the Advisory Council on Personnel Policies, by the Directors of
Departments, and by the Staff Council. The Director-General thought that
there was general agreement on personnel policy but he was troubled
regarding the interpretation to be given to the phrase, "in the light of
programme requirements". He said that the General Conference in approving
Regulation 4.5.1 had given no interpretation of it and that various
interpretations had been proposed. He decided that the matter was of such
importance that he must consult the General Conference at its forthcoming
eighth session on the concept of "programme requirements". He added that
pending action by the Conference "all professional staff members whose
contracts expire between now and 30 June 1955 (inclusive) and who have
achieved the required standards of efficiency, competence and integrity and
whose services are needed, will be offered one-year renewals of their
appointments". All such appointments, he said, would be reviewed bj7 him
before April 30, 1955, in the light of the decisions and instructions of the
General Conference.
This Memorandum was no more than the announcement of an interim measure with
respect to personnel. It obviously was designed to allay the apprehensions
of those members of the Staff whose appointments were due to expire within a
short time, and to bridge a gap with which the Director-General felt that he
was confronted in giving effect to a regulation which he considered required
clarification by the General Conference.
At the time the Memorandum was issued the period within which the fixed-term
contracts in three of the cases here in question might have been renewed
under Staff Rule 104.6 (d), supra, had already expired.
The statement in the Memorandum that one-year renewals would be offered was
a qualified one. It was subject to the required standards of efficiency,
competence, integrity, and the needs of the service. It did not constitute
an offer of renewals. It merely announced a purpose to extend offers. Such
offers were to be left to the future and were not to be extended ipso facto
and in any and all events. They depended upon the satisfying by the employee
of the four considerations mentioned in the Memorandum. There was no change
in the procedure required by the Staff Rules and Regulations for [p 121]
entering into new contracts of employment, namely, an offer and acceptance.
Nor could the statement be deemed to constitute a new Staff Rule. It was
nothing more than an ex parte statement of policy of a temporary character
which the Director-General intended to pursue pending further enlightment on
the course which he should follow. But even if it be denominated a new Rule,
the legal situation would not be changed. It was yet a qualified statement.
It may well have created in the minds of members of the staff, as stated by
the Tribunal, a legitimate expectancy that they would be continued in the
service, but there was no resulting vested right. Expectations and rights
are not synonymous terms. The statement placed the Director-General under no
legal obligation vis-à-vis members of the staff to offer new appointments,
nor did it give the officials a legal right to demand such appointments.
When, therefore, the Director-General informed the four officials by letters
that it was "with a deep sense of my responsibilities that I have come to
the conclusion that I cannot accept your conduct as being consistent with
the high standards of integrity which are required of those employed by the
Organization", lie was acting within the compass of the Administrative
Memorandum and of his prerogatives, as the Chief Administrative Officer of
the Organization. Both the Constitution and the Regulations of Unesco
feature throughout the importance of a high degree of integrity in the
selection and maintenance of the staff. The Director-General was charged
with the duty of effectuating this purpose. In declining to renew the
appointments, lie was exercising a discretionary power given him by the
Constitution and by the Staff Regulations. It was for him to determine
whether the action of the individuals was incompatible with the high
standards required of them, and it was for him to determine whether their
actions were capable of harming the interests of the Organization.
In the absence of evidence that the Director-General had acted in bad faith,
i.e. that his action was arbitrary or capricious, it was not for the
Tribunal to Say that the reasons assigned by him were not justified. It was
not for the Tribunal to substitute its judgment in this administrative field
for that of the Director-General. He, acting under the authority of the
Executive Board and of the General Conference, and not the Tribunal, was
charged with responsibility. There was no obligation to renew the
appointments. He could have allowed the contracts to lapse without assigning
reasons or he could have told these officials that their [p 122] terms of
employment would not be renewed without stating reasons. He stated reasons
because he was asked to do so. The fact that he did state them did not
invest the officials with a right which they previously did not have. By the
same token his statement of reasons did not invest the Tribunal with
jurisdiction which it previously lacked. That jurisdiction, as already
stated, was confined to two classes of cases, i.e. (1) non-observance of
terms of appointment and (2) non-observance of provisions of the Staff
Regulations.
The terms of appointment were not interfered with by the Director-General.
They expired automatically, hence jurisdiction could not attach on the first
named ground.
The Regulations did not require renewal of the appointments and the
Director-General violated no regulation in declining to offer new
appointments. In consequence jurisdiction did not arise on the second
ground. The fact that appointments of other officials holding fixed-term
contracts were renewed, and that under the general practice of Unesco
renewals were ordinarily to be expected by worthy officials, did not alter
the legal situation—there \vas no resulting legal right to renewals.
***
My conclusion is that the first question presented by Unesco on which the
opinion of the Court is requested—"Was the Tribunal competent, under Article
II of its Statute, to hear the complaints..."—must be answered in the
negative.
Having thus answered the first question it becomes unnecessary to consider
the second question.
The third question presented by the Organization relates to the validity of
the decisions given by the Tribunal in its judgments awarding damages to
each of the four officials.
It must be obvious that judgments given by a Tribunal which is without
jurisdiction over the subject-matter call have no validity.
(Signed) Green H. Hackworth
[p 123]
DISSENTING OPINION OF VICE-PRESIDENT BADAWI
[Translation]
I regret that I am unable to concur in the Opinion of the Court upholding
the jurisdiction of the Administrative Tribunal of the International Labour
Organisation in the four cases concerning Unesco. I agree with the
conclusions reached by President Hackworth and Judge Read for the following
reasons :
The Request for Advisory Opinion submitted to the Court consists of three
questions.
The first question is expressed in terms of jurisdiction, and the third in
terms of validity. Both these questions use the wording of Article XII of
the Tribunal's Statute. Both represent the same order of ideas considered
from different angles ; from the angle of cause and the angle of effect. The
link between the two questions is therefore indissoluble. The two questions
in fact constitute but one.
Question II is put in the event of the reply to Question 1 being in the
affirmative. It would therefore be premature to examine it before answering
Question 1, for the purpose of giving an answer to it or of stating that it
does not arise.
***
The Administrative Tribunal of the International Labour Organisation has
held that it had jurisdiction to hear the complaints of four Unesco
officials. In order to examine these four judgments which, apart from the
particular facts of each case, are identical, it will suffice to take
Judgment So. 17 in the Duberg case as an example.
It is obvious that to enable the Executive Board of Unesco to challenge the
decision of the Administrative Tribunal confirming its jurisdiction and to
request the advisory opinion provided for in Article XII of the Statute of
the Tribunal, the grounds on which the Tribunal bases its jurisdiction must,
independently of the merits, be in themselves sufficient to establish the
precise legal basis of its jurisdiction. It would indeed be inconceivable
that the Tribunal should be able to declare itself competent on the basis of
reasons not subject to legal evaluation.
However, it is sometimes the case that jurisdiction can only be established
by reasons which arc bound up with the merits. In such a case, a court
orders the joinder of the objection to the jurisdiction and of the merits
and deals with them together, giving its decision first on the issue of
jurisdiction and then on [p123] the merits. Such joinder facilitates a
better ordering of the judgment and is conducive to greater clarity. It also
makes possible the avoidance of repetitions which are inevitable in the
statement of the reasoning of the decision if the issue of jurisdiction and
the merits are separately dealt with.
A joinder of objection and merits, however, would only be possible if the
tribunal dealing with the case has no superior court above it or, if it is a
court of first instance, if its judgments are subject to appeal, that is to
say if the whole judgment is subject to review. In the latter case, its
decision, both as regards jurisdiction and merits, will be subject to review
by the higher court.
But in the case of Article XII of the Statute of the Administrative
Tribunal, the Tribunal's decision is subject to examination by the Court
only with regard to the question of jurisdiction; the Court has no power of
review with regard to the merits, the Tribunal's judgments, so far as they
are concerned, being final and without appeal.
In order, however, to exercise its power of control over the jurisdiction of
the Tribunal, the Court must necessarily base its Opinion on the Tribunal's
interpretation and application of the provisions of its Statute.
Where an objection to the jurisdiction is joined to the merits, the Court
will seek this interpretation and application in the reasoning as a whole.
But where the tribunal deals with the two questions, that of jurisdiction
and that relating to the merits, separately, the Court will confine its
examination to the reasoning on which the tribunal has based its finding
that it has jurisdiction.
If, however, the tribunal, while not ordering the joinder of the objection
and of the merits, fails to observe the necessary distinction between the
two questions and is satisfied with a mere division, in two sections in
which the reasons are mingled, the Court is bound, if the section relating
to jurisdiction does not contain adequate reasoning, to seek further in the
other section. Although mixed up with the examination of the merits, the
legal reasoning supplementing that specifically referable to jurisdiction
itself properly pertains to the issue of jurisdiction and is, therefore,
subject to review by the Court.
In the present case, no joinder was ordered by the Tribunal, but the
Tribunal, while not deciding on that course, has in fact mixed up the
grounds relating to the two questions, jurisdiction and merits. That part of
the Judgment devoted to jurisdiction contains—apart from certain
observations which are not relevant and a mere reference to the Memorandum
of July 6th, 1954—nothing but a recital of the complaint, followed by an
assertion of the competence of the Tribunal. The part of the Judgment which
deals with the merits gives a clearer indication of the Tribunal's ideas
with regard to jurisdiction.[p 125]
This method of operation on the part of the Administrative Tribunal is
clearly revealed by an examination of the two succeeding parts of the
Judgment.
But before undertaking this examination, it is desirable to establish the
border line between jurisdiction and merits. The distinction between the two
is fundamental for the exercise b\7 the Court of its pou7er of review.
In order to determine the jurisdiction of the tribunal, it is unnecessary
for the claimant to prove his right (that pertains to the merits), but it is
essential to define the basis of his action in order to ascertain whether it
falls within the sphere of activity of the tribunal or, in other words,
whether the tribunal is or is not competent to hear it.
But, according to the words of Article II, paragraph 5, of the Statute of
the Administrative Tribunal of the International Labour Organisation, the
Tribunal is competent to hear complaints alleging non-observance, in
substance or in form, of the terms of appointment of officials and of
provisions of the Staff Regulations (of Unesco).
The expression "in substance or in form" (soit quant au fond, soit quant à
la forme) does not here refer to the underlying meaning of the terms and
provisions, as opposed to their liberal meaning. Such a contrast, indeed,
would be odd in a legislative text. It is merely a reference to the
well-known concept of "substantive rules" as contrasted with "adjectival or
procedural rules" (règles de fond, règles de forme ou de procédure). This
coupling of the two categories of rules is designed to put them on a footing
of equality, in the sense that non-observance of either will give rise to
judicial proceedings and that it is the duty of the Tribunal to safeguard
and protect officials against their non-observance.
According to paragraph 6 (a) and (b) of the same article, which lays down to
whom the Tribunal shall be open, an official alleges non-observance of the
terms of appointment or of the Staff Regulations for the purpose of
asserting a right.
It is therefore necessary for the official to state the right which he is
claiming and to invoke the term non-observance of which has given rise to
that right, to enable the Tribunal to find that it has jurisdiction after it
has checked each of these, without, however, going into the facts relied
upon to prove the case (the merits), from the point of view of their
correctness, truth or reality, and without forming a judgment on the
interpretation or application put forward by the official.
This does not constitute an excessive requirement, but the complaint and the
Tribunal's decision must, clearly, indicate the nature of the right claimed
by the official and state the terms and provisions the interpretation or
application of which might serve as a basis for that right and the probable,
or possible, weight of these. [p 126]
The right claimed by the four officials is undoubtedly the renewal of their
contracts. But what is the term or provision entitling them to that right
which has not been observed by the Director-General ?
It has been thought that the word "alleging", which is used iii Article II
of the Statute of the Tribunal, is not the same as the expression "based on"
and that it has a wider and more flexible meaning. If the purpose of this
observation is to show that it is unnecessary for the complainant to prove
that the right which he claims is well-founded, the distinction is quite
correct, and no one would disagree that the question of jurisdiction is
clearly different from that of the merits.
But if this distinction between the words has as its purpose to enable the
complainant—who has to allege—to refer generally to the terms of appointment
and the Staff Regulations, without indicating the precise terms and
provisions the non-observance of which has given rise to his complaint, such
an interpretation would fail to take into account certain necessities
inherent in the drafting of legislative texts which commonly use the plural
to include the singular.
For the purposes of greater precisions, it was thought possible to interpret
the provision relating to the "allegation of non-observance ... of the terms
of appointment ... and of provisions in the Staff Regulations" as meaning
that it was enough that there should be a legal relationship (without
indicating either its name or its nature) between renewal and the original
contract, between non-renewal and the legal position of the complainant at
the time when renewal was refused, for the Tribunal to have jurisdiction.
No doubt renewal is something different from an original appointment. In
this connexion it is sufficient to observe that a fixed-term appointment may
be transformed after five years into an indeterminate appointment, and that
a fixed-term appointment not so transformed may not be renewed beyond a
maximum period of five years.
This difference itself makes it possible to Say that renewal is different in
character from original appointment, but this difference does not make it
possible—quite obviously and in spite of all the possible resources of legal
dialectic—to give the official any title or right to renewal on the expiry
of each fixed-term appointment. Every renewal amounts to a new appointment,
without prejudice to the fact that a number of renewals would permit of the
transformation of a fixed-term appointment into an indeterminate appointment
if the Director-General, in his entire discretion, should wish to retain the
services of the official.
This is an argument similar in character to the statement that a fixed-term
appointment does not cease, on its expiry, to produce legal effects. Apart
from the fact that it begs the question, which [p 127] is precisely that of
ascertaining, in spite of the terms of Rule 104.6 (d), the extent of these
legal effects and their source, this argument fails to reveal any definite
concept of a right, although what has to be alleged is a right in the true
sense of the word.
In fact, there is no real difference between the words "alleging" and "based
on". In each case, a precise term or provision ought to be cited, together
with an indication of the right which it is claimed would enure from its
non-observance and of the "substantial and not merely artificial connexion"
between that right and the provision invoked.
How, moreover, is it possible for the Court to check the existence or
non-existence of a legal relationship or of legal effects which have not
been relied upon by the complainants or found to exist by the Tribunal as a
basis for its jurisdiction? In any event, it is certain that if this
interpretation should be accepted the result would be that there would be
practically no case in which the Tribunal lacked jurisdiction, and review by
the Court, provided for in Article XII, would in fact be impossible or
useless.
***
Let us now consider the reasons given in the Judgment on competence, which
are the subject of seven paragraphs.
The first paragraph draws a distinction between probationary and fixed-term
appointments. The Tribunal perhaps wished to indicate that the former may be
terminated at any moment ad nutum, whereas this is not the case of the
latter. Apart from the fact that there is no such thing as a probationary
appointment as an autonomous contract, but merely a probationary period in
the first year of a fixed-term contract, this reason is irrelevant and
constitutes a mere assertion by implication.
The second paragraph quotes Unesco Staff Rule 104.6 (d), which provides
that:
"A fixed-term appointment shall expire, without notice or indemnity, upon
completion of the fixed term unless a renewal is offered and accepted three
months before the expiry date in the case of an initial fixed-term
appointment of one year, and six months before the expiry date in other
cases" [FN1]
------------------------------------------------------------------------------------------------------------
[FN1] The text in force at the time when the Director-General took his
decision reads as follows :
"A fixed-term appointment shall expire upon completion of the fixed term
unless a new appointment is offered and accepted three months before the
expiry date, if the staff member has served for less than one year or sis
months before the expiry date, if he has served for more than one year."
------------------------------------------------------------------------------------------------------------
and states that this text only deals with the duration of the appointment
and in no way bars the Tribunal from being seised of a complaint requesting
the examination of the validity of the positive or negative decision taken
regarding the renewal of the appointment. [p 128]
To begin with, it is incorrect that the provision deals only with the
duration of the appointment, since it determines the legal situation as
between Unesco and the officials. Again, a complaint requesting the
examination of the validity of a positive decision regarding renewal is
inconceivable. The Tribunal is in fact only open to officials and those
claiming through them, and it is difficult to see how an official could
attack the validity of a decision to renew his contract, since there can be
no renewal in the absence of an acceptance by him.
The Tribunal, nevertheless, States that Rule 104.6 (d) in no way bars it
(notwithstanding its categorical terms) from considering the validity of a
decision of non-renewal.
Unesco has been at pains to explain that non-renewal does not constitute a
decision, and it has relied for this purpose on the terms of Staff Rule
104.6 (d) and on the nature of the legal relationship between Unesco and the
official. But without pausing to dwell on an examination of this aspect of
the question, it is to be observed that at the end of June 1954 it could be
known that Duberg's contract, which was due to expire on December 31st,
1954, would not be renewed because no offer of renewal had been made to him
by that date, the offer being one which had to be made six months before the
expiry of his contract. Providentially, there was the Administrative
Memorandum of July 6th, which was followed, on August 13th, by a letter from
the Director-General to Duberg informing him that his contract would not be
renewed. There is therefore no difficulty in admitting that there was a
decision not to renew.
In fact, the Tribunal's declaration that Rule 104.6 (d) was not a bar to its
adjudication on the validity of a decision not to renew showed that it was
preparing to Say that, in spite of that provision, there existed, within
certain limits, either a right of the official to renewal, or an obligation
upon the Director-General in this respect.
The following paragraph appears to lend substance to this idea. That
paragraph cites the Administrative Memorandum of July 6th, 1954, which is
referred to as "a general measure" (une mesure d'ensemble) and in the next
paragraph as "a general measure" (une mesure générale) to which the
complainant was made an exception.
In the fourth paragraph, the Tribunal summarizes Duberg's complaint in these
words: "The Director-General could not legitimately thus make an exception
of him on the sole ground which he invoked against him as justification for
the view that he did not possess the quality of integrity recognized in
those of his colleagues whose contracts had been renewed, and in the absence
of any contestation of his qualities of competence and efficiency." [p 129]
(In his complaint the complainant maintained that "he had—in circumstances
clearly determined by the Administration—an acquired right to the renewal of
his contract and that this assurance was more than a mere hope". He relied
on the Administrative Memorandum of July 6th, 1954, and dealt at length with
the facts relating to his career and with the concept of integrity, the
reason invoked by the Director-General for not renewing his contract.)
The following paragraphs of the Judgment (relating to jurisdiction) add
nothing to the reasoning already given: paragraph 5 states the submissions
of the complainant; paragraph 6 says that the question is thus a dispute
concerning the interpretation and application of the Staff Regulations and
Rules of Unesco, and paragraph 7 states that, by virtue of Article II,
paragraph I,[FN1] the Tribunal is competent to hear it.
---------------------------------------------------------------------------------------------------------------------
[FN1]
The Tribunal's reference is incorrect, since this paragraph relates to the
International Labour Organisation, whereas it is paragraph 5 which applies
to Unesco.
---------------------------------------------------------------------------------------------------------------------
Apart from the reference to the Memorandum of July 6th, 1954, these seven
paragraphs, which constitute the whole of the reasoning on the question of
jurisdiction, fail completely to state the basis of that jurisdiction.
The one and only ground on which the Tribunal founds its jurisdiction
therefore appears to be the Memorandum of July 6th.
By placing the emphasis on the Memorandum of July 6th, in its reasoning on
the question of jurisdiction, and by its description of it as a "general
measure", the Tribunal seems to be adding it to the sources of the
officials' rights (contract and Staff Regulations and Rules). Did this
Memorandum really constitute a new source of such rights, to the extent to
which it modified the Staff Regulations and Rules?
A lively controversy has been engendered as to the scope of the Memorandum.
In the view of some, it was merely a declaration of policy, an obviously
expedient statement which did not and could not alter the character of
relationships created by the contracts and the Staff Regulations and Rules.
The Director-General found himself in a dilemma:
he either had to transform fixed-term contracts into indeterminate
appointments without regard to programme requirements, or else not to renew
such contracts.
Since he had to seek directives from the Conference, which was to meet in
November 1954, the Director-General proposed, pending a settlement of the
question on a solid foundation involving the establishment of a permanent
cadre, to grant a general one-year renewal in the circumstances which he
indicated. This announcement in no way implied that the normal rules would
not be observed, namely, the necessity for an offer and an acceptance, or
that he had abandoned his rights, since surrender of a right cannot be
presumed.[p 130]
For those holding this .view, it is difficult to understand how declaration
made after the date prescribed for an offer of renewal— as in the case of
the four complainants—can give rise to new rights. In their view, Rule 104.6
(d), even in its revised form, consequently remains in force and should be
applied. Failing an offer and an acceptance, the appointment expired on
December 31st, 1954, without notice or indemnity. According to this
interpretation, there v7as no right to renewal and, in the absence of
non-observance of any term or provision, the Tribunal was incompetent to
hear the complaint.
This obviously was not the opinion of the Tribunal, which regarded the
Memorandum as having the character of a general measure or of a regulation
provisionally modifying the régime then in force and which considered that
the officials were entitled to the benefit thereof.
The Tribunal, however, was unable to hold that the Memorandum gave right to
a renewal of the appointment or to an obligation on the part of the
Director-General to renew it, as claimed by the applicant in his complaint.
The Tribunal contented itself with stating that "an official who combines
all the necessary qualities has a legitimate expectancy (espoir légitime) of
being offered a new appointment in the position which lie occupied".
But does the disappointment of a legitimate expectancy or hope constitute
non-observance of the terms of appointment or of the provisions of the Staff
Regulations? So to hold would be to attribute to legitimate expectancies a
legal substance not warranted by any legal principle.
However that may be, is it necessary for the Court to choose between these
two conflicting views—a "declaration of policy" on the one hand, which would
involve a finding that the Tribunal lacked jurisdiction on the ground that
it had incorrectly defined the legal position, or "a general measure" on the
other hand, which would involve a finding that the Tribunal had
jurisdiction?
Such a choice would not in fact resolve the problem of jurisdiction, for,
even regarded as a general measure, the Memorandum could not by itself serve
as a basis for the Tribunal's Judgment confirming its jurisdiction.
The Memorandum indeed did not envisage an offer of renewal to all
professional staff members in an absolute manner. The offer was made subject
to conditions covering the need for their services and the achievement of
the required standards which necessarily were to be determined by the
Director-General.
In these circumstances, there could not be any non-observance of the terms
of appointment or of the provisions of the Staff Regulations if non-renewal
\vas based on the absence of any need for the services of the official or on
the failure to achieve the required standards, and in such a case there
could be neither [p 131] any right nor any legitimate expectancy or hope on
the part of the official that his contract would be renewed.
The Memorandum, which made renewal subject to these conditions of need for
the services and of achievement of the required standards, cannot justify an
assumption of jurisdiction in proceedings based upon some right of an
official, providing it be granted that judgment of the satisfaction of the
conditions is within the discretion of the Director-General.
But the Tribunal does not appear to admit this so far as the condition of
integrity is concerned. It appears not to have had any difficulty about
admitting it so far as the other conditions are concerned.[FN1] The whole
section devoted to an examination of the merits deals only with the
discretionary power of the Director-General and at the outset the Tribunal
states that "if the Director-General is granted authority not to renew a
fixed-term appointment and so to do without notice or indemnity, this is
clearly subject to the implied condition that this authority must be
exercised only for the good of the service and in the interest-of the
Organization.".
---------------------------------------------------------------------------------------------------------------------
[FN1]
This distinction was not, however, justified by the Tribunal, in spite of
the fact that in an international political organization such as Unesco the
concept of integrity should have, apart from its etymological meaning, a
relative and wider meaning.
---------------------------------------------------------------------------------------------------------------------
The Tribunal, postulating that the exercise of this power, subject to the
implicit conditions which it has indicated, should be subjected to its
judicial control, proceeds to an examination of the facts and to a
definition of the condition of integrity, and it concludes "that the
decision not to renew the appointment is one which should not only be
rescinded in the present case, but also constitutes a wrongful exercise of
powers and an abuse of rights which consequently involves the obligation to
make good the prejudice resulting therefrom".[FN2]
---------------------------------------------------------------------------------------------------------------------
[FN2] The wording here used implies the existence of two grounds, but a
careful reading of the Judgment reveals no ground other than that of détournement de pouvoir which is the natural conclusion following from the
implied conditions postulated and gone into at length by the Tribunal.
---------------------------------------------------------------------------------------------------------------------
***
Since the Court must review all the grounds on which the jurisdiction of the
Tribunal is founded, and since it must seek them wherever they may be found,
the Court must stress this ground as being the principal ground on which the
Tribunal relied in declaring that it had jurisdiction and in dealing with
the merits. In the portion of the Judgment devoted to the question of
jurisdiction, the Tribunal stated that "the question is a dispute concerning
the interpretation and application of the Staff Regulations and Rules of
Unesco", but it did not indicate the provision involved, apparently leaving
this to the examination of the merits. [p I32]
The reference in this part of the Judgment to the Memorandum of July 6th was
merely paving the way for these implied conditions inasmuch as the
Memorandum constitutes the document to which reference must be made and
which contains the conditions to which the Director-General made his general
offer of one-year renewals subject. The Tribunal did not rely on the
Memorandum in any other way, nor did it draw any other conclusion from it.
***
It will, however, be observed at the outset that the Tribunal did not seek
to base its Judgment on any right enjoyed by the official himself, by virtue
of his contract or of the Staff Regulations, but -on conditions relating to
the Director-General's right or to his discretionary power which, if not
satisfied, would give rise to a wrongful act (détournement de pouvoir)
involving a right of the official to be compensated (by money or otherwise).
It may next be observed that these "implied conditions" have nothing to do
with good faith, which is the basis of any contract and, accordingly, an
implied condition inherent in its performance. In fact, the Tribunal's
analysis of the good of the service ,and the interest of the Organization
reveals an appreciation by the Tribunal of these criteria which differs from
that of the Director-General but which does not go so far as to question his
good faith.
Finally, it may be observed that "implied conditions" cannot be regarded as
provisions non-observance of which would constitute a basis for the
jurisdiction of the Tribunal. Such provisions clearly cannot be anything but
express and positive provisions. That this is so appears clearly from the
use in the article of the words "in substance or in form".
But if these implied conditions do not constitute the terms and provisions
referred to in Article II of the Statute of the Tribunal, is it possible
that they might constitute the interpretation or application of such terms
and provisions? Interpretation is undoubtedly of the essence of the
administration of justice, but judicial interpretation presupposes the
existence of a text to be interpreted. Moreover, interpretation is subject
to certain rules which are susceptible of control.
What is the term or provision which the Tribunal, in the cases submitted to
it for judgment, has interpreted or applied and what are the rules which it
followed ?
The Tribunal proclaims the existence of implied conditions by way of a mere
assertion, and it fails to explain the paradox of a discretionary power
subject to judicial control. The conclusion reached by the Tribunal that
non-renewal constitutes a détournement de pouvoir, shows that it regarded
itself as having jurisdiction to deal with a détournement de pouvoir. But
such a power cannot be presumed to be inherent in administrative justice.
Though the [p 133] French Conseil d'État may have exercised it after a
lengthy evolution and as a result of a series of decisions which may be
described as praetorian, the administrative tribunals established in various
countries only exercise it by virtue of express provisions.
So far as the French Conseil d'Etat is concerned, the concept of
détournement de pouvoir is a theory of historical growth due to the rôle
which the Conseil has played in French life, to its structure, to its
functions and, above all, to the successive extensions of its competence due
to its power to build up a veritable case law.[FN1] Even in France, resort to
the theory is in general less frequent.
---------------------------------------------------------------------------------------------------------------------
[FN1]
Cf. an article by President Josse, in the Livre jubilaire du Conseil d'État
pour commémorer son I50me anniversaire, 1949. See also an article by
Professor Pierre Lampué, published in the Revue internationale des Sciences
administratives, 1954. p. 383.
---------------------------------------------------------------------------------------------------------------------
A writer, Professor Jean de Soto, in an article entitled "Recours pour excès
de pouvoir et interventionnisme économique" , published in the Collection
"Conseil d'Etat, Etudes et Documents", 1952, NO. 6, pages 77-78, seeks to
explain this fact:
"... What is the explanation for this disaffection with regard to
détournement de pouvoiv ? Perhaps a certain disillusionment, for a form of
control of this sort may seem deceptive... Above all, no doubt,
administrative tribunals have thought that by themselves precisely
determining the special purpose which professional and economic authorities
should have in mind in forming their decisions in respect of their every
act, they were adjudicating upon matters outside their ken and that their
official assertions with regard to the ultimate purpose might endanger their
prestige in the eyes of the public ; it should be added that it was not
always easy to ascertain this ultimate purpose and that the necessary
experience was often lacking for the forming of any sure opinion."
However that may be, when, as a result of the development of the French
institution of the Conseil d'Etat, certain countries desired to establish
Councils on the French model, they deemed it necessary to crystallize the
case law which had been developed by the Conseil d'Etat over a century and a
half, by conferring on their new Councils a jurisdiction which was at once
wide and well-defined, in order to avoid the incoherence and uncertainty
involved in the building up of a case law, the direction of which was in any
event unsure, and in order to avoid any resistance on the part of the
Administration or any conflicts with it.
By way of examples of such texts, which are to be found in many countries in
Europe, I shall content myself with citing Article 22 of the Greek Law of
December 22nd, 1928; Articles n and 23 of the Turkish Law of December 26th,
1938; Article 9 of the Belgian Law of December 23rd, 1946; Article 33 of the
Treaty establishing the European Coal and Steel Community of April 18th,
1951 (cf. Article 3 of the Egyptian Law No. 9 of, 1949, amending Law No. 112
of 1946 which brought the Conseil d'Etat into being). (See Annex.)[p 134]
These provisions which recognize the doctrine of détournenzent de pouvoir
entrust the necessary judicial control to the Conseil d’Etat or to the Court
of the Community.
If these various laws have considered it necessary to make express provision
for détournement de pouvoir as an element of jurisdiction and not as a
substantive rule, that is because such a ground of appeal cannot be regarded
as automatic and because it is not a necessary consequence of the general
power of annulment conferred on Conseils d'Etat. This form of appeal in fact
relates to the exercise of the discretionary power of the Administration,
and it involves, independently of judicial control over the interpretation
and application of legislative provisions and regulations, a searching
enquiry into the purpose of such provisions and into the way in which that
purpose has been circumvented or disregarded, as well as an enquiry into the
reason for the misuse of the power.
There are indeed two possibilities: either in the absence of a provision
conferring special competence in respect of détournement or abus de pouvoir,
these Conseils d'Etat may exercise such a special competence by virtue of
their general power of annulment for breach of the law, in which case it may
be asked why, in framing the Statutes establishing the Conseils, it was
considered necessary to make provision for such special competence, or such
provision was necessary and without it the Conseils could not exercise the
power in question. It is the second of these alternatives which clearly must
be accepted.
The seriousness of such interference in administrative matters and of the
substitution of the views of courts for those of responsible administrators
clearly militates against the presumption that such a power can be deemed to
be included within the normal concept of the interpretation and application
of laws and regulations. Accordingly, apart from the case of the French
Conseil d'Etat, which in the course of the development of its case law over
a period of more than 150 years has elaborated so many theories which
constitute the foundations of that unwritten law, administrative law, an
express provision has always been considered necessary.
But the jurisdiction of the administrative tribunals of international
organizations is in no way comparable to that of the various national
judicial systems which include a body of the Conseil d'Etat type. No one
will dispute that the jurisdiction of the Tribunal, as defined by Article II
of its Statute, is a limited jurisdiction and that it is restricted to
questions of non-observance of terms of appointment and of the Staff
Regulations. It is this very restriction which provides the raison d'être
for the procedure for requesting an advisory opinion of the Court, which is
provided for by Article XII of the Statute of the Tribunal.[p 135]
***
Might it nevertheless be considered that since it is not a tribunal deciding
as between States, in which case a restrictive interpretation will be
necessary as a result of the principle of the sovereignty of States, the
jurisdiction of the Tribunal of the International Labour Organisation should
be liberally interpreted on the basis of the Charter and of the modern
tendencies to provide certain guarantees for the status of officials, or
that it should be interpreted in such a way as to provide security for the
international civil service ?
It is clear that the constitution of the Tribunal, even with its limited
competence (compétence d'attribution) reflects these tendencies. It would
then be necessary to determine at what point such a liberal interpretation
should cease in order not to bring about a change in the character of the
Tribunal, altering it from a tribunal with a limited competence to one
having full administrative jurisdiction including powers of annulment in
cases of détournement de pouvoir, Such a liberal or extensive interpretation
would not thus lead to any precise conclusion.
Such a liberal or extensive interpretation is the less acceptable in the
present case in that the jurisdiction of the Administrative Tribunal of the
International Labour Organisation, so far as the staff of Unesco are
concerned, is the result of an agreement between the latter Organization and
the International Labour Organisation under which the former is entitled to
rely on the precise limits to the jurisdiction as defined in Article II,
paragraph 5, of the Tribunal's Statute.
Moreover, it is difficult to conceive that, in the case of a tribunal
starting out without any traditions and whose only function is to ensure
respect for the contracts and the status of a civil service in the process
of formation, it can have been the intention to grant it powers as wide as
those which may be involved by the concept of détournement de pouvoir in
relation to administrative heads (the Secretary-General or
Director-General), subject to the hierarchical control of higher bodies (in
this case, the Executive Board and the General Conference of Unesco) and
acting on the instructions or with the agreement of those bodies.
It is true that in the days of the League of Nations M. Albert Thomas
suggested the establishment of an administrative tribunal on the model of
the French Conseil d'État. But after this suggestion, and before its
implementation, the question passed through a number of committees which did
not proceed on the basis of this idea. It is not therefore possible to place
reliance on administrative decisions or on the administrative law of the
various countries in an effort to attribute to the administrative tribunals
of international organizations the same powers as are enjoyed by national
legal systems. [p 136]
The fact that the Tribunal was called an administrative tribunal does not
automatically confer upon it the powers of Conseils d'Etat in various
countries. The Tribunal is "administrative" because it has no powers beyond
those which relate to the administration and the officials. By reason of
this intrinsic character, it is nothing more than a judicial organ with
limited powers which it must exercise in the same way as any other judicial
tribunal, that is to Say, it must interpret and apply the terms of
appointment of officials and the provisions of the Staff Regulations. The
Tribunal itself said so in the sixth paragraph of the section of the
Judgment devoted to competence.
An entirely different matter is the judicial control of the discretionary
exercise of the powers of the Administration; this is a quite special matter
which can only appertain to a type of court which bears the same
relationship to the Administration as do the Conseils d'Etat in the various
countries which have adopted that institution.
In fact, the duality of their functions as an advisory body and as a court
having jurisdiction to annul decisions, in the words of MM. Puget and
Maleville, in a study on the "Revision des décisions administratives sur
recours des administrés", undertaken by the Institut international des
Sciences administratives for the United Nations (1953), "effects a
conciliation which is perhaps illogical but certainly felicitous between the
contradictory necessities of keeping the administrative judge apart from the
power to decide issues in the continual activity and operation of
departments and of allowing him to plunge constantly into the realities of
administrative tasks... This duality ensures that he is at all times in
close contact with living realities, and it is favourable to flexibility and
progress. It is to the benefit both of those who administer and those who
are administered."
There is not only this duality of the functions of the Conseil d’Etat as a
basis for the extension of its competence and of its control penetrating to
the acts of the Administration, but as a basis for this extension and
control there is also the duality of a judicial jurisdiction and an
administrative jurisdiction: the former limited to the interpretation and
application of existing texts, the latter developing administrative law, to
a great extent unwritten law, particularly from the point of view of its
general principles.
The case of the Administrative Tribunal of the International Labour
Organisation is, however, something quite different from a Conseil d'État.
It is an exclusively judicial tribunal, although administrative in name.
There is not here, therefore, any duality of function or of jurisdiction.
The difference between the Tribunal and a Conseil d'État is fundamental, and
it cannot be otherwise both as regards the atmosphere in which the Tribunal
exercises its jurisdiction and as [p 137] regards the complex conditions of
the functioning of international organizations.
As justification for the extraordinary powers which international
administrative tnbunals claim to possess, one of the defenders of the
system, Professor Georges Langrod, speaking of the Administrative Tribunal
of the United Nations, said: "The Administrative Tribunal, that newborn
judicial body, with limited jurisdiction and without direct traditions on
the inter-governmental plane, should not only impose its authority in the
face of repeated attempts to cast doubt on the character of res judicata of
its judgments, that is, undertake a mission of a 'pedagogical' order, but it
should go farther—in view of the meagreness, so far as substance is
concerned, and of the endless fluctuation, so far as the form of the
internal Zaw of the United Nations is concerned—and bring about, almost ab
nihilo, a real body of case law, as did the Roman praetor." (Rivista di
Diritto Internazionade, 1954, p. 245.) The author of these words fails to
indicate the legal provisions or the authority which would justify such an
extended and praetorian power of administrative tribunals. This conception
of the powers of administrative tribunals is obviously without any
foundation. The present state of international administrative law provides
no sanction or
authority therefor.
***
Other arguments have been invoked in order to justify the competence of the
Administrative Tribunal of the International Labour Organisation to exercise
a judicial control over the discretionary powers of the Director-General,
such as the statistics of fixed-term appointments, the special features of
such appointments, the general (but by no means absolute) practice that they
are renewed,[FN1] the necessity of ensuring stability and security within the
international civil service. These are extra-legal, I might even Say
political, considerations. International organizations have an undoubted
interest in settling these questions by general measures and have more
effective means of dealing with them than administrative tribunals, dealing
with individual cases, can possibly have.
---------------------------------------------------------------------------------------------------------------------
[FN1]
There was no examination by the Court nor discussion before the
Administrative Tribunal of the precise scope of this practice or of the
facts relevant thereto, namely, the part played in the formation of the
practice by the examination in each individual case of the need for the
services of the official and his having achieved the necessary standards (of
efficiency, competence and integrity). In any event, while it is always
desirable in interpreting texts not to have regard only to the letter of the
provision but to bear in mind the spirit of the texts, this so-called
practice cannot be assimilated to the spirit of the provisions of the Staff
Regulations.
---------------------------------------------------------------------------------------------------------------------
***
In support of the jurisdiction of the Administrative Tribunal of the
International Labour Organisation, decisions of other administrative
tribunals have been cited, in particular: [p 138]
1. Howrani v. Secretary-General of the United Nations, Judgment No.
4—September 14th, 1951.
2. Robinson v. Secretary-General of the United Nations, Judgment No.
15—April 11th, 1952.
3. Kergall v. European Coal and Steel Community—July 18th, 1955.
Without examining these judgments in detail, it may be pointed out that none
of these judgments adopted the doctrine of détournement de pouvoir as openly
as the four judgments now in question.
Moreover, neither the Statutes of these Tribunals nor the Staff Regulations
of these Organizations are identical with the Statute of the Administrative
Tribunal of the International Labour Organisation and the Staff Regulations
of Unesco.
Furthermore, the instrument establishing the European Coal and Steel
Community expressly confers on the Court of the Community the power of
annulment on the ground of détournement de pouvoir in certain cases (Art.
33) (see Annex).
Finally, it is difficult to see how the decisions of tribunals of the same
standing as the Administrative Tribunal, whose judgments are subject to
review by the Court, decisions never sanctioned by this Court, can serve as
authorities justifying the present judgments.
***
It is necessary to remember in connexion with these arguments and similar
arguments referred to at the beginning of the present Opinion that they were
not relied on by the Administrative Tribunal itself, which placed itself on
an altogether different ground, that not of a right of the official but of a
wrongful act relating to the exercise of the Director-General's
power—détournement de pouvoir.
***
Since the task of the Court is to give an Opinion on the challenge raised
against a concrete decision of the Tribunal confirming its competence, the
Opinion should naturally relate to the grounds on which the Tribunal held
that it had jurisdiction. In general, the Court's rôle should not be to
examine the Tribunal's jurisdiction and to adjudicate upon it proprio motu.
This limitation is necessary particularly in a case where the Tribunal
adopted an element of jurisdiction such as détournement de pouvoir, which
has not been conferred upon it, in the guise of a ground for its finding on
the merits. [p 139]
The Tribunal's judgment on the merits has thus been influenced by this
arbitrary arrogation of jurisdiction. The result is an inextricable
confusion between jurisdiction and merits.
The Court has several times stated that it is not called upon to give an
Opinion on the merits of the case the judgments of which have been submitted
to it, but it has at the same time sought bases for the jurisdiction of the
Tribunal other than those relied upon by the Tribunal itself.
In upholding the jurisdiction of the Tribunal, however, on different
grounds, the Opinion of the Court cannot fail to clothe the Tribunal's
judgment on the merits with an authority in no way intended by the Court.
In fact, even if the Tribunal had founded its jurisdiction on the practice
with regard to fixed-term appointments, on the special position which that
practice occupies in international organizations, on the Memorandum of July
6th, I954, it could not, without the assistance of détournement de pouvoir,
have done otherwise than dismiss the complaints of the officials. Neither
the practice, the legal relationship between renewal and the original
contract or the legal effects which a fixed-term appointment continues to
produce after its expiry, nor an examination of the terms of appointment or
of the Staff Regulations or of the Rules or of the Memorandum of July 6th,
would have provided the Tribunal with a basis for a right resulting from
non-observance of the terms of appointment or of the provisions of the Staff
Regulations.
The Tribunal seems to have examined all these possibilities itself. But all
it could deduce was "that an official who combines all the necessary
qualities has a legitimate expectancy (espoir légitime) of being offered a
new appointment in the position which he occupied".
A détournement de pouvoir alone—a special competence which it did not
possess—was able to provide the Tribunal with the bases for its Judgment.
***
In the conditions in which international organizations operate, mistakes are
possible. But these mistakes, however serious they may be, cannot justify an
extension of the jurisdiction of international administrative tribunals
which is contrary to their Statutes, to the conditions in which they operate
and to the conditions in which international organizations operate.
The formative period through which international administration is at
present passing will in due course come to an end. It is then that it will
be possible and practicable to adopt rules which are applicable to national
administrative courts. Among such rules, that relating to detournement de
pouvoir might become a part of the law of the future. That it will is the
hope expressed by Professor F. Chiesa, in a report to the Ninth
International Congress of Admin-[p 140] istrative Sciences, 1953, which is
published in the Revue internationale des Sciences administratives, 1954, n°
1, page 67:
"Moreover, all administrative tribunals should be given a general
jurisdiction to control the validity of all administrative measures taken by
the United Nations and other international Organizations in order to
eliminate from the field of law all measures vitiated by lack of competence,
abus de pouvoir or breach of the regulations or rules, as well as a
jurisdiction of appraisal, a jurisdiction on the merits, to enable the
tribunals to proceed to a consideration of the substance of the case and the
law involved."
Summary of the article in English given in the Revue
"In the present situation, it is not yet justifiable to think of an Summary
of administrative jurisdiction, on an international level, in terms of its
the article definition as it is given in national legal texts. Most of the
international administrative jurisdictions now in existence are confined in
their competence to litigations pertaining to international officialdom,
whereas it should be permissible to refer to a judge the question of whether
or no an organ of an international organisation has exceeded its powers or
has misused its competence within its powers."
But until then it is to the international legislator and not to the
administrative tribunal that the right or the duty pertains to choose the
public law doctrine (détournement de pouvoir) or the private law doctrine
(abus de droit) which the Administrative Tribunal saw fit to include
together in one of the recitals of its Judgment.
***
For all these reasons, I am of opinion, so far as Question 1 is concerned,
that the Administrative Tribunal of the International Labour Organisation
was not competent, because the essential basis on which it held itself
competent is what it called the "implied conditions" of the
Director-General's power, a postulate designed to enable it to deal with
acts reserved for his discretion, in order to submit them to judicial review
and to rescind these discretionary administrative acts on the ground of a
détournement de pouvoir. Such a competence was not conferred upon it by
Article II of its Statute.
Question II does not arise.
The reply to Question III is that the Judgment, based on a foundation which
does not exist, are nullities.
(Signed) Badawi.
[p 141]
Annex
Greece
Law of December 22nd, 1928.
Article 22.
………………………………………………………………………………………………………
"The full Council shall sit :
(a) when considering applications for rescission of administrative measures
on the ground of exńós de pouvoir, or for breach of a law."
Turkey
Law of December 26th, 1938.
Article II.
"The functions of the Conseil d'État include :
…………………………………………………………………………………………………….
(d) dealing with and deciding applications and appeals in contentious
administrative matters."
Article 23.
"The Sections du contentieux shall finally and definitively consider the
following matters :
A. Proceedings brought by those claiming to have suffered injury as a result
of acts and decisions of an administrative character relating to questions
outside the jurisdiction of judicial tribunals ;
………………………………………………………………………………………………………
C. Proceedings for annulment brought by those claiming to have suffered
injury as a result of acts and decisions of an administrative character
alleged to be in conflict with the provisions of laws and regulations, so
far as their purpose and their substance are concerned, and from the point
of view of procedure and jurisdiction;"
Belgium
Law of December 23rd, 1946.
Chapter II.— Judgments.
"9. The Administrative Section shall adjudicate by means of judgments on
claims for annulment on the ground of a defect of procedure which is of a
substantial character or where the sanction for departure therefrom is
annulment, on the ground of excès or détournement de pouvoir, alleged
against the acts or regulations of the various administrative authorities or
against contentious administrative decisions."
Egypt
Law of 1946 on the Conseil d'État, as amended in 1949.
Article 3.
"The Contentious Administrative Court is alone competent to adjudicate upon
the following questions and possesses unlimited jurisdiction over these
questions.
………………………………………………………………………………………………
6. Appeals lodged by private persons or corporate bodies for the rescission
of final administrative decisions.
The appeals referred to under 3, 4, 5, 6 must be based on lack of
jurisdiction, on a formal defect or on a breach or erroneous application or
interpretation of laws or regulations, or on a détournement de pouvoir." [p
142]
Treaty establishing the European Coal and Steel Community, of April 18th,
1951
Article 33.
"The Court shall have jurisdiction over appeals by a member State or by the
Council for the annulment of decisions and recommendations of the High
Authority on the grounds of lack of legal competence, major violations of
procedure, violation of the Treaty or of any rule of law relating to its
application, or abuse of power. However, the Court may not review the High
Authority's evaluation of the situation, based on economic facts and
circumstances, which led to such decisions or recommendations, except where
the High Authority is alleged to have abused its powers or to have clearly
misinterpreted the provisions of the Treaty or of a rule of law relating to
its application.
The enterprises, or the associations referred to in Article 48, shall have
the right of appeal on the same grounds against individual decisions and
recommendations affecting them, or against general decisions and
recommendations which they deem to involve an abuse of power affecting them.
The appeals provided for in the first two paragraphs of the present article
must be lodged within one month from the date of notification of
publication, as the case may be, of the decision or recommendation."
[p 143] DISSENTING OPINION OF JUDGE READ
I regret that I am unable to concur in the answers given by the majority of
my colleagues to the Questions submitted in the Request. In general I agree
with the position taken by President Hackworth and Vice-President Badawi,
but there are certain aspects of the matter, which, in my opinion, deserve
special consideration.
My difficulties in concurring in the Opinion are fourfold. The'-concern: the
nature and significance of the notion of competence or jurisdiction; and the
problems of interpretation arising under Article XII, paragraph 1, of the
Statute of the Administrative Tribunal, the clauses in the Judgments which
purport to confirm its jurisdiction, and Question 1.
My first difficulty relates to competence or jurisdiction. This notion is
the principle that a Tribunal must keep within the limits imposed by law, or
by the instrument under which it operates. It applies at all stages of
proceedings: commencement; pleadings; oral proceedings; and, above all, at
the crucial stage, delivery of judgment.
Lack of competence may be raised by preliminary objection, or during the
examination of the merits. In preliminary proceedings, the tribunal may
simply reject the objection to the jurisdiction, or it may decide, at that
stage, that it is competent: but either finding is interlocutory. In any
event, if, in the course of the examination of the merits, it is established
by a party, or the tribunal finds of its own motion, that it is incompetent
to adjudicate, it cannot proceed to judgment. This does not mean that the
problems of competence and merits are the same. They are separate in
principle, although there may be issues of fact and law that are common to
both. What it does mean is that it is the duty of every tribunal— when the
relationship of the parties, the essential character of the cause of action,
and other matters relevant to jurisdiction have been established—to satisfy
itself that it is competent to deliver the judgment and thus to complete the
hearing of the case.
This confirmation of jurisdiction is a finding by the tribunal that, in
adjudicating, it is acting within the scope of its authority to adjudicate,
prescribed by law and by the statute under which it operates. It has nothing
to do with the question whether the decision is right or wrong: that is
merits. It is concerned solely with the duty of the tribunal to respect and
maintain the limits imposed on its authority; the rightness or wrongness of
the decision being irrelevant considerations.
My second difficulty relates to the interpretation of Article XII of the
Statute, which provides that:
"In any case in which the Executive Board ... challenges a decision of the
Tribunal confirming its jurisdiction, ... the question of the validity of
the decision given by the Tribunal shall be submitted by the Executive Board
concerned, for an advisory opinion, to the International Court of Justice."
I am disregarding the provision relating to procedural fault, which was
eliminated from the case by Unesco.
Four expressions present problems of interpretation: "challenges"; "decision
of the Tribunal confirming its jurisdiction"; "the question of the validity
of the decision"; and "shall be submitted". The first three are directly
involved in this case.
There are two ways of construing a text. It can be given its ordinary and
natural meaning; or, when that does not make sense, it can be given a
meaning which, while not doing violence to the words used, is in conformity
with the context and the general tenor of the document, and which will give
effect to the general intentions of its authors, as indicated by its terms
and by attendant circumstances. I shall refer to the first as literal, and
to the second way of construing the text as liberal interpretation.
The expression "challenges a decision", if literally construed, would
connote the fact of challenge and not its substantial quality. Unesco,
acting under Article XII, did challenge the whole Judgment, in terms broad
enough to constitute a challenge to the decision confirming jurisdiction.
Literally construing the word "challenges", it would follow that the
Executive Board was empowered to submit the validity of the decision to this
Court, regardless of whether or not it could substantiate the challenge. But
it has been universally accepted that Unesco can only require the Court to
rule on validity if the challenge proves to be well-founded. All unite in
applying a liberal interpretation.
Similarly, liberal interpretation has been given to the last two expressions
referred to above. Strictly, "the question of the validity of the decision"
would cover all aspects of validity, but it is universally accepted that it
must, in order to give effect to the general intention of the authors, be
restricted to those aspects of validity or invalidity which result from the
competence or incompetence of the Tribunal. Literally, "shall be submitted"
is imperative; but it is recognized that the Executive Board is under no
compulsion but exercises its political judgment in deciding whether or not
to submit the question to the Court. [p 145]
The second expression—"decision of the Tribunal confirming its
jurisdiction—gives more difficulty. It is impossible, on the basis of
literal construction, to confine the words to decisions that the Tribunals
were competent to entertain the complaints, and to listen to the witnesses
and counsel, i.e. to exercise the less important aspects of jurisdiction,
because the authors did not choose to use the words "confirming the
preliminary and relatively unimportant elements of jurisdiction, but
ignoring the crucial element, the delivery of judgment". But 1 do not feel
justified in giving a liberal interpretation to the first three expressions
with which 1 have dealt, and at the same time imposing a literal
construction on the expression now under consideration. Accordingly, 1 shall
examine the nature and historical background of the Article and its relation
to other parts of the Statute.
A precedent was established in 1946 when the Assembly of the League of
Nations refused to give effect to certain judgments of the Administrative
Tribunal, on grounds of nullity. Some of the officials were from the
International Labour Organisation and when the Organisation was taking over
the League Tribunal and Statute, it became necessary to cope with the
problem presented by the precedent. This was a serious matter, because it
imported into the relation between official and organization an arbitrary
element, and destroyed security of tenure. It was, however, impossible to
reverse the precedent, because many members were not prepared to accept a
position in which a judgment of the Tribunal which was nul1 and void would
be binding on the Organisation. A compromise was reached and embodied in
Article XII.
Prior to the adoption of Article XII, the officials were at the mercy of the
Organisation, because there was no legal sanction against possible action in
treating a judgment as a nullity. Under Article XII, provided that it is
liberally construed, the Organisation can only treat a judgment as invalid
if it has been found to be so by this Court.
For ten years, the provisions of Article XII have stood out as the only
safeguard giving effective protection to officials from arbitrary action by
the Organizations. Restrictive construction of the expression under
consideration, confining the effect of this safeguard to cases in which
there can be found a decision of the Tribunal limited to the preliminary and
relative unimportant elements of jurisdiction, would narrow the scope of the
safeguard, and enlarge the field in which officials were at the mercy of the
Organizations. I am compelled to give a broad and liberal interpretation to
a remedial measure, designed to ensure justice and to prevent arbitrary
action.
Apart from the historical background, which so strongly indicates the need
for broad and liberal construction, the context suggests the same need, with
equal force. Here I shall mention only one [p 146] point: Article VIII. The
scope of the judgment to be given by the Tribunal was rigidly confined. It
was given competence to "order the rescinding of the decision impugned or
the performance of the obligation relied upon". In the event that these
courses proved to be impossible or inadvisable, competence was given to
"award compensation for the injury caused...". The language was imperative,
and it is clear beyond argument that the authors of the Statute intended to
confine the Tribunal to these forms of redress. There was no way in which an
Organization could know that the Tribunal was delivering a judgment which,
in the matter of redress, was beyond its competence, until after the
judgment had been delivered. That would be too late for argument, too late
for anything but the procedure under Article XII.
Restrictive construction would thus render nugatory the limitations imposed
by Article VIII and it is therefore unacceptable to me.
It thus appears that a literal examination of the words "decision of the
Tribunal confirming its jurisdiction", a survey of the historical
background, and the context, all unite in compelling me to adopt a broad and
liberal construction. I am convinced that the authors of the Statute had in
mind all elements of jurisdiction and that they did not intend to exclude
the crucial element, the delivery of judgment.
My third difficulty in concurring in the Opinion relates to the
interpretation of the clauses in the Judgments of the Tribunal which deal
with jurisdiction.
The first is the seventh clause appearing under the heading "on competence",
which reads:
"that by virtue of Article II, paragraph 1, of its Statute, the Tribunal is
competent to hear the said dispute ;"
The reference to paragraph (1) is an obvious clerical error. It must be
treated as referring to paragraph (5), but this is of no importance as the
link with Article II of the Statute was abandoned in the dispositive. To
avoid confusion I shall refer to this clause as the tentative finding on
competence.
The second clause, to which I shall refer as the decision confirming
jurisdiction, is in the dispositive. Together with the preceding and
following clauses, it reads :
“ON THE GROUNDS AS AFOPESAID
THE TRIBUNAL,
Rejecting any wider or contrary conclusions,
Declares the complaint to be receivable as to form ;
Declares that it is competent ;
Orders the decision taken to be rescinded and declares in law[p 147]
that it constitutes an abuse of rights causing prejudice to the complainant;
In consequence, should the defendant not reconsider the decision taken and
renew the complainant's appointment, orders the said defendant to pay to the
complainant the sum of $15,500, together with interest at 4 per centum from
1 January 1955 ;
Orders the defendant Organisation to pay to the complainant the sum of $300
by way of participation in the costs of her defence ; ..."
(I have italicized the decision confirming jurisdiction.)
There can be no doubt as to the meaning. This clause was an integral and
operative part of the dispositive. Read with the following clause, it was an
unequivocal decision by the Tribunal confirming its jurisdiction to render
judgment based, not on the provisions of Article II, paragraph 5, but on
abuse of rights, a very different matter.
The use of the present tense, "is competent", places the construction beyond
doubt. The words cannot possibly be construed as meaning: "Declares that it
was competent". The tentative finding on competence was part of the
expositive, and it must give way to the decisive clause which appears in the
dispositive. The decision by which the Tribunal actually confirmed its
decision, the decision which was challenged by Unesco, and the decision
which must be taken into account in answering the questions in the Request,
is the actual decision which is contained in the dispositive and not the
tentative finding on competence.
My fourth difficulty relates to the interpretation of Question 1 of the
Request. In putting the question of jurisdiction to the Court, Unesco used
the expression "Was the Administrative Tribunal competent ... to hear the
complaints...". The words used suggest that Unesco wanted the Court's
Opinion as to the Tribunal's competence to hear the complaints in the widest
sense. The expression "to hear the complaints", if given the ordinary and
natural meaning of the words used, would extend to both the reception and
the disposition of the complaints. But the French text, which is the
original, is, perhaps, less free from doubt in this regard.
Accordingly, it becomes necessary to consider the attendant circumstances,
and to ressort to liberal interpretation. In this way the true position
emerges.
In the first place, the Question should be considered in relation to the
scope of Article XII, under which it was put to the Court; and also in
relation to the scope of the clauses in the Judgments confirming competence.
Both the former and the latter extended [p 148] to both the reception and
the disposition of complaints. It would not be unreasonable to interpret the
question as extending to the whole field of competence, as included within
the Judgments and the Article.
In the second place, Unesco has throughout made it clear that it was
intended to raise the question of jurisdiction in the widest sense. This was
done in paragraph 93 of the Written Statement, and reasserted in the letter
from the Legal Adviser to the Registrar of the Court, dated June 20th of
this year.
In the Written Statements, not only Unesco but also the Governments have
discussed the issues on the assumption that the issue of competence, in the
widest sense, was raised by the Questions. The only doubt arises from some
remarks by Unesco, both in paragraph 93 of the Written Statement and in the
letter of June 20th. It was there suggested that the issue of competence in
one aspect (competence to entertain the complaints) was being raised by
Question 1, and that competence in its other aspect (competence to dispose
of the complaints) was covered by Question II.
To me the question whether the issue of competence to deliver judgments on
matters over which jurisdiction had not been conferred by the Statute should
be regarded as arising under Question 1 or II is a matter of slight
importance. The important thing is that the issue has arisen, and must be
dealt with.
In my opinion, the proper course to be followed would be to revise the
Questions by striking out Question II, and by giving to Question 1 a liberal
interpretation, so as to cover both the reception and the disposition of the
complaints. That is the course which the Permanent Court, and also this
Court, invariably followed, when there was possible discrepancy between the
Questions as framed and the actual legal questions as developed by the
Written and Oral Proceedings.
***
Examination of these four matters has led me to the following conclusions:
1st. That Article XII contemplates a decision by the Tribunal confirming its
jurisdiction in its entirety.
2nd. That the clauses in the Judgments confirming competence must be
construed as confirmation based on the actual position as established in the
proceedings, and as confirming the competence of the Tribunal to deliver the
Judgments of which they are parts.
3rd. That Question 1 of the Request should be construed as raising the issue
of competence of the Tribunal to deliver the judgment. [p 149]
Accordingly, I am unable to confine my examination of the case to the seven
clauses which come under the heading "on competence", but find it necessary
to look at the whole judgment. In so doing, I shall not consider whether the
Tribunal was right or wrong in any conclusions which it reached concerning
the merits. I shall not consider whether there was or was not, in fact or
law, non-observance of the terms of appointment or of provisions of the
Staff Regulations; or whether there was or was not, in fact or in law, an
abuse of rights. I shall confine myself to the single question : did the
Tribunal keep within the limits of its competence, as prescribed by the law
and by the Statute? I shall begin with the limitations on the competence of
the Tribunal, and then examine the course actually followed in delivering
the Judgments and end with my own opinion as to the answers that should be
given to the questions.
As regards limitation, I shall begin with two which were imposed by the
Statute.
By Article II, paragraph 5, the competence of the Tribunal was restricted to
hearing "complaints alleging non-observance, in substance or in form, of the
terms of appointment of officials and of provisions of the Staff
Regulations...".
There are three possible constructions to be placed on these words. The
first, based on literal interpretation, is that the Tribunal is competent to
entertain a complaint, provided that there has been an allegation of
non-observance of the terms and provisions, and notwithstanding that there
is no substantial basis for the allegation.
If this construction is accepted, the inevitable conclusion is that the
Tribunal was without jurisdiction; because the complainants made no such
allegation. They did not allege non-observance of the terms of appointment,
or of provisions of the regulations. They put their cases on an entirely
different basis, which was described by the Tribunal in the following words:
"Having had referred to it a complaint submitted against the United Nations
Educational, Scientific and Cultural Organisation of 5 February 1955 by Mr.
Peter Duberg, an official of that Organisation, asking that the Tribunal be
pleased to rescind the decision taken by the Director-General on 13 August
1954 and to enjoin the Director-General to renew the contract of the
complainant and to pay him the sum of one franc in respect of damages and
legal costs ;".
There is nothing there about non-observance.
However, I am unable to accept this literal construction, for the same
reasons that led to the universal rejection of a similar construction of
"challenges", in Article XII.[p 150]
The second possible construction is neither literal nor liberal. It is that,
to sustain jurisdiction, the complainant must make out a prima facie case,
but need not prove that the case is, in reality, based on non-observance
within the meaning of Article II, paragraph 5. That course has its proper
place when an objection is taken to the jurisdiction in preliminary
proceedings. But then, the decision of the Tribunal is interlocutory, and
subject to reversal, as regards competence when, in dealing with the merits,
the Tribunal finds that the actual cause of action is not based on
"non-observance".
I am unable to accept this construction. There is nothing in the words used
to justify its adoption. I do not think that the authors of the Statute
intended that the Tribunal should be competent to entertain a complaint,
based on a prima facie case of "non-observance" ; and that, after that prima
facie case had been disproved or abandoned, it would be competent to proceed
to deal with different causes of action which they had attempted to exclude
from the jurisdiction of the Tribunal by the terms of Article II, paragraph
5. I am of the opinion that it must be established that the cause of action
is based on "non-observance" before the Tribunal can be regarded as
competent to render judgment. It is noteworthy that there is not even a
tentative finding of "non-observance" in the expositive and that it was
abandoned in the dispositive.
The second limitation was imposed by Article VIII; and I do not need to
repeat what I have said with regard to it. The Tribunal's competence in
regard to the contents of its judgment was subject to the most stringent
limitation. It could not award damages, punitive or otherwise, it could not
impose fines or imprisonment or order equitable reparation; it could only
grant the redress for which Article VIII made express provision: rescission,
specific performance or competence to "award compensation for the injury
caused".
The third limitation is imposed by positive law. It is a general principle
of law, recognized in national legal systems and by international
jurisprudence, that a tribunal must base its decision on the legal rights of
the parties. In the absence of a special provision in its statute, a
tribunal is not competent to base its judgment ex aequo et bono.
***
Keeping these limitations in mind, it is necessary to look at the course
actually followed by the Tribunal in dealing with the cases. In so far as
the Judgments appeared to be dealing with the question [p 151] of
non-observance of the terms and provisions, I shall refrain from comment, as
I am concurring generally with the views expressed by President Hackworth
and Vice-President Badawi. But, after touching lightly on these matters, the
Tribunal was not content to rely on the grounds set fourth in the Statute.
It proceeded to base its judgment on an entirely different cause of action:
"détournement de pouvoir" and "abuse of rights" FNl. I do not need to
discuss the propriety of attempting, without statutory authority, to
introduce these notions into international administrative law. It is
sufficient to point out that the adjudication of a cause of action based on
them was beyond the competence of the Tribunal under Article II, paragraph
5, of the Statute. Further, they were not merely beyond the scope of this
paragraph. They were completely inconsistent with "non-observance". Both
notions were based on the assumption that the Director-General was observing
the terms of appointment and the provisions of the Staff Regulations, and
exercising the legal rights of the Organization, but that he was exercising
the rights unconscionably, or for motives different from those which the
framers of the Regulations had in mind.
---------------------------------------------------------------------------------------------------------------------
FN1
The expression "détournement de pouvozr", in the unofficial translation
furnished to the Court by Unesco, has been mistranslated as "wrongful
exercise of powers". While, ordinarily, it has been used as the equivalent,
in public law, of the notion of abuse of right in private law, the four
Judgments treat them as synonymous and interchangeable terms.
---------------------------------------------------------------------------------------------------------------------
Further, in dealing with the problem of redress, the Tribunal proceeded in
disregard of the limits on its competence imposed by the Statute, and by
positive law. It abandoned the idea of awarding compensation in pursuance of
the provisions of Article VIII, and decided to award "equitable reparation",
a course which was precluded by the Statute. It abandoned legal
considerations, and decided "That redress will be ensured ex aequo et bono
by the granting to the complainant of the sum set forth below;".
Finally, when it came to the dispositive, the Tribunal jettisoned the entire
cause of action in so far as it was based on "non-observance", and relied
solely on the cause of action based on "abuse of rights". The dispositive
began with the provision: "Rejecting any wider or contrary conclusions".
Assuming that this provision has any meaning at all, it must mean that the
Tribunal was rejecting the contrary conclusions, i.e. the complainant's
objection dealt with in section "D" under the heading "on the substance" and
the respondent's contentions; and also the wider conclusions i.e.
contentions based on any ground other than abuse of rights, such as a claim
based on "non-observance". [p 152]
But even if the first provision, quoted above, has no meaning, the matter is
put beyond all doubt by the central operative clause of the dispositive,
which reads:
"Orders the decision taken to be rescinded and declares in law that it
constitutes an abuse of rights causing prejudice to the complainant :".
The words used in this, the crucial clause of the dispositive, leave no room
for doubt that the Tribunal had abandoned the complaint, in so far as it was
based on any consideration other than abuse of rights.
Before leaving the dispositive, it is necessary to refer to the declaration
which immediately precedes this clause: "Declares that it is competent ;".
It is unnecessary to repeat the comments already made with regard to this
declaration. It is sufficient to point out that the actual decision
confirming jurisdiction challenged by the Executive Board of Unesco and
presented to this Court for consideration was a declaration by the Tribunal
that it was competent to render a judgment based, not on non-observance of
the terms of appointment of officials and of provisions of the Staff
Regulations, but on abuse of rights, a matter which was plainly beyond the
competence of the Tribunal as established by the provisions of its Statute.
It has been suggested that the foregoing considerations are part of the
merits, and not relevant to the competence of the Tribunal. But I am unable
to accept this view because it does not take full account of what really
happened when the four Judgments were rendered.
Before there had been a position, under the Constitution, the Staff
Regulations and Rules, and the Statute of the Administrative Tribunal, in
which there was an orderly distribution of authority and functions among the
Organs of Unesco as regards staff matters. Sovereign power was reserved to
the Member States, but, subject to this reservation, general and paramount
power was given to the General Conference and, to a more limited extent, to
the Executive Board.
By recognizing the jurisdiction of the Administrative Tribunal of the
International Labour Organisation, a field was established within which
disputes between officials and Unesco were to be dealt with by the Tribunal.
But this field, while broad and extensive, was strictly limited. The
Tribunal could not go beyond «non-observance ... of the terms of appointment
of officials and of provisions of the Staff Regulations...", and there was
no authority to disregard the legal rights of either officials or
Organization.
The Director-General, under the Constitution, was "the chief Administrative
officer of the Organization". The Constitution was [p 153] based on the
principle of separation of the powers, and his task was simply to give
effect to the common will of Unesco, as expressed by the General Conference
and Executive Board. That common will, as regards staff matters, was largely
embodied in the Regulations and Rules, in which some discretionary powers
were conferred on the Director-General. The General Conference did not
choose to submit these discretionary matters to judicial review, but
retained them within its own authority. They were matters in which the
exercise, by the Director-General, of his discretionary powers was neither
absolute nor arbitrary, but subject to control through the political organs,
the General Conference and the Executive Board.
Henceforth, and as a result of the four Judgments, the orderly distribution
of authority and functions among the Organs—as established under the
Constitution, the Regulations and the Statute —has been destroyed. By its
assertion of competence to proceed ex aequo et bono, the subjective
appreciation of the Tribunal has been substituted for the rule of law in
deciding disputes between officials and Organization. By asserting its
competence to base its judgments on abuse of rights, the Tribunal has
substituted its own notions of "the good of the service" and "the interest
of the Organisation" for the control by the General Conference and Executive
Board over the exercise by the Director-General of discretionary powers
conferred on him by the General Conference.
In my opinion the bringing about of such a revolutionary change went far
beyond the disposition of the cases on the merits, and transcended the
competence conferred on the Tribunal by the provisions of Article II,
paragraph 5, of its Statute.
***
Having dealt with the limitations imposed on the competence of the Tribunal,
and the course actually followed in delivering judgment, it is necessary for
me to give my own opinion as to the answers that ought to be given to the
Questions set forth in the Request.
I have interpreted Question 1 as raising the issue of the competence of the
Tribunal to deliver the Judgments, -as well as its competence to deal with
the less important parts of the hearing. Accordingly, my answer is in the
negative.
The problem of dealing with Question II does not arise for me. But if
Question 1 is not interpreted as raising the issue of the competence of the
Tribunal to deliver the Judgments, it follows that [p 154] this issue would
be raised by Question II. In that event, my answer to Question II, clauses
(a) and (b), would be in the negative.
My answer to Question III is that the decisions given by the Administrative
Tribunal are invalid, by reason of lack of jurisdiction under the Statute.
(Signed) J. E. Read.
[p 155]
DISSENTING OPINION OF JUDGE CORDOVA
The Executive Board of the United Nations Educational, Scientific and
Cultural Organization, relying on Article XII of the Statute of the
Administrative Tribunal of the International Labour Organisation, has
requested an Advisory Opinion of the Court with regard to the competence of
that Tribunal to hear the complaints introduced by Messrs. Duberg and Leff
and Mrs. Wilcox and Mrs. Bernstein.
Had I not been firmly convinced that the Court should have refused to comply
with the Request of Unesco because of its lack of competence to render an
advisory opinion in circumstances such as those underlying the present case,
I would certainly have concurred in the Opinion of the Court on the merits,
and would have expressed my opinion in favour of the competence of the
Administrative Tribunal to hear and adjudicate upon the complaints referred
to above.
The decision of the Court with regard to its competence in this case will
have far-reaching consequences. For the first time the Court has had
occasion to define its own legal position in connexion with the attempt to
transform it into a Court of Appeal in cases tried by the Administrative
Tribunal of the International Labour Organisation and by that of the United
Nations. Although the present case relates only to decisions of the first of
these Tribunals, the two situations, save for slight differences, are very
similar.
The General Assembly, in Resolution 957 (X) of November 8th of last year,
adopted an amendment to the Statute of the United Nations Administrative
Tribunal introducing a new Article II which sets forth grounds for review by
the International Court of Justice of the decisions of the said Tribunal
which reproduce those set forth in Article XII of the Statute of the
Administrative Tribunal of the International Labour Organisation.
Both Articles, II and XII respectively, confer jurisdiction on the Court to
review the Administrative Tribunal's decisions by means of Advisory
Opinions, in cases in which the jurisdiction of the Tribunal is challenged,
or when it is alleged that the Tribunal has made a fundamental fault in the
procedure followed. With regard to those two grounds the two Statutes are
almost identical. The new Article II of the Statute of the United Nations
Tribunal also includes, as an additional ground for the intervention of this
Court, an error committed by the Administrative Tribunal on a question of
law relating to the provisions of the Charter. There is a further difference
which is worth noting: Article XII of the Statute of the International
Labour Organisation's Tribunal does not give to the individuals the [p 156]
right to appeal to the Court, while Article n of the United Nations Tribunal
expressly mentions the "person concerned" as a possible applicant for an
Advisory Opinion. We find the greatest deviation from the wording of Article
XII of the Statute of the International Labour Organisation's Tribunal in
Article n of the Statute of the United Nations Tribunal where it introduces
two special innovations: first, the creation of a Special Committee to act
as a screen for applications by individual members of the staff, Member
States or the Secretary-General asking that the Court should be requested to
review a decision of the Administrative Tribunal; second, the provision that
the Advisory Opinion of the Court is not binding on the United Nations
Administrative Tribunal, although it will be binding on the parties if the
Tribunal so decides. These main differences and other minor ones are not, I
think, of such a nature as to change the issue which both Statutes put
before the Court.
The legal and practical problem which both amendments tried to resolve was
the possibility for the International Court of Justice of becoming a
judicial body reviewing the decisions of the two Administrative Tribunals in
certain and specified cases. In giving its opinion in this case the Court
has also, to a certain extent, given its views on its own jurisdiction as an
appellate Court with regard to decisions of the Administrative Tribunal of
the United Nations.
There are several arguments which have convinced me that the Court lacks
jurisdiction to act in such a capacity in cases in which the parties are an
international organization on the one hand (Unesco in the present case) and
staff members on the other. These arguments relate to two different sets of
ideas. Firstly, the jurisdiction of the Court derives entirely and
exclusively from its Statute, and no other international instrument,
including the Statutes of Administrative Tribunals or the resolutions of any
Organ of the United Nations, can introduce any modification with regard to
the jurisdiction of the Court; they cannot, in particular, either enlarge or
diminish the competence of the Court, as defined by the Statute, with regard
to its two legal activities, the judicial and the advisory functions.
Secondly, the present Request for an Advisory Opinion, in fact, is designed
to bring before the Court, in second instance, a contentious case between
Unesco and several of its officials, a situation which falls, I believe,
outside the competence of the Court.
It might serve a useful purpose to remember at this point the circumstances
in which the present Article XII of the Statute of the Administrative
Tribunal of the International Labour Organisation and Article n of the
United Nations Tribunal were introduced. [p 157]
At its last Session, the Assembly of the League of Nations decided not to
comply with certain judgments of the Administrative Tribunal rendered in
1946. It was then thought that it would be wise to introduce in the Statute
the possibility to "re-consider" the decisions of the Administrative
Tribunal, denying them the automatic binding effect which they had, and
setting up a "Court of Appeal" to pass final judgments. ''Court of Appeal" :
those were the very words used by the Chairman of the Governing Body of the
International Labour Organisation in referring to the possibility for the
International Court of playing the rôle of a second instance tribunal
(Memorandum submitted by the International Labour Organisation to the
International Court of Justice, I.C.J., Pleadings, United Nations
Administrative Tribunal, p. 71). In a parallel manner, only last year, the
United Nations set up a Special Committee on the "Judicial Review of the
Judgments of the Administrative Tribunal of the United Nations", in
accordance with a previous Resolution of the General Assembly (888 (IX) of
December 17th, 1954). The work of this Special Committee led to the
introduction of the present Article II in the Statute of the Administrative
Tribunal of the United Nations.
The framers of the two amendments could not fail to recognize that the cases
tried by the Administrative Tribunals were true litigations which had been
brought before these judicial bodies to be decided by them, and that their
decisions would be binding on the parties concerned ; they also realized
that before the Administrative Tribunals, the Parties were, on the one hand,
the international organizations and, on the other, the private individuals,
members of the staffs ; and they must also have been conscious that Article
34 of the Statute of the Court—the very first Article of Chapter II dealing
with the "Competence of the Court"—expressly lays down that "Only States may
be parties in cases before the Court". In their desire, nevertheless, to
enlist the services of the highest judicial authority of the United Nations
to act as a Court of Appeal, the authors of both amendments resorted to the
procedure of Advisory Opinions, thinking that, by introducing in their
respective Statutes the provision that the Advisory Opinion should be
binding upon the parties, they could avoid the difficulty of Article 34 of
the Statute of the Court.
This historical background, the plain words used, and the spirit of the
amendments are enough to show that their authors decided, by themselves and
for themselves, that, in certain instances, the International Court of
Justice should act as Court of Appeal. It is hardly necessary to comment
upon the capacity or the right of the International Labour Organisation—or
as far as that is concerned, of the Assembly of the United Nations—to impose
upon the International Court of Justice obligations and new functions which
are not provided for in its Statute or in the Charter.[p 158]
The International Court of Justice is incompetent, both ratione personae and
ratione materiae, to play the rôle of a Court of Appeal with regard to cases
tried in first instance by the Administrative Tribunals.
In order to achieve their aims, the framers of Articles XII of the Statute
of the International Labour Organisation's Tribunal and II of that of the
Tribunal of the United Nations made a confusion between the two main
functions of this Court.
None of the Articles of the Statute expressly states that the Court has two
functions. Article 68 is the only one which, though in an incidental way,
distinguishes between the judicial functions and the advisory functions of
the Court as being different in nature. It reads :
"In the exercise of its advisory functions, the Court shall further he
guided by the provisions of the present Statute which apply in contentious
cases... "
Of all the other articles of the Statute, some refer to the judicial and
some to the advisory functions of the Court, but without drawing a precise
distinction. It is not difficult, nevertheless, to detect the different
juridical nature of the two main activities of the Court. The Statute of the
Permanent Court of International Justice, upon which the present Statute is
based, whenever it used the word "case", meant a contentious dispute ;
advisory opinions were requested upon "legal questions". The present Statute
kept this terminology and thus we see that all articles dealing with the
competence and compulsory jurisdiction of the Court, from Article 34 to
Article 38, refer only to "cases" without any other qualification, but they
all refer to contentious disputes exclusively. The Rules of both the
Permanent Court and this Court likewise refer only to "cases" in all the
articles included under "Heading II : Contentious Proceedings".
The judicial activity of the Court deals only with contentious disputes
between parties. These are the "contentious cases" to which Article 68
refers. The resolution of the Court in cases, contentious in their nature,
is a decision, a judgment establishing the rights of the parties with
binding force. The resolution, the decision or, properly stated, the
judgment rendered by the Court in such cases is binding upon the parties. A
very different situation appears with regard to the advisory function of the
Court. This is only discharged when there is no contention for the Court to
decide ; where there are no parties in the proper juridical sense of the
word. The Organ or the Specialized Agency seeking an opinion of this kind
does not wish, in principle, to be bound by [p 159] it. They are merely
seeking juridical advice from the Court on a legal question.
The difference between the judicial and the advisory functions of the Court
lies in the fact that, in the first of these, there are two or more parties
which submit a dispute to the Court, to its authority to impose upon them
the law, while in the second, there is no dispute, no parties, and no
compulsory jurisdiction to decide upon rights and duties in conflict, even
though the body seeking the advisory opinion may be willing to accept and be
guided by it.
There is also a very important difference as regards the parties which may
appear before the Court in each of the two aforementioned functions. The
Statute makes a very clear distinction between those entitled to come before
the Court seeking a judgment and those allowed to request advice. This great
difference should be borne in mind in order to understand why the present
Request for an Advisory Opinion should have been declined.
Article 65 of the Statute provides that the Court may give an Advisory
Opinion at the request of “whatever body may be authorized by or in
accordance with the Charter of the United Nations". In turn, Article 96 of
the Charter directly provides that the General Assembly arid the Security
Council may request such Advisory Opinions and, indirectly, if so authorized
by the General Assembly, that "other organs of the United Nations and the
Specialized Agencies" may also request such Advisory Opinions. Therefore,
according to the Statute, only the General Assembly, the Security Council,
other organs of the United Nations and the Specialized Agencies may request
Advisory Opinions. States and individuals are not allowed to request them.
Unesco, being a Specialized Agency and having been granted authorization by
the Assembly, may therefore legally ask for an Advisory Opinion, that is to
say, for a decision of this Court, as defined above.
Neither the General Assembly, the Security Council, other organs,
Specialized Agencies, nor individuals may ask the Court to render a decision
in contentious cases. Articles 34, 35, 36 and 37 of the Statute, which
govern the judicial competence of the Court, exclude the legal possibility
of their becoming parties in contentious cases before the Court. That is the
only way in which the rule laid down by Article 34, paragraph I, can be
understood. It says plainly and clearly :
"Only States may be parties in cases before the Court."
In its three paragraphs, Article 35 only makes reference to States which may
either be or not be parties to the Statute, but they must [p 160] be States
for the Court to be open to them in contentious cases. Article 36, in
dealing with the compulsory jurisdiction of the Court, refers to "States
parties to the present Statute".
In a word, the contentious jurisdiction, the true judicial function of the
Court, covers contentious disputes between States, only and exclusively.
In debarring individuals from coining before the Court as parties to "a
case", that is, to a contentious litigation, the Statute adopted the theory
that individuals are not subjects of international law.
Attention should be called here to a precedent which seems to be of
importance. The possibility for the International Court of Justice of
becoming a Court of Appeal with regard to cases tried by Administrative
Tribunals was considered and not accepted by the framers of the Statute..
The Delegates to the United Nations Conference on International Organization
at San Francisco had before them a proposal, drafted in almost identical
terms and inspired by the same ideas 3s the amendments contained in Articles
XII and II of the respective Statutes of the Administrative Tribunals of the
International Labour Organisation and of the United Nations.
At San Francisco the Delegation of Venezuela proposed the insertion of the
following paragraphs in Article 34 of the Statute :
"Article 34.—(1) With the exception of the provisions in paragraph 2 of this
Article, only States or Members of the United Nations may be parties in
cases before the Court.
(2) As a Court of Appeal, the Court will have jurisdiction to take
cognizance over such cases as are tried under original jurisdiction by
international administrative tribunals dependent upon the United Nations
when the appeal would be provided in the Statute of such Tribunals." (United
Nations Conference on International Organization, Documents, Vol. 13, p.
482.)
Therefore, exactly the same situation as the one which is now envisaged by
the Statutes of the Administrative Tribunals was under consideration by the
Delegates to the San Francisco Conference. The Venezuelan amendment even
refers to the possibility of the Statutes of those Administrative Tribunals
providing that the International Court of Justice should have the neur
function as a Court of Appeal. If the Delegates had wished the International
Court to act as the Statute of the Administrative Tribunal now requires,
they certainly had the occasion to introduce into the Statute a provision to
that effect ; but, on the contrary, the amendment to Article 34 proposed by
the Delegation of Venezuela was not incorporated in the Statute, thus
excluding that legal possibility.
It is interesting to note that the Delegation of Venezuela, as well as all
other Delegations, never thought that such an amend-[p 161] ment dealing
with the possible jurisdiction of the Court as a Tribunal of Appeal, could
have any other place than in the chapter on the contentious competence of
the Court and never in connexion with its advisory function.
When the San Francisco Conference, which drafted and approved the Statute,
did not adopt this amendment, it also, in fact, rejected the possibility for
individuals or for bodies other than States to become parties in "cases"
before the Court. The failure of the Venezuelan amendment is sufficient
evidence, in my opinion, to show that the Statute completely rejects the
possibility for the Court to play the part of a Court of Appeal in precisely
the same terms in which Unesco has requested the Court to do so in this
case. To my mind, this failure of the Venezuelan amendment amounts to an
advanced denial and clear rejection of all Requests for Advisory Opinions
having the effect of an appeal, presented on the basis of Articles XII and n
of the respective Statutes of the two Administrative Tribunals.
After Article 34 and the Venezuelan amendment had been discussed in
Committee 4 of the San Francisco Conference, the Chairman, Mr. Gallagher
from Peru, summarizing the discussion, stated :
"The principle involved in Article 34 was that States, but not private
individuals or international organizations, might be parties to cases."
(United Nations Conference on International Organization, vol. 14, p. 141.)
From the foregoing, which I believe is the correct and only possible
interpretation of the Statute of the Court as a whole, I feel justified in
concluding that Unesco could have asked for an Advisory Opinion on an
abstract question of law, only if it were seeking advice, an opinion without
legal binding force. An Advisory Opinion could never have been asked from
this Court in accordance with Articles 34 and 66 of the Statute when, as in
the present instance, the case brought before the Court is a contentious
legal difference between two or more parties, and when the Organization
brings it before the Court with the intention that it will render—in the
guise of an advisory opinion or advice—a true judgment, a real decision
binding those parties.
The confusion made by Articles XII and II of the Statute of both
Administrative Tribunals between the judicial and advisory functions of the
Court in order to transform an Advisory Opinion into a Judgment is an
absolute legal impossibility according to the only applicable law- : the
Statute.
Nobody questions that what Unesco is trying to obtain from the Court is not
an opinion or advice but a binding decision, a judgment. The very words of
the Statute of the Administrative Tribunal of [p 162] the International
Labour Organisation are the best evidence that what Unesco is seeking is
revision, a second instance decision, a final judgment.
The decision of the Court seems to be predicated on the assumption that
Article XII of the Administrative Tribunal's Statute is res inter alios acta
for the Court, meaning that the Advisory Opinion has nothing to do with the
rule laid down by the said Article XII. With regard to the binding force
upon the parties before the said Tribunal, this rule, directed solely to the
Organization and to the staff members, had nothing to do with the Court
itself.
It should be remembered that the Request itself refers to the Executive
Board of Unesco as acting within the framework of Article XII of the Statute
in asking for the Advisory Opinion. That is, the Executive Board found the
source of its faculty to ask for an Advisory Opinion with binding force with
regard to the decision of the Administrative Tribunal precisely in Article
XII of the Statute of that judicial body. If the Executive Board had relied
only on the authorisation of the General Assembly to ask for such an
Advisory Opinion, and had not relied on Article XII of the Statute of the
Administrative Tribunal, it could not claim that the Advisory Opinion given
by the Court would be binding on the staff members who were parties to the
dispute before the Administrative Tribunal. The Advisory Opinion thus
obtained by Unesco would be a real Advisory Opinion without binding force.
But, by relying on, and purporting to act within, the framework of the
Statute, Unesco considers itself justified in imposing the Advisory Opinion
on its officials because they accepted the Statute of the Tribunal in
signing their contracts of employment. Article XII is the only and the
indispensable link between an Advisory Opinion pure and simple and the
Advisory Opinion with a supposed effect of a judgment.
The closest that a Request for an Advisory Opinion may come to a contentious
case, without nevertheless changing its nature, may be found in Article 82,
paragraph 1, and Article 83 of the Rules of Court.
"Article 82, para. I.—In proceedings in regard to advisory opinions, the
Court shall, in addition to the provisions of Article 96 of the Charter and
Chapter IV of the Statute, apply the provisions of the Articles which
follow. It shall also be guided by the provisions of these Rules which apply
in contentious cases to the extent to which it recognizes them to be
applicable ; for this purpose it shall above all consider whether the
request for the advisory opinion relates to a legal question actually
Pending between two or more States."
"Article 83.—If the advisory opinion is requested upon a legal question
actually pending between two or more States, Article 31 of the Statute shall
apply, as also the provisions of these Rules concerning the application of
that Article."
In the circumstances envisaged by these Articles, since the States have not
themselves submitted the case to the jurisdiction of the [p 163] Court, the
question is only potentially a contentious case. Nevertheless Article 83
makes it possible for those States to appoint ad hoc Judges in compliance
with Article 31 of the Statute just as if the question were actually a
contentious dispute ; but even then, the Advisory Opinion will not be
binding either on the requesting body or on the interested States.
The view has also been expressed that Article 34 of the Statute, which deals
only with contentious disputes, has nothing to do with the present case,
because the Court is riot here concerned with a contentious dispute but only
with a Request for an Advisory Opinion ; that the Court is not concerned
with "parties" in the juridical sense of the word, Unesco being the only one
appearing before the Court and that this Court is not obliged and should not
try to ascertain what the real purpose of Unesco is in seeking such an
Advisory Opinion.
With this interpretation of the facts and of the legal position of Unesco I
cannot agree. I believe that the first obligation of the Court—-as of any
other judicial body—is to ascertain its own competence and, in order to do
that, it has first to determine what is the nature of the case which is
brought before it. The present Request, by definition and application of
Article XII of the Administrative Tribunal, will be binding on both the
Organization and the private individuals, its officials; it may not be
considered therefore as anything different from a contentious case. It is
impossible to get away from the fact that the officials were necessarily
parties in the first instance and they should be so considered in the second
instance as well. One cannot think of this case as being of two different
natures, a contentious case before the Administrative Tribunal and not a
contentious one when it comes before the Court. When and why should it lose
its initial nature ? When it comes to the second instance before the Court
and just because it is improperly introduced as an Advisory Opinion ? The
decision of this Court is not only connected with, but absolutely restricted
to, the contentious dispute decided by the Administrative Tribunal between
the two parties, the Organization and the individuals.
In the Court's Advisory Opinion of July 13th, 1954, on the "Effect of Awards
of Compensation made by the United Nations Administrative Tribunal", we find
the following passage :
"If he terminates (the Secretary-General) 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, the stag member concerned and the United Nations Organization,
represented by the Secretary-General, will become bound by the judgment of
the Tribunal."
Therefore the parties in a dispute decided by an Administrative Tribunal are
the Organization itself and the staff member who [p 164] brought the action
before the Tribunal. This, of course, necessarily means that, should there
be a second instance, the parties must be the same before the reviewing
tribunal, in Our case, before the Court. That is the essence of an appeal,
the essence of a second instance, the essence of a revision of a decision of
a lower court. The decision of the International Court of Justice to which I
have just referred was given in a case where the Statute of the
Administrative Tribunal of the United Nations did not provide for an appeal
to the Court but laid down that its Judgments should "be final and without
appeal". But when the Statute provides for the possibility of an appeal, may
the Court Say that the parties in this appeal do not exist or are not the
same as the ones which argued the case in first instance before the
Administrative Tribunal ? There is no way out : the parties remain the same,
they have to be the same or the decision of the Court would not and could
not be binding upon them.
Article XII of the Statute, the application of which Unesco is seeking,
states : "2. The Opinion given by the Court shall be binding." Upon whom ?
Upon the Organization only ? That is not the intention of the framers of
Article XII. What is wanted is to have the Advisory Opinion of the Court
binding upon both the Organization and the staff member. This effect can
never be juridically attained unless the staff member is considered as a
party in the second instance. Since the Statute prevents individuals and
international organizations, that is to Say, Unesco and its officials, from
bringing their disputes before the Court and since the present case is
undoubtedly a contentious one, the inescapable legal conclusion follows that
the Court has no competence ratione personae to entertain and give a
decision in the present case.
Neither has the Court competence ratione materiae to deal with this kind of
dispute.
This other aspect of the incompetence of the Court also flows from the
Statute. It relates to the nature of the litigation and of the law which the
Court has been called upon to apply.
Article 14 of the Covenant of the League of Nations, which was the origin of
the Permanent Court of International Justice and therefore of this
International Court of Justice, stated :
"The Court shall be competent to hear and determine any dispute of an
international character which the parties thereto submit to it."
These words are the basis of all judicial activities of the Permanent Court
of International Justice and therefore of the International Court of
Justice. i do not think that anybody can contend that a dispute between an
international organization and a member of its staff, though a contentious
case, is an international dispute, in the sense that the Covenant of the
League of Nations and the Statutes [p 165] of the Permanent Court of
International Justice and of the present Court (Article 34 in both
Statutes), refer to international disputes as "cases".
Article 38 of the Statute is thus worded :
"The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it..."
This provision, if correctly interpreted, means that the Court was set up to
apply inter-State law only, because only States may submit disputes to the
Court.
There are times when an Arbitration Tribunal or this Court have to deal with
municipal law, or any other kind of law and even with private contracts,
when they have to take judicial notice of its existence, and perhaps even of
its correct interpretation. Such a case was, for instance, the Nottebohm
case, and there are many others, especially those involving the wrongful
acts of Governments against foreigners, denial of justice, direct or
indirect responsibility and the like ; but even then, neither this Court nor
the Arbitration Tribunals apply municipal law ; they only have to judge such
cases according to inter-State law. Municipal law, administrative laws and
private contracts only concern them incidentally, in the same way as they
have to concern themselves with the facts of the case submitted to them.
Charters of international organizations being, in fact, conventions between
States form part, as such, of inter-State law. The Statutes of
Administrative Tribunals and the Staff Regulations, all dealing with legal
relations between the Organization and private individuals may perhaps be
classified as administrative international law ; but Article 38 of the
Statute, quoted above, does not give to the Court the possibility of
applying in contentious cases such administrative international law, because
in this kind of judicial controversy brought before the Court, the parties
being States, the only international law applicable has to be perforce,
inter-State law. International administrative law would have as much reason
to be applied by the Court, under Article 38 of its Statute, as
international criminal law, that is to Say the Statute and the Principles of
the Nuremberg Tribunal. International administrative law and international
criminal law may form part of a wider concept of the law of nations, but
they certainly concern the relations between a State and individuals and
therefore they have no room within the interpretation of the words
"international law" as used in Article 38 of the Statute of the Court. Once
having decided to comply with the Request, the Court had to apply the
Statute of the Administrative Tribunal, the Staff Regulations and the
contract between the parties, Unesco and the individual officials concerned,
that is to [p 166] Say, it had to apply "International Administrative Law".
The incompetence of the Court ratione materiae, I believe, is thus also well
established.
What have been the extraordinary practical and juridical consequences of the
confusion between the judicial and the advisory activities of the Court ?
Being parties, Unesco and the officials were entitled to equal treatment in
the administration of justice. They obtained it in the first instance before
the Administrative Tribunal, but were they able to enjoy it before the Court
as was their right ? The inequality of the parties in the present case is
evident. owing to the impossibility under the Statute for individuals to
come before the Court and therefore the impossibility for the Court to
respect one of the most fundamental and time-honoured principles which
requires equality of the parties before the law and in the exercise of their
rights before tribunals. In an effort to minimize such an inequality, the
Court, on March 16th of this year, decided to depart from the normal
procedure and dispense with the hearings in this case. This decision was in
harmony with last year's Recommendation of the General Assembly in the sense
that, in order to maintain the equality between the parties as much as
possible, the international organizations, the States and the
Secretary-General, when seeking a revision of a decision of the United
Nations Tribunal, should not make oral statements.
With the same idea in mind the Court accepted the very unusual procedure
that one of the parties, Unesco, would lay before the Court both, its own
arguments and those of the other parties, its opponents, the Unesco
officials. Of course, this abnormal procedure, in the sense that it is not
in conformity with the norms, only makes more flagrant the existence of such
inequality between the parties. Even with regard to the written arguments,
the mere fact that the plaintiffs before the Administrative Tribunal in the
procedure before the Court had to depend upon the goodwill of their
opponents to act as an intermediary for the presentation of their views
having regard to the unavoidable obstacle of the Statute, the Court, the
highest judicial organ of the United Nations, was not in a position to
administer justice, in cases like the present one, on the basis of strict
equality between the parties.
It has been said that in this case the inequality of the parties is only
apparent because the officials were able to present their views to the
Court. This means, in effect, that although there was a recognized legal
inequality between the parties, in the sense that they could not both appear
on the same footing before the Court, this legal inequality, in fact, did
not represent a practical disadvantage for the staff members. [p 167]
Even from the practical point of view the inequality existed. The officials
could not and may not call upon the Court—as the Organization was entitled
to do—to adjudicate in second instance on a decision taken against them ;
nor were they able to appear to argue the case in oral proceedings before
the Court. But even granting, for the sake of argument, that, from the
practical viewpoint, there would have been equality between Unesco and the
staff members, the fact that the latter are legally precluded from asserting
their own rights themselves constitutes a juridical inequality which makes
it impossible for the Court to administer justice in strict compliance with
the basic principles of justice.
That the Statute requires legal as well as practical conditions of equality
of the parties for the Court to act legally is made abundantly clear from
the wording of Article 35, paragraph 2, of its Statute, which provides that
the Court shall be open to other States on conditions laid down by the
Security Council, provided that "in no case shall such conditions place the
parties in a position of inequality before the Court".
If the Security Council must not place the parties in a position of
inequality before the Court, even when the Council itself is not one of
these parties, can a Specialized Agency, such as the International Labour
Organisation or Unesco, create conditions placing a party, its own
opponents, in a position of inequality before the Court ?
There are, of course, instances in which, even in the absence of one of the
parties, the Court, or any other tribunal, can render a legal decision. That
is the situation envisaged by Article 53 of the Statute, when one of the
parties does not appear or fails to defend its case. Rut this article deals
with a case of a judgment by default, with the voluntary absence of one of
the parties, and has nothing to do with the legal impossibility to be
present and to defend its own cause, a situation with which the Court was
confronted in this case.
Some of the Judges also shared the view that the Court should have declined
to give the Advisory Opinion in this case, on the sole ground that the Court
cannot administer justice in accordance with the well-established principle
of equality of the parties in any judicial procedure. They do not go so far
as to Say that this inequality, being exclusively derived from the Statute,
constitutes in fact and in law the incompetence ratione personae of the
Court. They are reluctant to admit the incompetence of the Court but,
nevertheless, they have to rely on the fact that the present Request brings
before the Court a contentious case in which the parties, a Specialized
Agency and private individuals, are both precluded by the Statute from
appearing in a contentious dispute. The inequality of the parties appears
both in the first instance as well as in the procedure before the Court. III
the first instance, [p 168] the individual is not entitled to appeal against
a decision of the Administrative Tribunal while the other party, Unesco, is
entitled to do so. In the second instance, while Unesco may present written
and oral arguments, the individual has no such legal possibilities. The
source of both inequalities is to be found in the Statute alone. The framers
of Article XII knew perfectly well that the staff member could never be
entitled to ask for an Advisory Opinion or for a decision from the Court,
and so they did not even try to give such a right to the staff members. For
individuals and international organizations to be parties in a contentious
procedure it would be absolutely necessary to change the Statute, the only
means of securing equality for them before the Court. This fact necessarily
means that the Court, according to the present terms of the Statute, cannot
legally act in compliance with the equality principle, which is the same
thing as to Say that the Court is incompetent or has not the legal
possibility in this case to discharge its functions.
(Signed) R. Cordova. |
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