23 October 1956

 

General List No. 30

 
     

international Court of Justice

     
     
     

Judgments of the Administrative Tribunal of the International Labour Organizations upon Complaints Made against the United Nations Educational Scientific and Cultural Organization

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE: President: Hackworth;
Vice-President: Badawi;
Judges: Basdevant, Winiarski, Zoricic, Klaestad, Read, Armand-Ugon, Kojevnikov, Sir Muhammad Zafrulla Khan, Sir Hersch Lauterpacht, Moreno Quintana, Cordova
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1956.10.23_administrative_tribunal.htm
   
Citation: Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against the U.N.E.S.C.O., Advisory Opinion, 1956 I.C.J. 77 (Oct. 23)
 
     
 
 
     
 

[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.
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[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.
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[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]
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[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."
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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.
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[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.

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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.".
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[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.
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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]

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[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.
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***
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.
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[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.
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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.
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[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.

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***
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 exñós 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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