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[p.326]
In the matter of the Application for Review of Judgement No. 273 of the
United Nations Administrative Tribunal,
The Court,
composed as above,
gives the following Advisory Opinion:
1. The question upon which the advisory opinion of the Court has been asked
was laid before the Court by a letter dated 23 July 1981, filed in the
Registry on 28 July 1981, from the Secretary-General of the United Nations.
By that letter the Secretary-General informed the Court that the Committee
on Applications for Review of Administrative Tribunal Judgements had,
pursuant to Article 11 of the Statute of the United Nations Administrative
Tribunal, decided on 13 July 1981 that there was a substantial basis for the
application made to that Committee for review of Administrative Tribunal
Judgement No. 273, and had accordingly decided to request an advisory
opinion of the Court. The decision of the Committee, which was set out in
extenso in the Secretary-General's letter, and certified copies of which in
English and French were enclosed with that letter, read as follows:
"The Committee on Applications for Review of Administrative Tribunal
Judgements has decided that there is a substantial basis within the meaning
of Article 11 of the Statute of the Administrative Tribunal for the
application presented by the United States of America for review of
Administrative Tribunal Judgement No. 273, delivered at Geneva on 15 May
1981. Accordingly, the Committee requests an advisory opinion of the
International Court of Justice on the following question:
'Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station?'"
2. In accordance with Article 66, paragraph 1, of the Statute of the Court,
notice of the request for an advisory opinion was given on 4 August 1981 to
all States entitled to appear before the Court; a copy of the
Secretary-General's letter with the decision of the Committee appended
thereto was transmitted to those States.
3. Pursuant to Article 65, paragraph 2, of the Statute and to Article 104 of
the Rules of Court, the Secretary-General of the United Nations transmitted
to the Court a dossier of documents likely to throw light upon the question;
these documents reached the Registry in English on 30 September 1981 and in
French on 10 November 1981.
4. The President of the Court decided on 6 August 1981 that the United
Nations and its member States were to be considered as likely to be able to
furnish information on the question. Accordingly, on 10 August 1981 the
Registrar notified the Organization and its member States, pursuant to
Article 66, [p 327] paragraph 2, of the Statute of the Court, that the Court
would be prepared to receive written statements from them within a
time-limit fixed at 30 October 1981 by an Order of the President dated 6
August 1981.
5. At the request of the Secretary-General of the United Nations, the Acting
President of the Court, by Order of 8 October 1981, extended that time-limit
to 30 November 1981.
6. Within the time-limit as so extended, written statements were received
from the Governments of France and of the United States of America, and the
Secretary-General of the United Nations transmitted to the Court, pursuant
to Article 11, paragraph 2, of the Statute of the Administrative Tribunal, a
statement setting forth the views of Mr. Ivor Peter Mortished, the former
staff member to whom the Judgement of the Administrative Tribunal relates.
By a telex message received in the Registry on 2 December 1981 the
Secretary-General informed the Court that he would not be submitting a
written statement to the Court other than formally transmitting the
observations of Mr. Mortished.
7. Copies of these statements were on 21 and 23 December 1981 communicated
to the United Nations and to the States to which the communication provided
for in Article 66, paragraph 2, of the Statute had been addressed.
8. By letter of 1 March 1982, France and the United States of America, as
well as the United Nations, were informed that the Court, pursuant to
Article 66, paragraph 4, of its Statute, had decided to permit any State or
organization having presented or transmitted a written statement to submit
comments in writing on the statement made or transmitted by any other, and
had fixed 15 April 1982 as the time-limit for the submission of such
comments. Within the said time-limit, written comments were received in the
Registry from France and from the United States of America. The
Secretary-General also transmitted to the Court a letter from counsel for
Mr. Mortished indicating that he did not wish to comment on the statements
presented.
9. On 19 and 21 April 1982 the Registrar transmitted to the United Nations
and to the States to which the communication provided for in Article 66,
paragraph 2, of the Statute had been addressed, copies of the written
comments of France and the United States of America, and informed them that
the Court did not intend to hold any sitting for the purpose of hearing oral
statements or comments in the case.
10. The Judgement of the United Nations Administrative Tribunal (Judgement
No. 273) which was the subject of the application to the Committee on
Applications for Review of Administrative Tribunal Judgements resulting in
the present request for advisory opinion was given on 15 May 1981 in case
No. 257, Mortished v. the Secretary-General of the United Nations. The facts
of that case, as found by the Administrative Tribunal, were briefly as
follows. Mr. Mortished, an Irish national, entered the service of the
International Civil Aviation Organization (ICAO) on 14 February 1949. In
1958 he was transferred to the United Nations, and received a permanent
appointment as a Translator/Précis-Writer. On 1 April 1967 he was
transferred from United Nations Headquarters in New York to the United
Nations Office at Geneva. On attaining the age of 60, he retired from United
Nations service on 30 April 1980. A benefit known as the [p 328]
"repatriation grant" is payable in certain circumstances to staff members at
the time of their separation from service, under United Nations Staff
Regulation 9.4, and Annex IV to the Staff Regulations, which provide as
follows:
"Regulation 9.4: The Secretary-General shall establish a scheme for the
payment of repatriation grants within the maximum rates and under the
conditions specified in annex IV to the present Regulations."
"Annex IV
Repatriation grant
In principle, the repatriation grant shall be payable to staff members whom
the Organization is obligated to repatriate. The repatriation grant shall
not, however, be paid to a staff member who is summarily dismissed. Detailed
conditions and definitions relating to eligibility shall be determined by
the Secretary-General. The amount of the grant shall be proportional to the
length of service with the United Nations, as follows:"
(Annex IV continues with a table of the amount of the grant according to
length of "continuous service away from home country".)
The grant was established by General Assembly resolution 470 (V) of 15
December 1950, following the abolition of an expatriation allowance which
was paid annually. The "detailed conditions and definitions" referred to in
Annex IV were laid down by the Secretary-General in Staff Rule 109.5. When
Mr. Mortished joined United Nations service in 1958 by transfer from ICAO,
he had received from the United Nations Office of Personnel a personnel
action form stating: "Service recognized as continuous from 14 February
1949" and "Credit towards repatriation grant commences on 14 February 1949".
11. At the time of Mr. Mortished's retirement, the United Nations General
Assembly had recently adopted two successive resolutions relating to (inter
alia) the repatriation grant. By resolution 33/119 of 19 December 1978, the
General Assembly decided
"that payment of the repatriation grant to entitled staff members shall be
made conditional upon the presentation by the staff member of evidence of
actual relocation, subject to the terms to be established by the
[International Civil Service] Commission;"
that is to say, evidence that upon separation, the staff member was not
continuing to reside in the country of his last duty station. Pursuant to
this resolution, the International Civil Service Commission established a
text with a view to the modification of the Staff Rule governing the
repatriation grant, which had not previously contained any requirement for
evidence of this kind to be produced. This text was given effect from 1
July 1979 by the Secretary-General, first by Administrative Instruction
ST/AI/262 of 23 April 1979, and subsequently by an amendment to Staff Rule
109.5 circulated on 22 August 1979. Paragraphs (d) and (f) of the new text
of that Rule provided that:[p 329]
"(d) Payment of the repatriation grant shall be subject to the provision by
the former staff member of evidence of relocation away from the country of
the last duty station. Evidence of relocation shall be constituted by
documentary evidence that the former staff member has established residence
in a country other than that of the last duty station."
"(f) Notwithstanding paragraph (d) above, staff members already in service
before 1 July 1979 shall retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the grant
which they already had accrued at that date without the necessity of
production of evidence of relocation with respect to such qualifying
service."
In the case of Mr. Mortished, who had accrued the maximum qualifying service
(12 years) well before 1 July 1979, paragraph (f) would have totally
exempted him from the requirement as to evidence of relocation.
12. On 17 December 1979, however, the General Assembly adopted resolution
34/165 by which it decided, inter alia, that:
"effective 1 January 1980 no staff member shall be entitled to any part of
the repatriation grant unless evidence of relocation away from the country
of the last duty station is provided".
On 21 December 1979 the Secretary-General accordingly issued Administrative
Instruction ST/AI/269, amending Administrative Instruction ST/AI/262 with
effect from 1 January 1980; its effect was to abolish the transitional
provision of Staff Rule 109.5 (f), quoted above. Even before Mr. Mortished
retired on 30 April 1980, he had appealed to the Joint Appeals Board
established by Staff Rule 111, with a view to claiming a right to
repatriation grant without producing evidence of relocation, and requested
the agreement of the Secretary-General for direct submission of an
application to the Administrative Tribunal under Article 7, paragraph 1, of
the Statute of the Tribunal. That was agreed to, but in the meantime, on Mr.
Mortished's retirement, the Secretariat had refused to make payment to him
of the repatriation grant without evidence of relocation. Mr. Mortished
seised the Administrative Tribunal of an appeal on 10 October 1980. In the
meantime Administrative Instruction ST/AI/269 had been followed up by a
revised edition of the Staff Rules, with the deletion of paragraph (f) of
Rule 109.5. By Judgement No. 273 the Tribunal decided, for reasons to be
examined below, that:
"By making payment of the Applicant's repatriation grant conditional on the
production of evidence of relocation, the Respondent failed to recognize the
Applicant's acquired right, which he held by virtue of the transitional
system in force from 1 July to 31 December 1979 and set forth in Staff Rule
109.5 (f)."
The Tribunal recognized that Mr. Mortished "was entitled to receive that
grant on the terms defined in Staff Rule 109.5 (f), despite the fact that
that rule was no longer in force on the date of [his] separation from the
United Nations", and was therefore entitled to compensation for the injury
sustained "as the result of a [p330] disregard of Staff Regulation 12.1 and
Staff Rule 112.2 (a)". That Regulation and that Rule provide as follows:
"Regulation 12.1 : These Regulations may be supplemented or amended by the
General Assembly, without prejudice to the acquired rights of staff
members."
"Rule 112.2
Amendment of . . . staff rules
(a) These rules may be amended by the Secretary-General in a manner
consistent with the Staff Regulations."
The injury was assessed at the amount of the repatriation grant of which
payment was refused.
*
13. On 15 June 1981, the United States of America addressed a letter to the
Acting Legal Counsel of the United Nations by way of application to the
Committee on Applications for Review of Administrative Tribunal Judgements,
under Article 11, paragraph 1, of the Statute of the Tribunal, asking the
Committee to request an advisory opinion of the Court. The text of that
application is set out in paragraph 39 below. In accordance with the
Provisional Rules of Procedure of the Committee, a copy of the application
was transmitted to counsel for Mr. Mortished, and written comments on it
were submitted on his behalf to the Committee on 23 June 1981. A copy was
also transmitted to the Secretary-General of the United Nations, who advised
the Committee on 23 June 1981 that he was not availing himself of his right
under the Provisional Rules of Procedure to submit comments on the
application.
14. The Committee considered the application at two meetings held on 9 and
13 July 1981. Counsel for Mr. Mortished had requested that he be given the
opportunity to participate in all the proceedings of the Committee; that he
be permitted to make statements to the Committee; that the sessions of the
Committee be open; that the proceedings of the Committee be duly recorded;
and that an official transcript of the record be made available to him
(A/AC.86/ R.100, p. 3). The Committee decided, without a vote, that its
discussions should be recorded on tape, and that "if the United States
application is accepted", they would be "transcribed and distributed to the
members of the Committee, to the parties concerned in Mr. Mortished's case"
and to the Court (A/AC.86(XX)/ PV.l, pp. 12, 13-15; A/AC.86(XX)/PV.2, p.
63). A proposal by the represen-tative of the United Kingdom that the
Committee invite Mr. Mortished's counsel to be present during the
Committee's consideration of the application before it and that, if
necessary, he be permitted to make a statement, was rejected by the
Committee by 5 votes to 2, with 9 abstentions; the representative of the
United States did not participate in the vote.
15. After members of the Committee had presented their views on the
application presented by the United States, the Chairman requested the
Committee to indicate whether there was a substantial basis for the
application within the meaning of Article 11 of the Statute of the
Administrative Tribunal on the ground that the Administrative Tribunal had
erred on a question of law relating [p 331] to the provisions of the Charter
of the United Nations. The Committee agreed, by a vote of 14 to 2, with 1
abstention, that there was a substantial basis for the application on that
ground. The Chairman then requested the Committee to indicate whether there
was a substantial basis for the application within the meaning of Article 11
of the Statute of the Administrative Tribunal on the ground that the
Administrative Tribunal had exceeded its jurisdiction or competence. The
Committee agreed by a vote of 10 to 2, with 6 abstentions, that there was a
substantial basis for the application on that ground. Neither of those two
grounds, nor any of the grounds stated in Article 11 of the Tribunal's
Statute, had been mentioned, at least in the form in which they are
enumerated in that Article, in the United States application communicated to
Mr. Mortished. The formulation of the question to be put to the Court was
then adopted, without a vote being taken, as set out in the application of
the United States of America.
***
16. The Court will begin by considering whether it is competent to comply
with this request for an advisory opinion submitted by the Committee on
Applications for Review of Administrative Tribunal Judgements (hereinafter
called "the Committee"), and whether it should exercise its discretion to do
so. It is the second request which has been submitted under the terms of
Article 11, paragraphs 1 and 2, of the Statute of the United Nations
Administrative Tribunal which provide as follows:
"1. If a member State, the Secretary-General or the person in respect of
whom a judgement has been rendered by the Tribunal (including any one who
has succeeded to that person's rights on his death) objects to the judgement
on the ground that the Tribunal has exceeded its jurisdiction of competence
or that the Tribunal has failed to exercise jurisdiction vested in it, or
has erred on a question of law relating to the provisions of the Charter of
the United Nations, or has committed a fundamental error in procedure which
has occasioned a failure of justice, such member State, the
Secretary-General or the person concerned may, within thirty days from the
date of the judgement, make a written application to the Committee
established by paragraph 4 of this article asking the Committee to request
an advisory opinion of the International Court of Justice on the matter.
2. Within thirty days from the receipt of an application under paragraph 1
of this article, the Committee shall decide whether or not there is a
substantial basis for the application. If the Committee decides that such a
basis exists, it shall request an advisory opinion of the Court, and the
Secretary-General shall arrange to transmit to the Court the views of the
person referred to in paragraph 1."
It is however the first such request to arise from the Committee's
consideration of an application by a member State. It therefore raises
problems relating to the general aspects of the review procedure and also
some specific problems concerning the fact that the request now before the
[p 332]Court is the outcome of an application by the Government of the
United States.
17. In 1973, when giving its Advisory Opinion on the Application for Review
of Judgement No. 158 of the United Nations Administrative Tribunal, the
Court envisaged a situation of this kind, though it was then no more than a
hypothesis. On that occasion, the advisory proceedings had been set in train
by a staff member's application to the Committee, and the Court was careful
to stress that its conclusions regarding the compatibility of the review
procedure with the requirements of the judicial process were to be
understood as applying to a case of that nature. It did not, of course,
overlook the fact that a similar request for an advisory opinion might, by
the terms of Article 11 of the Statute of the Administrative Tribunal,
originate in a decision taken by the Committee on the application of a
member State. However, during the debates in the General Assembly in 1955,
at the time of adoption of the procedure in question, various arguments had
been put forward against the propriety of the provision making this
possible. This introduced "additional considerations which would call for
close examination by the Court if it should receive a request for an opinion
resulting from an application to the Committee by a member State" (I.C.J.
Reports 1973, p. 178, para. 31). Those considerations were "without
relevance" in the 1973 proceedings, so that it was not then necessary for
the Court to evaluate them before reaching its decision on the advisory
opinion requested of it. It therefore stated that it was not to be
understood as "expressing any opinion in regard to any future proceedings
instituted under Article 11 by a member State" (ibid.). Hence the Advisory
Opinion given by the Court on the Application for Review of Judgement No.
158 of the United Nations Administrative Tribunal is relevant to its
approach to the present request on two main counts: because that Opinion
recognized that it would be incumbent upon the Court to examine the features
characteristic of any request for advisory opinion the Committee decides to
submit at the prompting of a member State, and because it indicated that the
Court should bear in mind during that examination not only the
considerations applying to the review procedure in general but also the
"additional considerations" proper to the specific situation created by the
interposition of a member State in the review process.
18. The Court of course will not fail to discharge that duty. It will
consider the problems raised by the present request in the light of the
considerations previously discussed in its 1973 Advisory Opinion and of
those which it finds relevant to the present case. To that end, it must
recall those considerations which it found important for the above-mentioned
Opinion and then add those arising from the special characteristics of the
present advisory proceedings. This will enable it to proceed to an
examination of the course in fact taken by the proceedings leading to the
present request, in the light of the considerations in question.
19. In the Advisory Opinion of 1973, the Court pointed out that the terms in
Article 11 of the Statute of the Administrative Tribunal could not [p 333]
have had the effect of changing the nature of the Court's task under its own
Statute, the character of its functions or its manner of discharging them.
The Court therefore had a duty to ascertain whether the procedure in which
it was called upon to play an essential part was truly compatible with its
task, its functions and the ways they are to be discharged. That meant that
it had to satisfy itself that this system enabling Administrative Tribunal
judgements to be reviewed by the indirect means of an advisory opinion was
compatible with the provisions of the United Nations Charter and the Statute
of the Court, and with the requirements of the judicial process. As the
necessity for the Court to make this assessment does not depend on whether
it was on the application of a staff member, the Secretary-General or a
member State that the Committee decided to request an advisory opinion, the
Court may for present purposes confine itself to reiterating its previously
adopted position.
20. In considering whether the review procedure was compatible with the
Charter, more especially Article 96, the Court first examined certain doubts
that had been expressed as to the legality of employing its advisory
function in connection with the review of Administrative Tribunal
judgements. It found that there was no reason for it to depart from the
position it had adopted in agreeing to give advisory opinions on the Effect
of Awards of Compensation Made by the United Nations Administrative Tribunal
(I. C.J. Reports 1954, p. 47), and on Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco (I.C.J. Reports
1956, p. 77), even though the questions laid before it in those cases had
concerned the rights of private individuals. In this respect the Court
confirms its earlier position that "The mere fact that it is not the rights
of States which are in issue in the proceedings cannot suffice to deprive
the Court of a competence expressly conferred on it by its Statute" (I.
C.J. Reports 1973, p. 172, para. 14). The fact that a request for an
advisory opinion derives, as it does in the present case, from the
initiative of a member State and not from an application by a staff member,
as in the Advisory Opinion of 1973, does not raise any additional
considerations such as to modify the Court's reasoning as to the
compatibility with the Charter of its exercising advisory jurisdiction in
such cases. The considerations contemplated by the Court in 1973 as calling
for close examination in the event of a request from the Committee made on
the application of a member State, were not broached in the context of the
question of the Court's competence to give the opinion requested. They
relate to the question whether this feature of the procedure established by
Article 11 is of such a character as should lead the Court, although
competent, to decline to answer the request (I.C.J. Reports 1973, p. 175,
para. 24, and p. 178, para. 31), and will be considered below.
21. It is however a precondition of the Court's competence that the advisory
opinion be requested by an organ duly authorized to seek it under the
Charter, that it be requested on a legal question, and that, except in the
case of the General Assembly or the Security Council, that question should
[p 334] be one arising within the scope of the activities of the requesting
organ. Certain doubts had been expressed in that regard also, but the Court,
in its 1973 Advisory Opinion, found that the questions submitted to the
Court were legal questions arising within the scope of the Committee's own
activities, and concluded that the Committee on Applications for Review of
Administrative Tribunal Judgements was indeed
"an organ of the United Nations, duly constituted under Articles 7 and 22 of
the Charter, and duly authorized under Article 96, paragraph 2, of the
Charter to request advisory opinions of the Court for the purpose of Article
11 of the Statute of the United Nations Administrative Tribunal".
Accordingly the Court declared itself competent under Article 65 of its
Statute (I.C.J. Reports 1973, p. 175, para. 23). The special features of the
proceedings leading up to the present request for advisory opinion afford
the Court no grounds for departing from its previous position on the point
under consideration.
*
22. After finding that it was competent to give the advisory opinion
requested, the Court in its 1973 Opinion recalled the discretionary nature
of the power it might thus exercise. It then considered whether, having
regard to the requirements of its judicial character, to which it must
remain faithful even in the exercise of its advisory function, certain
aspects of the procedure laid down in Article 11 of the Statute of the
Administrative Tribunal should not lead it to decline to give an advisory
opinion (I.C.J. Reports 1973, p. 75, para. 24). In the case at present
before it, the Court must undertake the same examination.
23. Having considered certain aspects of the review procedure which were
relevant to its response to the Committee's request, the Court, in the 1973
Advisory Opinion, reached certain conclusions. It noted that the Committee
was a "political organ", vested with functions that were "normally
discharged by a legal body" and were to be regarded as "quasi-judicial" in
character. But as the Court explained
"there is no necessary incompatibility between the exercise of these
functions by a political body and the requirements of the judicial
process... the compatibility or otherwise of any given system of review with
the requirements of the judicial process depends on the circumstances and
conditions of each particular system" (I.C.J. Reports 1973, p. 176, para.
25).
The Court considers that the findings which it thus expressed in its earlier
Advisory Opinion remain wholly relevant to the determination of its proper
response to the request now before it. It regards it as a highly important
principle that the requirements of the judicial process should be observed
not only during the two sets of judicial proceedings (one before [p335] the
Administrative Tribunal, the other before the Court) but also during the
operation of the political organ with quasi-judicial functions which
furnishes what the Court in its earlier Advisory Opinion called "a potential
link" between them. It is essential for the Court's decision as to what
response it will make to the request for advisory opinion that the
Committee's part in the process should be tested against the requirements
of the judicial process. As the satisfaction of those requirements depends
on the circumstances and conditions of the review system, and of the
particular case in question, the Court must appraise, inter alia, the
circumstances and conditions surrounding the fact that the Committee's part
in the process in the present case was originally set in motion by an
application from a member State.
24. In that connection, the Court, in the present proceedings, is called
upon to ask itself whether the part played by a member State in submitting
an application for review is not tantamount to intervention in the review
process by an entity which was not a party to the original proceedings. It
is contended in the Written Statement of Mr. Mortished that the procedure
"allowing a third party to raise objections to a judgement in which it has
no legal right or interest and to seek a review of that judgement is
contrary to fundamental principles of the judicial process".
In the first place, the Court observes that although a member State of the
United Nations be not a party to a judgment rendered by the Administrative
Tribunal in a dispute between a staff member and the Organization, it may
well have a legal interest in giving rise to a review of the Judgement. This
is certainly so, where, as in the present case, the Judgement in question is
challenged on the ground that an error has been committed on a question of
law relating to the provisions of the Charter, that is to say of a treaty to
which this State is a party. Secondly, the Court notes that the respective
roles of a member State which submits an application to the Committee and of
the Committee itself are precisely defined by the Statute of the
Administrative Tribunal. Admittedly, it is the member State which, by
submitting its application to the Committee, gives rise to the Committee's
discussion of that application. Nevertheless, once the Committee has decided
that there is a substantial basis for the application, the request for
advisory opinion comes from the Committee and not from the member State. The
origin of the application which the Committee has to consider, be it the
initiative of a member State, of the Secretary-General or of a staff member
party to the judgement in question, does not affect the formal origin of the
request submitted to the Court: it is always from the Committee that this
request emanates. Besides, if that were not so, as neither a member State
nor the Secretary-General nor a staff member is authorized by the Charter to
request an advisory opinion of the Court, their request would not be
admissible. The Court was in no doubt in 1973 that the request for an
advisory opinion then before it emanated from the Com-[p 336] mittee even
though the Committee's decision had been taken on the application of a staff
member. It does not consider, in the present case either, that the request
before it emanates from a member State. Thus it does not consider that this
request constitutes an intervention, at review level, of a member State and
hence of a third person in relation to the original proceedings.
25. The Court has also to take a position on two points relating to the
scope of the advisory opinion it is requested to give. On the one hand, the
view has been held that the fact that the Court's advisory opinion is, by
virtue of Article 11, paragraph 3, of the Statute of the Administrative
Tribunal, to have a conclusive effect with respect to the matters in
litigation affords a ground for objecting to the exercise of the Court's
advisory jurisdiction. The Court, however, in its 1973 Advisory Opinion,
after recalling the position it took on a similar contention based on
Article XII of the Statute of the ILO Administrative Tribunal, in its
Advisory Opinion on Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco, found that
"the special effect to be attributed to the Court's opinion by Article 11 of
the Statute of the United Nations Administrative Tribunal furnishes no
reason for refusing to comply with the request for an opinion in the present
instance" (I.C.J. Reports 1973, p. 183, para. 39).
As the origin of the present advisory proceedings is irrelevant to
appreciation of the point under consideration, the Court confirms the
position it adopted in the matter in the Advisory Opinions of 1956 and 1973.
26. On the other hand, in the present proceedings the Government of the
United States, in its written statement, has put forward another point
concerning the scope of the advisory opinion sought of the Court. This point
is not connected with the origin of the present request for advisory
opinion. However, as it was not raised during the advisory proceedings in
1973, it will be as well for the Court to consider it here. Warning the
Court of the consequences of not complying with the request for an opinion,
the Government of the United States made the following observation:
"The Assembly appears to have decided that the United Nations and the
General Assembly will not be bound by an adverse Administrative Tribunal
judgement with respect to which substantial legal doubt exists [that is to
say, if objection has been taken to the judgement, and the Committee has
found that there is a substantial basis for the objection] unless the Court
sustains the Administrative Tribunal on the law of the matter."
The United States concluded that if the Court declined to give an opinion,
that would "put in question the status of Judgement No. 273 of the
Administrative Tribunal", with manifest implications for the Court's
discretion to give or to refuse the opinion requested. The Court does not
intend to pronounce on the intentions imputable to the General Assembly[p
337] in regard to this aspect of the review procedure. Nevertheless, the
adoption of that procedure cannot have had the effect of amending the
provisions of the Charter or of the Statute of the Court whereby the Court's
exercise of its advisory jurisdiction remains discretionary. The Court would
repeat what it stated in 1956 as to the binding force attributed by Article
XII of the Statute of the ILO Administrative Tribunal to the advisory
opinion requested, that the provision in question "in no wise affects the
way in which the Court functions ... Nor does it affect the reasoning by
which the Court forms its Opinion or the content of the Opinion itself"
(Judgments of the Administrative Tribunal of the ILO upon Complaints Made
against Unesco, I. C.J. Reports 1956, p. 84). The Court therefore considers
that even if its giving of an advisory opinion were legally indispensable
for a judgement of the Administrative Tribunal to become final - a point
which it does not have to settle in relation to the present request — this
consideration should not prevent it from maintaining unimpaired the
discretionary character of its exercise of advisory jurisdiction.
27. An objection to the giving of an advisory opinion by the Court has been
based by Mr. Mortished on the contradiction which he finds between the
application of the Government of the United States and certain articles of
the Charter concerning the Secretary-General and the Secre-tariat. He
contends that the initiative taken by a member State to seise the Committee
"impinges upon the authority of the Secretary-General under Article 97 of
the United Nations Charter as Chief Administrative Officer of the
Organization, and conflicts with Article 100 of the Charter regarding the
'exclusively international character' of the Secretariat".
He has in particular maintained that the procedure contemplated by Article
11 of the Statute of the Administrative Tribunal "allows any member State to
force the Secretary-General to refrain from accepting and implementing an
otherwise final and binding judgement". The Court recognizes that an
application addressed by a member State to the Committee, when the
Secretary-General has not taken any step of this kind, will, in a case in
which the Committee finds that it should ask for an advisory opinion of the
Court, lead to delay in the judgement of the Tribunal becoming final. But
this effect is not produced by the application addressed by the member State
to the Committee, which the Committee can perfectly well reject. The effect
in question must be attributed to the decision of the Committee to seek an
advisory opinion from the Court. This is however just as much the effect of
the action of the Committee when it is seised by a staff member as when it
is seised by a member State. When a member of the Secretariat, dissatisfied
with the judgement given by the Administrative Tribunal, endeavours to set
in train a request by the Committee for an advisory opinion, he also obliges
the Secretary-General, who was satisfied with the judgement of the Tribunal
and was preparing to implement it, to refrain from doing so until the
judgement has been [p 338] confirmed or modified. This is no more than the
normal effect of the operation of a review procedure. To say that it
constitutes an encroachment on the authority of the Secretary-General, and
a violation of Article 100 of the Charter, amounts to denying that
judgements of the Administrative Tribunal which satisfy the
Secretary-General may be subjected to a review procedure. The Court cannot
therefore accept Mr. Mortished's views in this respect.
28. For the purposes of the present proceedings the Court does not have to
analyse in detail the question of the powers of representing the United
Nations, which presents aspects which are complex or obscure. It is
sufficient for it to find that the competence exercised by the Committee in
the context of Article 11 of the Statute of the Administrative Tribunal does
not contradict the status of the Secretary-General as "the chief
administrative officer of the Organization" (Art. 97 of the Charter), nor to
infringe the "exclusively international character of [his] responsibilities"
(Art. 100 of the Charter). Finally, the Court can find no justification for
Mr. Mortished's further claim that the staff member in whose favour the
judgement was given may, in challenging the views of the member State which
disputes the judgement, be jeopardized in the performance of his duties as
an international official, contrary to paragraph 1 of Article 100. The fact
that a staff member disputes the legal views of a member State on
proceedings to which the staff member is a party no more prevents him from
respecting the duties resulting from his international status under Article
100, than his opposition to the contentions of the Secretary-General on the
subject-matter of the proceedings involves him in a breach of the discipline
to be observed by a member of the Secretariat with regard to its chief
administrative officer.
29. The Court now comes to the principle which, in its 1973 Advisory
Opinion, it regarded as a requirement of the judicial process : the
principle of equality of the parties. In that Opinion the Court emphasized
various applications of the principle; it referred to it first with regard
to the de-cision by the Committee "after an examination of the opposing
views of the interested parties" (I.C.J. Reports 1973, p. 176, para. 26). It
also referred to it in connection with the interpretation by the Committee
of the requirement laid down in Article 11 of the Statute of the
Administrative Tribunal that there should be "a substantial basis for the
application" brought before the Committee. On this point, it noted that it
would be incompatible with the principles governing the judicial process if
the Committee were not to adopt a uniform interpretation of this requirement
whether or not the applicant was a staff member (ibid, p. 177, para. 29). It
was also concerned as to the inherent inequality resulting from the Court's
Statute between the staff member, on the one hand, and the
Secretary-General, on the other. Observing that the difficulty arose from
the terms of Article 66 of the Court's Statute, which makes provision for
the submission of written or oral statements only by States and
international organizations, the Court noted that Article 11 of the Statute
of the Administrative Tribunal provides that the staff member is entitled to
have his views[p 339] transmitted to the Court, with the implication that
this is to be without any control being exercised over the contents by the
Secretary-General. In this way, the equality of a staff member before the
Court is "a matter of right guaranteed by the Statute of the Administrative
Tribunal" (ibid, p. 180, para. 35). Thus the Court, which, in its 1956
Advisory Opinion, had considered that "any seeming or nominal absence of
equality", inherent in Article 66 of its Statute, should not prevent it from
giving effect to a request for advisory opinion, clearly took the view that
what was essential was that actual equality should be ensured by practical
measures. In giving effect to the present request for advisory opinion, the
Court must attribute great importance, as it did in its response to the
request mentioned above, to the question whether actual equality is ensured
despite a seeming or nominal absence of equality.
30. In the present case, that is to say in advisory proceedings resulting
from the application to the Committee of a member State, the problem of the
implementation of the principle of equality does not give rise to any
particular difficulty as regards the proceedings before the Court itself.
The views of the staff member concerned have been transmitted to the Court
in accordance with Article 11, paragraph 2, of the Statute of the
Administrative Tribunal. As the Court observed in its 1973 Advisory
Opinion:
"The Court is, therefore, only concerned to ensure that the interested
parties shall have a fair and equal opportunity to present their views to
the Court respecting the questions on which its opinion is requested and
that the Court shall have adequate information to enable it to administer
justice in giving its opinion." (I.C.J. Reports 1973, p. 182, para. 38.)
As in that case, the Court "is satisfied that these requirements have been
met in the present proceedings" (ibid.). Similarly, the decision, taken in
the present case as in 1973, to do without oral proceedings, while for the
Court it amounts to depriving itself of a very useful procedure, appears to
be a sacrifice which is justified by concern thereby to ensure actual
equality. This is however on the basis that the task of the Court in
relation to the judgement of the Tribunal is not fundamentally different
from the task it performed in the 1973 Opinion; this is a point to which the
Court will have to return (paragraph 61 below).
31. But the problem is not merely that of equality before the Court. As has
been observed above, comparison of the review procedure with the
requirements governing the judicial process, and thus in particular with the
principle of equality of the parties, must also be made with regard to that
stage of the review procedure which involves the intervention of the
Committee. From this point of view, the Court should note a fundamental
aspect of the review procedure which is not linked to the special
circumstances of the present case, but which has been particularly
highlighted by it: the fact that the Committee is no more than an organ of
the party which was unsuccessful before the Tribunal, that is to say the
United Nations. Consequently, in the review procedure, one of the parties —
the United [p 340] Nations — has the right to decide the fate of the
application for review made by the other party, the staff member, through
the will of a political organ, even if such organ has to some extent an
"independent character" (I.C.J. Reports 1973, p. 173, para. 18). This
fundamental inequality entails a particularly careful examination of the
rules governing the composition and functioning of the Committee.
32. That Committee is composed of the member States the representatives of
which have served on the General Committee of the most recent regular
session of the General Assembly. One of those States may be the State which
applies to the Committee to request an advisory opinion of the Court. In
such a case, the government in question can itself present its application,
take an active part in the discussion thereof, and even take part in the
vote at the close of the discussion. Since neither such participation in
the discussion nor voting are forbidden by the Statute of the Administrative
Tribunal, or by the rules of procedure of the Committee, it is certain that
there is here a cause of inequality between the parties concerned in the
review procedure, which results from the nature of the specialized organ
created by the General Assembly, and from the rules governing its
functioning. Since the Court, maintaining the approach it adopted on this
point when it gave its 1973 Opinion, proposes to assess whether inequality
exists at both the theoretical and the practical level, it can conclude at
once that on the theoretical level inequality exists. To ascertain whether
it also exists on the practical level, the Court must examine what the
Committee actually did when it was seised of the application from the United
States Government concerning Judgement No. 273 of the Administrative
Tribunal. At the same time, the Court will endeavour to establish whether
the Committee duly respected the elementary principle governing the
judicial process, that an organ which intervenes in a procedure which,
taken as a whole, is judicial in nature, must observe the rules governing
its composition and its functioning.
**
33. Before turning to an examination of the proceedings of the Committee,
the Court should however first deal with a point relating to the composition
of the United Nations Administrative Tribunal for its Judgement No. 273,
since it might be suggested that this was irregular, and that if the
irregularity were found to be such as to vitiate the decision of the
Tribunal, further examination of the question put to the Court would be
unnecessary. The Judgement begins as follows:
"The Administrative Tribunal of the United Nations,
Composed of Madame Paul Bastid, President; Mr. Endre Ustor, Vice-President ;
Mr. Francisco A. Forteza, Vice-President ; Mr. Herbert Reis, alternate
member".
The verbatim record of the sitting of the Tribunal in the case records the
[p 341] presence of these four members. The Judgement is signed by the
President and the two Vice-Presidents of the Tribunal; there follows the
statement "Not being in agreement with the judgement, I set forth my
dissenting opinion below", which is signed by the alternate member, and his
dissenting opinion follows.
34. While under Article 3, paragraph 1, of its Statute, the Tribunal is
"composed of seven members, no two of whom may be nationals of the same
State", that Article then stipulates as follows: "Only three shall sit in
any particular case." The Tribunal is empowered by Article 6 of its Statute
to establish its own Rules, and by Article 6, paragraph 1, of those Rules,
the President is authorized to designate the three members of the Tribunal
who "shall constitute the Tribunal for the purpose of sitting in each
particular case or group of cases". This paragraph further provides,
however, that the President "may, in addition, designate one or more
members of the Tribunal to serve as alternates". It is obvious that, in the
case before it, the President of the Tribunal exercised her power under this
article but nowhere in the Judgement is there a statement as to the
circumstances or purposes dictating that an alternate member should be
appointed. The silence of the Tribunal's Judgement on the issue leads to
speculation as to whether an alternate member is expected to be designated
by the President normally in the absence of one of the regular three members
or when such alternate member possesses exceptional expertise or
qualifications not to be found in the three ordinary members of the
Tribunal. It is thus a question why it was considered proper for the
alternate member to be allowed to sit with the Tribunal when all the three
regular members were available, and did sit; the participation of the
alternate member in the Judgement would seem to require an explanation. It
should also be recalled that a dissenting opinion was appended by him to the
Judgement of the Tribunal.
35. Article 6 of the Rules of the Tribunal gives the President a
discretion, which must however be exercised in harmony with Article 3 of
the Statute of the Tribunal quoted above. The published Judgements of the
Tribunal show that it has in the past sat on many occasions with more than
three members present, without any explanation. So far as the Court is aware
no objection has been taken in the past to this practice. The case
concerning Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal in 1954 sprang from 11 judgements of the Tribunal,
the texts of which were before the Court, in each of which the Tribunal was
recorded to be composed of four persons. In that case the Court however
observed that in none of the "reports or relevant records" before it was
there to be found "any suggestion indicating that the Tribunal, when
rendering its awards in those 11 cases, was not legally constituted
according to the provisions of Article 3 of its Statute" (I. C.J. Reports
1954, p. 50). At all events the Court has not been asked to consider whether
the Tribunal might have "committed a fundamental error in procedure which
has occasioned a failure of justice" as contemplated by Article 11,
paragraph 1, of the Tribunal's Statute, nor does the matter appear on the
face of [p 342] it to disclose any failure of justice. Accordingly, further
consideration of the point does not seem to be called for.
*
36. The Court now turns to the proceedings of the Committee. The material
available to the Court concerning those proceedings includes not only the
Report of the Committee (A/AC.86(XX)/25) but also transcripts of a
tape-recording of its meetings (A/AC.86(XX)/PV.l and 2), supplied pursuant
to a decision of the Committee adopted in response to a request to that
effect by counsel for Mr. Mortished (paragraph 14 above). It is however to
be regretted that the Committee does not appear to have kept an official
list of those present and names of voters and absentees at the time of each
decision.
37. In the present case the records disclose a number of notable
irregularities attending the proceedings of the Committee at its 20th
session, and these must be considered in the light of the texts governing
the composition and activity of the Committee. Under Article 11, paragraph
4, of the Statute of the Administrative Tribunal, the Committee on
Applications for Review of Administrative Tribunal Judgements is empowered
to establish its own Rules. On 16 October 1956 the Committee adopted
Provisional Rules of Procedure (amended on 25 October 1956, 21 January 1957
and 11 December 1974), which provide in Article I that "The proceedings of
the Committee shall be governed by the rules of procedure of the General
Assembly applicable to committees" (A/AC.86/ 2/Rev.2).
38. One of the most important irregularities in the procedure adopted by the
Committee concerns its composition at its 20th session, when it took the
decision to request the present advisory opinion. Article 11, paragraph 4,
of the Statute of the United Nations Administrative Tribunal requires that
the Committee be "composed of the member States the representatives of which
have served on the General Committee of the most recent regular session of
the General Assembly". One of the States in question was Sierra Leone, since
it participated in the General Committee through its representative, who was
Chairman of the Sixth Committee at the relevant time. As he was, however,
away from United Nations Headquarters on official business during the 20th
session of the Committee, he designated the representative of Canada, who
was a Vice-Chairman of the Sixth Committee, to act in his place, allegedly
"under Rule 39 of the Rules of Procedure of the General Assembly". This
replacement was irregular in the case of the Committee on Applications for
Review of Administrative Tribunal Judgements, since it is clear that Canada
was not one of the States Members composing the General Committee. It is
true that the Committee on Applications for Review, at the outset of the
meeting, accepted the Canadian representative by taking the decision that
"Canada, rather than Sierra Leone, should serve as a member of the Committee
at this session" [p 343] (A/AC.86(XX)/PV.l, p. 6); but this decision itself
could not be regarded as regular since the Committee has no power to
derogate from Article 11 of the Statute of the United Nations Administrative
Tribunal. The Sierra Leone chairman of the Sixth Committee could, and indeed
should, have nominated another member of the Sierra Leone delegation to sit
on the Committee on Applications for Review, but it was unquestionably
irregular for him to have nominated the Canadian, as Vice-Chairman of the
Sixth Committee, to sit on the Committee on Applications for Review, and for
this substitution to have been adopted by the Committee itself. The
irregularity was compounded by the election of the Canadian representative
as Chairman of the Committee, even though the election as such complied with
Rule 103 of the Rules of Procedure of the General Assembly. Curiously
enough the issue of the improper composition of the Committee was not
raised either by the United States Government or by the French Government,
or even by counsel for Mr. Mortished, throughout their respective Written
Statements. And yet the matter is fundamental to the whole question of the
present reference to this Court.
39. Further irregularities relate to the Application submitted to the
Committee by the United States Government. As Mr. Mortished's counsel's
letter to the Secretary of the Committee (A/AC.86/R.100, p. 2) indicates,
the United States' application was addressed to the Acting Legal Counsel
whereas it should have been addressed "to the official designated by the
Secretary-General to serve as Secretary of the Committee" under Article II,
paragraph 1, of the Committee's Provisional Rules of Procedure. This
irregularity is admittedly not of great importance, but the fact that the
Committee nevertheless accepted the Application without comment is an
illustration of the lack of rigour with which the Committee conducted the
proceedings in the present case. The application in question reads as
follows:
"The United States respectfully requests the Committee on Applications for
Review of Administrative Tribunal Judgements to request an advisory opinion
of the International Court of Justice on the matter of Judgement No. 273 of
the Administrative Tribunal.
Judgement No. 273 raises a question of law relating to the provisions of
the Charter of a constitutional dimension within the ambit of article 11 of
the statute of the Administrative Tribunal which is of sufficient
seriousness and magnitude to merit seeking the advice of the International
Court of Justice.
The General Assembly is expressly charged, pursuant to Article 101 of the
United Nations Charter, with establishing regulations concerning the staff.
Resolution 34/165 constitutes the making of such regulations. It states in
relevant part:
"Decides that effective 1 January 1980 no staff member shall be entitled to
any part of the repatriation grant unless evidence [p 344] of relocation
away from the country of the last duty station is provided".
It is thus abundantly clear from the face of the resolution as well as the
legislative history that the General Assembly intended the resolution to
terminate the administrative practice of payments of repatriation allowances
to persons who do not relocate upon retirement. The Secretary-General acted
in strict compliance with this resolution, as he was bound to do, when he
issued administrative instruction ST/ AI/269. In invalidating these actions
of the Secretary-General as applied to Mr. Mortished, the Administrative
Tribunal acted to deny the full effect of decisions of the General Assembly
which were neither arbitrary nor capricious.
It is not the contention of the United States that there are no
circumstances in which the Administrative Tribunal could reject the
application of rules made by the General Assembly and no rights of employees
that the Administrative Tribunal may seek to preserve. These issues are not
raised by the instant case. The issue that is raised is whether, in light of
all the circumstances of the case, the Administrative Tribunal gave due
weight to the actions of the General Assembly concerning repatriation grants
when it found that Mr. Mortished should be given a repatriation allowance
even though he did not depart or express an intention to relocate away from
the country of his last duty station.
In light of the constitutional dimensions of these issues, including the
relevance of Article 101 of the Charter and the authority of the General
Assembly thereunder, it is believed that the matter calls for an advisory
opinion from the International Court of Justice. It is consequently our view
that the Committee on Applications for Review of Administrative Tribunal
Judgements should ask the Court the following question:
'Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station ?'"
40. Article II, paragraph 3, of the Committee's Provisional Rules of
Procedure provides that:
"The application shall contain the following information in the order
specified:
…………………………………………………………………………………..
[p 345]
(c) A statement setting forth in detail the grounds of the application under
Article 11, paragraph 1, of the Statute of the Administrative Tribunal and
the supporting argument ..."
It is evident that the application of the United States did not comply with
this requirement. Article II, paragraph 3, of the Committee's Provisional
Rules of Procedure does not impose a sanction for its non-observance, and it
is to be noted that in the course of the discussion two of the four grounds
specified in Article 11 of the Tribunal's Statute were identified as
intended by the application, and voted on (paragraph 15 above). In this
respect it would seem that the Committee did not, on this particular
occasion, follow its "traditional" procedure, which the Chairman of the
Committee at this session stated to be that the Committee normally takes a
decision on four questions corresponding to the four grounds listed in
Article 11, paragraph 1, of the Statute of the Tribunal. If this assertion
of the Chairman of the Committee is to be taken as correct, the procedure
adopted at the 20th session was not that traditionally followed. So far as
the procedural irregularity in failing to state in the application the
grounds of objection was a breach of the Rules made by the Committee, the
Committee may thus be taken to have waived it. It must however be borne in
mind that Article 11, paragraph 1, of the Tribunal's Statute itself provides
for application to the Committee "If a member State, the Secretary-General
or the person in respect of whom a judgement has been rendered by the
Tribunal .. . objects to the judgement on the ground that" the Tribunal had
committed one of the four specified errors.
41. Thus, the United States application to the Committee was formally
defective in not complying fully with the requirements of Article 11,
paragraph 1, of the Statute of the Administrative Tribunal, and Article II,
paragraphs 1-3, of the Provisional Rules of Procedure of the Committee,
since the necessary details and supporting argument were not fully set out
therein. Furthermore, it is certain that Mr. Mortished, whose counsel argued
in his communication to the Committee that the application should be
rejected "on the grounds that it does not fall within the terms of Article
11 of the Statute of the Administrative Tribunal" (A/AC.86/ R.100, p. 9),
was unable to identify in advance and comment on the two specific grounds
eventually selected by the Committee. Mr. Mortished, in his written
statement laid before the Court, has challenged the Committee's acting on a
legally defective application, and has complained in this respect of a
breach of the principle audi alteram partem; the Court considers that such
action exacerbated on the practical level the inequality already established
on the theoretical level (paragraph 32 above) between the staff member and
the applicant State. The same must be said of a further action by the
Committee which, while not a procedural defect in the sense of being
contrary to a text governing the activity of the Committee, was
nevertheless, from the point of view of the Committee's quasi-judicial
functions, a startling irregularity. This was the refusal of the Committee
to grant the request of counsel for Mr. Mortished to be given
[p 346] the opportunity to participate in the proceedings of the Committee
at which the United States application was considered (A/AC.86/R. 100, p.3).
42. The United States was a member of the General Committee of the Assembly
and therefore of the Committee on Applications, and its representative not
only sat on the Committee during the proceedings, but also submitted
comments not elaborated in the original application, upon which alone, as
noted above, Mr. Mortished had had the opportunity to comment in writing.
When the representative of the United Kingdom on the Committee identified
specific grounds of objection to the Tribunal's judgement, namely that it
erred "on a question of law relating to the Charter" and that it had
committed "an excess of jurisdiction or competence" (A/AC.86(XX)/PV.l, pp.
22-23), the United States representative was able to endorse that approach
and elaborate upon it. It is needless to say that Mr. Mortished was deprived
by the Committee's decision not to admit the participation of his counsel of
the opportunity of knowing about these grounds, and of commenting upon them.
It must of course in fairness be recalled that the United States
representative did not participate in the vote on the admission of counsel
for Mr. Mortished. Nevertheless, Mr. Mortished was precluded from
participating in the discussion of the grounds of objection to the
Tribunal's Judgement, while the representative of the applicant State was
able to participate fully.
43. The United States Government has asserted that the Committee "is not a
judicial body taking action on the merits of the staff member's case", and
that its procedures "need not be judicial". This Court has however held in
its 1973 Advisory Opinion that the Committee is a body discharging
"quasi-judicial" functions, which operates between the Administrative
Tribunal and this Court by determining the legal question to be submitted by
it to the Court under Article 96, paragraph 2, of the Charter (I.C.J.
Reports 1973, pp. 174,176). The United States has also argued that, in any
case, Mr. Mortished had been allowed to submit his written comment on the
United States' application, and that his appearance before the Committee
was not necessary, since "There should be no requirement that the staff
member and the member State be in a position of equality in such a process".
It is, however, not true, as the United States contends, that "the staff
member's interest in an equal hearing is more compelling when it is his own
application which may be denied"; the procedure before the Committee is no
doubt at least quasi-judicial, since it constitutes a necessary link
between the findings of the Tribunal, which are judicial, and the review
findings of the Court, which are also judicial. Mr. Mortished's written
comments on the United States' application, although of interest to the
proceedings before the Committee, are not a valid substitute for his
observations on the grounds which emerged from the Committee's pro-ceedings.
It is not necessary to argue that the issues raised by the application were
not considered to be "uniquely within the competence of Mr. Mortished's
counsel on which he must be heard in order for justice in fact to be done"
(A/AC.86(XX)/PV.l, p. 16).[p 347]
44. Thus the admission by the Committee of the incomplete application by the
United States, and the subsequent refusal to allow Mr. Mortished's counsel
to participate in its work, when the United States representative on the
Committee sat throughout the proceedings and explained and argued the
grounds therefor, accentuated the irregularity of the proceedings. The
Committee was, in the view of the Court, under a duty in the circumstances
of this case to take such steps as were open to it to mitigate the basic
inequality on the theoretical level between the applicant State and the
staff member (paragraph 32 above). It might, for example, have been wise for
the United States representative to have refrained from participating in the
substantive votes, as he did on the procedural vote on the admission of Mr.
Mortished's counsel. Since the Committee decided not to hear the counsel,
the United States representative could, with propriety, have refrained from
participating in the discussion.
*
45. Despite the irregularities described in the preceding paragraphs, and
despite also the failure of the Committee to show the concern for equality
appropriate to a body discharging quasi-judicial functions, the Court
nevertheless feels called upon, for reasons now to be explained, to accept
the task of assisting the United Nations Organization. It is in accordance
with the Court's jurisprudence that, even though its power to give advisory
opinions is discretionary under Article 65 of its Statute, only "compelling
reasons" would justify refusal of such a request (cf. I. C.J. Reports 1973,
p. 183; I.C.J. Reports 1956, p. 86). Of course the irregularities which
feature throughout the proceedings in the present case could well be
regarded as constituting "compelling reasons" for a refusal by the Court to
entertain the request. The stability and efficiency of the international
organizations, of which the United Nations is the supreme exam-ple, are
however of such paramount importance to world order, that the Court should
not fail to assist a subsidiary body of the United Nations General Assembly
in putting its operation upon a firm and secure foundation. While it would
have been a compelling reason, making it inap-propriate for the Court to
entertain a request, that its judicial role would be endangered or
discredited, that is not so in the present case, and the Court thus does not
find that considerations of judicial restraint should prevent it from
rendering the advisory opinion requested. In the present case such a refusal
would leave in suspense a very serious allegation against the Administrative
Tribunal, that it had in effect challenged the authority of the General
Assembly. While there can be no question, as pointed out in paragraph 26
above, of any restriction on the Court's discretion, the Court will not
refuse "its participation in the activities of the Organization" (I.C.J.
Reports 1950, p. 71), so that the important legal principles involved may be
disposed of, whilst at the same time the Court must point out the [p 348]
various irregularities. It is not by appearing to shy away from the latter
that the Court can discharge its true judicial functions.
**
46. The Court will therefore now turn to the actual question on which its
opinion is requested, and will consider first whether, in the form in which
it has been submitted, it is one which the Court can properly answer. The
question laid before the Court for advisory opinion by the request
submitted by the decision of the Committee dated 13 July 1981 is as
follows:
"Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station?"
The Committee in fact adopted exactly the question formulated by the United
States in its application to the Committee; but as already noted, before
doing so it decided that there was a substantial basis for the application
on two of the specific grounds provided for in Article 11 of the Statute of
the Administrative Tribunal. Thus, in the first place, the question put to
the Court is, on the face of it, at once infelicitously expressed and vague;
and, in the second place, the records and report of the Committee cast
doubt on whether the question as framed really corresponds to the intentions
of the Committee in seising the Court. Its wording is infelicitous because
of the expression used in asking whether Judgement No. 273 is "warranted",
and whether it gives "immediate effect" to General Assembly resolution
34/165; it might have been differently and more happily phrased in language
which made it clear that the question was a legal question arising within
the scope of the activities of the Committee, in accordance with Article 96,
paragraph 2, of the United Nations Charter, and one within the powers of the
Committee to put under Article 11, paragraph 1, of the Statute of the
Tribunal. It appears not to correspond to the intentions of the Committee in
that it is worded in such a way that it does not disclose the two grounds of
objection, error in law and excess of jurisdiction, made to the Tribunal's
Judgement during the discussions of the Committee, and which clearly lie at
the basis of the question intended to be referred to the Court by the
Committee. This defect derives from the original omission of the United
States Government to set forth those two issues and supporting argument in
its application to the Committee, a defect which was later imperfectly
covered up by the votes of the Committee finding that there was a
substantial basis for the two grounds discussed.[p 349]
47. The Court has therefore to consider whether it should confine itself to
answering the question put; or, having examined the question, decline to
give an opinion in response to the request; or, in accordance with its
established jurisprudence, seek to bring out what it conceives to be the
real meaning of the Committee's request, and thereafter proceed to attempt
to answer rationally and effectively "the legal questions really in issue"
(I.C.J. Reports 1980, p. 89, para. 35). As will be explained below
(paragraph 55), it might be possible to give a reply to the question on its
own terms, but the reply would not appear to resolve the questions really in
issue, and it is also doubtful whether such a reply would be a proper
exercise of the Court's powers under Article 11 of the Tribunal's Statute.
The dilemma has been emphasized in the written statement of France: while
not going so far as to contend that the Court should not give effect to the
request, the French Government observed that the question put to the Court
"does not indicate on what grounds the Committee on Applications for Review
has decided that 'there is a substantial basis' for the application
presented by the United States of America" and that the Court may therefore
"encounter particular difficulties in exercising its jurisdiction". It
recalls that according to the established case-law of the Court in this
field, on the one hand "in giving its opinion the Court is, in principle,
bound by the terms of the questions formulated in the request" (I. C.J.
Reports 1973, p. 184, para. 41), while on the other hand, the Court's
jurisdiction under Article 11 of the Statute is limited to the four
specific grounds of objection there specified, and
"consequently, the Committee is authorized to request, and the Court to
give, an advisory opinion only on legal questions which may properly be
considered as falling within the terms of one or more of those four
'grounds'" (ibid).
48. The Court does not however conclude that in the present case it is
obliged to decline on these grounds to give an opinion. The Court pointed
out in its advisory opinion concerning the Interpretation of the Agreement
of 25 March 1951 between the WHO and Egypt that
"if [the Court] is to remain faithful to the requirements of its judicial
character in the exercise of its advisory jurisdiction, it must ascertain
what are the legal questions really in issue in questions formulated in a
request" (I.C.J. Reports 1980, p. 88, para. 35).
If those questions, once ascertained, prove to be questions "which may
properly be considered as falling within the terms of one or more of" the
grounds contemplated in Article 11 of the Statute of the Tribunal, it is
upon those questions that the Court can give its opinion. In its 1973
Opinion the Court indicated the primacy of Article 11 over the actual terms
of the request, when it pointed out that the scope of the question put to it
is [p 350]
"determined first, by Article 11 of the Statute of the Administrative
Tribunal, which specifies the grounds on which a judgement of the Tribunal
may be challenged through the medium of the advisory jurisdiction, and,
secondly, by the terms of the request to the Court" (I.C.J. Reports 1973, p.
183, para. 41).
In the present case, the Court therefore concludes that, in order to respond
to the request made by the Committee, it must determine whether each of the
objections, for which the Committee found there was a "substantial basis",
is well-founded, despite the fact that neither of those objections is, in
terms, stated in the request for the Court's opinion. As the Court observed
in its 1980 Advisory Opinion,
"the Court could not adequately discharge the obligation incumbent upon it
in the present case if, in replying to the request, it did not take into
consideration all the pertinent legal issues involved in the matter to which
the questions are addressed" (Interpretation of the Agreement of 25 March
1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 89, para. 35).
The Court therefore interprets the question put to it as requiring it to
determine whether, with respect to the matters mentioned in that question,
the Administrative Tribunal "erred on a question of law relating to the
provisions of the Charter of the United Nations", or "exceeded its
jurisdiction or competence". This is not the order in which these grounds
of objection appear in Article 11, paragraph 1, of the Tribunal's Statute,
but it is the order in which they were dealt with and voted upon in the
Committee. The Court will also deal with them in that order.
**
49. In order to examine the objections taken to the Judgement of the
Tribunal, it is clearly necessary for the Court first to set out the nature
of the claim submitted to the Tribunal, what in fact it decided, and the
reasons it gave for its decision. The facts of the case have already been
summarized in paragraphs 10 to 12 above. In his application to the Tribunal
Mr. Mortished requested it to adjudge and declare that the scheme and
detailed conditions and definitions established by the Secretary-General for
the payment of repatriation grants entitled him to the payment of such a
grant without the necessity for the production of evidence of relocation;
that his entitlement to the payment of a repatriation grant amounted to an
acquired right; that this entitlement could not be retroactively effaced by
subsequent amendments to the Staff Regulations and Rules; and
"D. In consequence of the foregoing to order the Secretary-General to pay to
him his entitlement to a repatriation grant in accordance with Annex IV to
the Staff Regulations."[p 351]
50. After setting out the principal contentions of the two parties the
Tribunal noted that "The refusal to pay the repatriation grant to the
Applicant was ... grounded in Administrative Instruction ST/AI/269,
established in pursuance of resolution 34/165" (para. I). The Tribunal then
recalled the basis of the legal obligations of the United Nations towards
the Applicant. The Tribunal observed that the legal status of staff members
is defined by a contract, entitled "letter of appointment", the provisions
of which are binding on the parties and can be amended only by mutual
agreement. The letter of appointment stipulates that the appointment is
offered "subject to the provisions of the Staff Regulations and Staff Rules,
together with such amendments as may from time to time be made to such Staff
Regulations and such Staff Rules". These documents of general application
"are made an integral part of the contract and the staff member accepts in
advance any amendments which may be made to them", new provisions resulting
from amendment becoming an integral part of the contract on the date of
their entry into force (para. II).
51. After outlining the competent authorities and procedures for the making
of Staff Regulations and Staff Rules (see paragraphs 67 ff. below), the
Tribunal noted that "the legal status of a staff member is governed by the
provisions of the Staff Rules immediately on their entry into force" (para.
III). Citing Staff Regulation 12.1 and Staff Rule 112.2 (a) (the texts of
which are set out in paragraph 12 above), the Tribunal stated that "the
Secretary-General is bound to respect the acquired rights of staff members
in the same way as the General Assembly" (para. IV). After noting the
provisions concerning the International Civil Service Commission, which
"form part of the regime governing the staff of the United Nations" (para.
V), the Tribunal turned to consideration of whether the Applicant had rights
on which he might rely as regards the repatriation grant. It noted the
personnel action form of 1958 (see paragraph 10 above) and found that the
statements therein "unquestionably constitute the explicit recognition by
the United Nations of [Mr. Mortished's] entitlement to the repatriation
grant, and validation for that purpose of more than nine years' service
already completed with ICAO" (para. VI), and that as a result of the formal
reference thus made at the time of appointment to the principle of the
relationship between the amount of the grant and length of service the
Applicant was in the position "that special obligations towards him were
assumed by the United Nations" (para. VI).
52. The Tribunal examined the genesis and application of the repatriation
grant system, and found it proved that the system of not making payment of
the grant dependent on evidence of repatriation, proposed in 1952 by the
Consultative Committee on Administrative Questions, "was in effect followed
to the benefit of staff members, even though it was not explicitly embodied
in any United Nations regulation" (para. VIII). The Tribunal found that, in
view of the particular situation of the Applicant, it was not required to
adjudicate in abstracto the question "whether a practice [p 352] followed
consistently for nearly 30 years could generate an acquired right within the
meaning of Staff Regulation 12.1" (ibid.). The Tribunal continued:
"The existence of the repatriation grant and the respective roles of the
General Assembly and the Secretary-General in defining its juridical rules
of application have their foundation in the Staff Regulations." (Para. IX.)
It quoted Staff Regulation 9.4 and Annex IV to the Regulations (set out in
paragraph 10 above), and noted the margin of discretion conferred on the
Secretary-General by these texts, and that Annex IV, in defining those
entitled to the grant, "does not refer to staff members actually repatriated
but to those for whom that obligation on the part of the Organization
exists" (ibid.). The Tribunal concluded:
"These two provisions of the Staff Regulations, which expressly acknowledge
that the repatriation grant scheme falls within the scope of the rule-making
authority of the Secretary-General, are still in force. No new provision
relating to that grant was added to the Staff Regulations by the General
Assembly at either its thirty-third or thirty-fourth sessions.
Thus the question whether the Applicant is entitled to rely on acquired
rights does not arise in respect of provisions of the Staff Regulations
which fall within the competence of the General Assembly, even though the
subject of the application is closely related to the decisions on the
repatriation grant taken by the General Assembly." (Ibid.)
53. Next the Tribunal examined the background to the adoption by the General
Assembly of resolution 33 /119, and the action subsequently taken by the
International Civil Service Commission (ICSC) and by the Secretary-General.
It noted that at no point in the discussion in the General Assembly was the
nature of the terms to be established by ICSC specified (para. XI), and that
the General Assembly set a fundamental objective and requested ICSC to
establish the terms of implementation, ICSC being required to take action in
accordance with the powers vested in it to ensure co-ordination within the
common system (para. XII). Referring to the texts of paragraphs (d) and (f)
of Staff Rule 109.5 as amended on 22 August 1979 (quoted in paragraph 11
above), the Tribunal observed that "In taking this measure, the
Secretary-General adopted the same position as the Executive Heads of the
specialized agencies" (para. XII), and that "this was the first time that a
provision of the Staff Rules acknowledged that entitlement to the
repatriation grant might exist without evidence of relocation being
provided" (para. XIII). The Tribunal drew the conclusion that "under the
terms of Staff Rule 109.5 (f)..., the Applicant retains his entitlement to
the amount of the grant without the need, as regards that period of service,
to produce evidence of relocation" (para. XIII), and [p 353] proceeded to
examine the question whether that entitlement "can have been effaced
retroactively by the Secretary-General's deletion of subparagraph (f) in
pursuance of resolution 34/165" (para. XIV). The Tribunal surveyed the
circumstances preceding the adoption of that resolution and noted that
"at no time did the General Assembly contemplate supplementing or amending
the provisions relating to the repatriation grant contained in the Staff
Regulations. Nor did the Assembly examine the text of the Staff Rules in
force since 1 July 1979, and it never claimed that there was any defect in
the provisions introduced on that date which dim-inished their validity. The
Assembly simply stated a principle of action which the Secretary-General
acted upon in establishing a new version of Staff Rule 109.5 which, from 1
January 1980, replaced the version previously in force on the basis of which
the Applicant could have obtained the repatriation grant." (Para. XIV.)
54. The Tribunal considered finally the question whether the Applicant could
rely on an acquired right, failure to recognize which would give rise to the
obligation to compensate for the injury sustained (para. XV). It referred to
its own previous jurisprudence on acquired rights of staff members, and
concluded that, in the case before it,
"the link established by the General Assembly and the Secretary-General
between the amount of the grant and length of service entitles the Applicant
to invoke an acquired right, notwithstanding the terms of Staff Rule 109.5
which came into force on 1 January 1980 with the deletion of subparagraph
(f) concerning the transitional system" (para. XV).
The decision of the Tribunal on Mr. Mortished's claim was accordingly as
follows:
"By making payment of the Applicant's repatriation grant conditional on the
production of evidence of relocation, the Respondent failed to recognize the
Applicant's acquired right, which he held by virtue of the transitional
system in force from 1 July to 31 December 1979 and set forth in Staff Rule
109.5 (f).
The stand taken by the Respondent has had the effect of depriving the
Applicant of payment of the repatriation grant. Recognizing that the
Applicant was entitled to receive that grant on the terms defined in Staff
Rule 109.5 (f), despite the fact that that rule was no longer in force on
the date of the Applicant's separation from the United Nations, the Tribunal
finds that the Applicant sustained injury as the result of a disregard of
Staff Regulation 12.1 and Staff Rule 112.2 (a). The Applicant is thus
entitled to compensation for that injury. The [p 354] injury should be
assessed at the amount of the repatriation grant of which payment was
refused." (Para. XVI.)
*
55. Having thus summarized the judgement of the Tribunal, the Court can now
turn to the question put to it. This, as already noted, is sparse and
elliptical, and seems to embody an assumption about the Tribunal's judgement
that is hardly sustainable. Even if it be related to the grounds of
objection stated in Article 11 of the Tribunal's Statute, so as to ask the
Court whether the Tribunal "erred on a question of law relating to the
provisions of the Charter of the United Nations" or "exceeded its
jurisdiction or competence" in
"determining that General Assembly resolution 34/165 of 17 December 1979
could not be given immediate effect in requiring, for the payment of
repatriation grants, evidence of relocation to a country other than the
country of the staff member's last duty station",
it seems that it might be a correct answer to reply simply that the Tribunal
did not so determine. For it is important not to confuse what Mr. Mortished
asked the Tribunal to decide and what it in fact did decide, which is
somewhat different. If the decision of the Tribunal, quoted above, is
compared with Mr. Mortished's claim, summarized in paragraph 49 above, it
will be apparent that the Tribunal did not find in the terms of what was
asked for in paragraph D of that statement of claim. It did not order the
Secretary-General to pay to Mr. Mortished "his entitlement to a
repatriation grant in accordance with Annex IV to the Staff Regulations".
What it did decide was that the Applicant had an acquired right to receive
the grant "on the terms defined in Staff Rule 109.5 (f) despite the fact
that that rule was no longer in force on the date of the Applicant's
separation from the United Nations"; and that he had accordingly sustained
injury for which compensation was due, the injury being assessed at the
amount of the grant of which payment had been refused. Thus the decision was
not that resolution 34/165 could not be given immediate effect but, on the
contrary, that the Applicant had sustained injury precisely by reason of its
having been given immediate effect by the Secretary-General in the new
version of the Staff Rules which omitted Rule 109.5 (f). The difference
between a decision that resolution 34/165 could not be given immediate
effect and a decision that, precisely because it had been given immediate
effect, the Applicant had sustained injury, is not unimportant. The
judgement of the Tribunal in no way seeks to call in question the legal
validity and effectiveness of either resolution 34/165 or the Staff Rules
made by the Secretary-General for its immediate implementation. It drew
what, in the Tribunal's view, were the necessary consequences of the fact
that the adoption and application of those measures had infringed what the
Tri-[p 355] bunal considered to have been an acquired right of the staff
member, which was therefore protected by Staff Regulation 12.1.
56. Thus this understanding of the actual question produces the above answer
which, important as it is, still leaves another question as it were secreted
between the lines of the question as originally formulated: namely, was the
decision of the Tribunal, in awarding Mr. Mortished a sum equivalent to the
grant, even if it did not seek to deny the immediate application of
resolution 34/165, nevertheless one that denied "the full effect of
decisions of the General Assembly" (paragraph 39 above), and so erred on a
question of law relating to the provisions of the United Nations Charter, or
amounted to an excess of jurisdiction or competence? This seems to be the
question which is the gravamen of the objection to the Tribunal's Judgement,
and the one which the Committee intended to raise. In order to answer it,
the Court must first consider the scope of the concept of error "on a
question of law relating to the provisions of the Charter of the United
Nations".
57. The ground of objection, that the United Nations Administrative Tribunal
"erred on a question of law relating to the provisions of the Charter of the
United Nations", does not appear in the corresponding article (Art. XII) of
the Statute of the ILO Administrative Tribunal, which was before the Court
in 1956; and it was not one of the grounds relied on in the Application for
Review of Judgement No. 158 of the United Nations Administrative Tribunal in
1973. Its meaning has, accordingly, not previously fallen to be examined by
the Court; however, in the second of the two cases just mentioned, the Court
indicated that this ground differed from those then under examination in
that the fact that the role of the Court in review proceedings is not to
retry the case
"does not mean that in an appropriate case, where the judgement has been
challenged on the ground of an error on a question of law relating to the
provisions of the Charter, the Court may not be called upon to review the
actual substance of the decision" (I. C.J. Reports 1973, p. 188, para. 48).
What then is the proper role of the Court when asked for an advisory opinion
in respect of this ground of objection? The answer to this question must
depend not only upon the terms of Article 11, but also upon several other
factors including, first of all, the Court's Statute, the case-law of the
Court, the general requirements for the exercise of the judicial function;
and, since Article 65, paragraph 2, of the Court's Statute provides that
"Questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required", upon the terms
of the particular question asked of the Court by the Committee.[p 356]
58. In another well-known passage in its 1973 Advisory Opinion, preceding
that quoted above, the Court declared that:
"the task of the Court is not to retry the case but to give its opinion on
the questions submitted to it concerning the objections lodged against the
Judgement. The Court is not therefore entitled to substitute its own
opinion for that of the Tribunal on the merits of the case adjudicated by
the Tribunal. Its role is to determine if the circumstances of the case,
whether they relate to merits or procedure, show that any objection made to
the Judgement on one of the grounds mentioned in Article 11 is well
founded." (I.C.J. Reports 1973, pp. 187-188, para. 47.)
That the Court's proper role is not to retry the case and to attempt to
substitute its own opinion on the merits for that of the Tribunal, is
apparent from the very fact that the question or questions on which the
Court is asked its opinion are, since they must conform to Article 11,
paragraph 1, of the Tribunal's Statute, different from the questions which
the Tribunal had to decide. As the Court then observed, they "arise not out
of the judgements of the Administrative Tribunal, but out of the objections
to those judgements raised before the Committee itself" (ibid., p. 174,
para. 21). There are, however, other reasons, some of them especially
compelling in the present case, why the Court should not attempt by an
advisory opinion to fill the role of a court of appeal and to retry the
issues on the merits of this case as they were presented to the Tribunal.
59. Foremost amongst those reasons must be the difficulties of using the
advisory jurisdiction of the Court for the task of trying a contentious
case, and especially one to which one of the parties is an individual. Some
of the difficulties may be mitigated by such devices as dispensing with oral
proceedings and enabling an individual to present written observations
through the intermediary of the Secretary-General; but although such
safeguards of elementary principles of judicial procedure such as the
equality of the parties and the need to hear both sides may be adequate
where the issue for the Court is limited in the way indicated in its 1973
Opinion, they would need most careful re-appraisal were the Court called
upon to function as an appeal court in respect of the contentious case
itself. Where, however, "the task of the Court is not to retry the case but
to reply to the questions put to it regarding the objections which have been
raised to the Judgement of the Administrative Tribunal" (I.C.J. Reports
1973, p. 182, para. 38), the position is different, and, as noted above, the
requirements of equality have been met, on that assumption, in the present
proceedings (paragraph 30 above).
60. Likewise, while the interposition, between the proceedings before the
Administrative Tribunal and the proceedings before the Court, of the
Committee, an essentially political body with discretion to determine
whether or not this Court shall be seised of the matter at all, is not
necessarily inappropriate for the purposes of seeking an advisory opinion,
[p 357] it would on the other hand be unacceptable if the advisory opinion
were to be assimilated to a decision on appeal. The finding of the Court in
its 1973 Advisory Opinion (quoted in paragraph 23 above) that there was "no
necessary incompatibility between the exercise of these functions by a
political body and the requirements of the judicial process" (I. C.J.
Reports 1973, p. 176, para. 25) was on the assumption that the proceedings
before the Court were not to retry, on appeal, the same issue as that tried
by the Administrative Tribunal. This difficulty is especially cogent if, as
in the present case, the Committee, in its own exercise of what is clearly a
quasi-judicial function, has excluded from its proceedings one who was a
party in the case before the Tribunal, whilst the applicant State was able
not only to speak and argue but also to vote on the question whether its own
objection to the Judgement of the Tribunal had a "substantial basis" or not.
The gravity of these aspects has already been made clear above (paragraphs
42-44).
61. The very according of a right, in Article 11 of the Statute of the
United Nations Administrative Tribunal, not only to the Secretary-General,
or the person in respect of whom a judgement has been rendered by the
Tribunal, but also to any member State of the United Nations, to bring
before the Committee an objection to a judgement of the Tribunal, suggests
of itself that the procedure before the Court was not intended to be part of
a procedure of appeal on the merits of the case. Such a right of
intervention by a third party is only explicable on the assumption that the
advisory opinion is to deal with a different question from that submitted to
the Tribunal, and a question in which the intervening member State may well
have a legitimate interest (see paragraph 24 above).
62. In short the Court in the present case has not been, and in fact could
not be, asked to make a comprehensive review of the merits in the case of
Mortished v. the Secretary-General of the United Nations, but only to give
its opinion on two particular grounds of objection to the Judgement in that
case. The articles of the Charter that are possibly relevant to the first
ground of objection, that of error "on a question of law relating to the
provisions of the Charter of the United Nations", are those of Chapter XV,
and in particular Article 101, paragraph 1, where it is provided: "The staff
shall be appointed by the Secretary-General under regulations established by
the General Assembly." It is clear, however, that the Court must first
consider whether it is only the possibility of an error in the application
or interpretation of those texts of the Charter itself which has to be
investigated. What is the scope of the enquiry to be conducted by the Court
in order that it may decide whether the Tribunal "has erred on a question of
law relating to the provisions of the Charter of the United Nations"?
63. This ground of objection was the subject of much discussion in the
Special Committee on Review of Administrative Tribunal Judgements set up in
1954 (resolution 888 (IX)), and also in the Fifth Committee of the General
Assembly. It is well known that the formulation of this clause was the
result of a compromise between those who wanted a review system dealing with
questions of law more generally, and those who favoured the [p 358] narrower
range of permissible objections that appears in the Statute of the
International Labour Organisation Administrative Tribunal (that is to say, a
challenge to a decision of the Tribunal confirming its jurisdiction, or an
alleged fundamental fault in the procedure followed which vitiated the
decision of the Tribunal). In the opinion of the Court only limited
assistance with regard to this question is to be found by consulting the
various stages of the legislative history of Article 11 and the gradual
evolution within the Special Committee of this compromise. For one thing,
the words error "on a question of law relating to the (French: concernant
les) provisions of the Charter of the United Nations" could hardly be
plainer; and for another, the limits of the Court's role are, as has already
been mentioned, determined not only by Article 11 but also by other
considerations such as the inherent limitations of the advisory procedure
and the imperative requirements of a judicial procedure in contentious
cases. It is rather in the light of these other considerations that any
doubts over the scope of Article 11 should be resolved.
64. In any event, the Court clearly could not decide whether a judgement
about the interpretation of Staff Regulations or Staff Rules has erred on a
question of law relating to the provisions of the Charter, without looking
at that judgement to see what the Tribunal did decide. While to that extent
the Court has therefore to examine the Tribunal's decision on the merits, it
is not the business of the Court, after making that examination, itself to
get involved in the question of the proper interpretation of the Staff
Regulations and Staff Rules, as such, further than is strictly necessary in
order to judge whether the interpretation adopted by the Tribunal is in
contradiction with the requirements of the provisions of the Charter of the
United Nations.
65. This conclusion, dictated by the considerations of principle noted
above, is also in accord with the actual words of the ground of objection
mentioned in Article 11 of the Tribunal's Statute which speaks, not of
"error of law" but of error "on a question of law relating to the provisions
of the Charter of the United Nations", and these latter words cannot be
other than words of qualification. It is true that the regulations and rules
applied by the Administrative Tribunal must derive their validity from the
provisions of the Charter. Indeed, all valid regulations and rules adopted
by a United Nations organ cannot be other than based on the provisions of
the Charter. It does not follow, however, that every question of the
interpretation or application of those regulations and rules is a question
of law relating to the provisions of the Charter. Nor indeed would the words
of Article 101 of the Charter ordinarily be of any assistance or pertinence
in the task of interpreting a rule or regulation. Accordingly, it would be
quite mistaken to suppose that, because the law applied by the Tribunal, or
indeed the law applied by any organ of the United Nations, derives its
ultimate validity from the Charter, the ground of Article 11 now under
examination means that an objection to any interpretation by the Tribunal of
staff rules and regulations is a matter for an advisory opinion of the
Court. Furthermore, if the words "error on a question of law relating to the
[p 359] provisions of the Charter" were to be interpreted to mean the same
as "error of law", the efforts in 1955 to reach a compromise solution would
have been ineffective.
66. But if the interpretation, in general, of Staff Regulations and Rules is
not the business of the Court, it is, as already noted, very much the
business of this Court to judge whether there is a contradiction between a
particular interpretation or application of Staff Regulations and Rules by
the Tribunal and any of the provisions of the Charter; and such an
examination appears to be the purpose of the particular question asked of
the Court in this present case. This question cannot be understood without
some reference to the history of the repatriation grant over the last 30
years, though it is not necessary to go into the whole of that history. It
was established by the General Assembly by resolution 470 (V) of 15
December 1950, which added, for the purpose, a new Regulation 35 and Annex
II to the Provisional Staff Regulations. In the Staff Regulations of 1952
these became Regulation 9.4 and Annex IV, quoted in paragraph 10 above. The
repatriation grant was substituted for an earlier "expatriation allowance",
and seems never in fact to have been a grant limited to those who were
repatriated to their country of origin, so that the title of the grant has
always been a misnomer. It was from its inception based not upon
repatriation but upon the United Nations' "obligation to repatriate", which
has since 1 January 1953 been defined in Rule 109.5 (a), as meaning an
obligation to return the staff member on separation at United Nations
expense to a place outside the country of his duty station. The amount of
the grant was from the outset made dependent on the number of years of
continuous service by the staff member away from his home country.
67. It is important, however, to appreciate how Staff Regulations and Rules
are made. The relations of the United Nations with its staff are governed
primarily by the Staff Regulations established by the General Assembly
according to Article 101, paragraph 1, of the Charter of the United Nations.
The successive editions of the Staff Regulations recite Article 101 at their
commencement, and go on to state as their function that:
"The Staff Regulations embody the fundamental conditions of service and the
basic rights, duties and obligations of the United Nations Secretariat. They
represent the broad principles of personnel policy for the staffing and
administration of the Secretariat. The Secretary-General, as the Chief
Administrative Officer, shall provide and enforce such staff rules
consistent with these principles as he considers necessary."
68. Accordingly, the Staff Regulations are themselves elaborated and applied
in the Staff Rules; and it is the Secretary-General who drafts the Staff
Rules, and in this he has necessarily a measure of discretion. This is
tempered by his duty to "report annually to the General Assembly such [p
360] Staff Rules and amendments thereto as he may make to implement the
Regulations" (Staff Regulation 12.2). The bringing into force of the Rules,
on a date fixed by the Secretary-General, is not subject to approval by the
General Assembly; and on entry into force they immediately govern the legal
status of staff members. The Rules, according to Staff Rule 112.2 (a)
(quoted in paragraph 12 above), may be amended by the Secretary-General in
a manner consistent with Staff Regulations. There is no doubt that the
General Assembly has the power itself to make detailed regulations, as for
example, in Annex IV of the Staff Regulations which sets out the rates of
repatriation grant. As the Court said in 1954:
"The General Assembly could at all times limit or control the powers of the
Secretary-General in staff matters, by virtue of the provisions of Article
101 [of the Charter]." (I.C.J. Reports 1954, p. 60.)
But in the pertinent General Assembly resolutions, 33/119 and 34/165, to be
examined below, it did not do so; it laid down a principle which was in the
usual way left to the Secretary-General to give effect to, first by an
administrative instruction, and eventually in a new version of the Staff
Rules. And where it is left to the Secretary-General to make rules there can
be no doubt that by making rules he speaks for and commits the United
Nations in its relations with staff members.
69. In the matter of the repatriation grant, as in some other staff matters
also, there is the further complication that entities other than the
Secretary-General have from time to time been concerned with the conditions
of service of staff members. The Consultative Committee on Administrative
Questions (CCAQ), a subsidiary of the Administrative Committee on
Co-ordination (ACQ, and particularly concerned with relations between the
United Nations and specialized agencies, in a report of 14 May 1952
(CO-ORDINATION/R.124) recommended, inter alia, that the repatriation grant
be paid on the basis of an obligation to repatriate, regardless of whether
the staff member was actually repatriated, but excluding those summarily
dismissed and those who had, or had voluntarily assumed, the nationality of
the country of the last duty station. This was to take account of the fact
that in the International Labour Organisation and the World Health
Organization, the Staff Regulations provided that the grant was to be
payable on separation to persons "serving at a duty station outside of the
home country". The same Committee, after a further study, reported on 6 May
1974 (CCAQ/SEC/325(PER)) that "CCAQ Secretariat doubts the feasibility of
attempting to make payment of the grant dependent on evidence of
repatriation".[p 361]
70. The other body involved has been the International Civil Service
Commission set up in 1974 (by General Assembly resolutions 3042 (XXVII) of
19 December 1972, and 3357 (XXIX) of 18 December 1974) "for the regulation
and co-ordination of the conditions of service of the United Nations common
system"; it was thus particularly concerned with an endeavour that staff
rules should, as far as maybe, form a system common to the United Nations
system and to some specialized agencies, and in respect of the repatriation
grant it had, therefore, to take account both of the United Nations
Secretariat's three decades of practice and of the position in the
specialized agencies and other international organizations which
participate in the United Nations common system.
71. The Tribunal, faced with Mr. Mortished's claim, had to take account not
only of resolution 34/165, and of Administrative Instruction ST/AI/269
(replaced by the amended Staff Rules of 15 July 1980), by which resolution
34/165 was put into effect, but also of the whole body of regulations and
rules relevant to the Applicant's claim. These regulations and rules
comprised in particular Staff Regulation 9.4 and Annex IV, quoted in
paragraph 10 above, and the following. In General Assembly resolution 33/119
of 19 December 1978, which dealt with a Report of the International Civil
Service Commission, the General Assembly decided that payment of the
repatriation grant was to be made conditional on the furnishing of evidence
of relocation, "subject to the terms to be established by the Commission".
On the basis of these terms the Secretary-General was to make the required
changes in the Staff Rules and report back at the 34th session "in
accordance with the provisions of regulation 12.2 of the Staff Regulations".
As noted above (paragraph 11), the Commission adopted a text to implement
resolution 33/119, and this was put into effect by the Secretary-General,
first by Administrative Instruction ST/AI/262 of 23 April 1979, and then by
the Staff Rules (ST/SGB/Staff Rules/ l/Rev.5) of 22 August 1979, Rule 109.5
of which dealt with the repatriation grant. Paragraph (d) of that Rule
accordingly provided that the payment of the grant was conditional on the
presentation of evidence of relocation. Paragraph (f) of that Rule, however,
saved the entitlement "Notwithstanding paragraph (d) above", of "Staff
Members already in service before 1 July 1979", who were thereby to "retain
the entitlement to repatriation grant" in respect of service already accrued
before that date, without the necessity of production of evidence of
relocation "with respect to such qualifying service". Paragraph (f) was in
conformity with the text prepared by the International Civil Service
Commission.
72. Next came General Assembly resolution 34/165 of 17 Decem-[p362] ber
1979, on the "Report of the International Civil Service Commission", which
was again for the most part concerned with receiving and approving the
annual report of the Commission. It also recalled resolution 33/119 in which
"it set down important objectives for maintaining and reinforcing the common
system and established guidelines for the future work of the Commission".
The rest of the resolution, in three parts, is to do with the work of the
Commission, and the only paragraph of direct interest to the present case is
the following:
"3. Decides that effective 1 January 1980 no staff member shall be entitled
to any part of the repatriation grant unless evidence of relocation away
from the country of the last duty station is provided."
The Secretary-General, accordingly, in order to put this decision into
effect, issued Administrative Instruction ST/AI/269 on 21 December 1979, and
thereafter revised the Staff Rules (15 July 1980), in Rule 109.5 of which
revised Rules, instead of the paragraph (f) of the 1979 Rule, there appeared
"(f) (Cancelled)".
73. The Tribunal in the case of Mr. Mortished had to apply, therefore, the
relevant General Assembly resolutions, the Staff Regulations established by
the General Assembly under Article 101, paragraph 1, of the Charter, and
also the Staff Rules by which they were implemented. It noted that the
General Assembly, in Staff Regulation 12.1, had affirmed the "fundamental
principle of respect for acquired rights" and that Staff Rule 112.2 (a)
provided for amendment of Staff Rules only in a manner consistent with the
Regulations (para. IV). It decided that Mr. Mortished had indeed an acquired
right, in the sense of Regulation 12.1; and that he had therefore suffered
injury by being, as a result of resolution 34/165 and the resulting 1979
Administrative Instruction (ST/AI/269) and the 1980 amendment of the Staff
Rules, deprived of his entitlement (para. XVI). Accordingly the effect of
resolution 34/165 and the amended Rules with its deletion of paragraph (f)
was not retroactive to destroy Mr. Mortished's "acquired right", having
regard to Regulation 12.1 which provided precisely against such retroactive
effect. The Tribunal's Judgement does not anywhere in fact suggest that
there could be an opposition between Article 12.1 of the Staff Regulations
and paragraph 3 of section II of resolution 34/165.
74. The Government of the United States in its written statement argues that
this decision takes an erroneous view of the law, and that even assuming
that Mr. Mortished had a right under paragraph (f) of the 1979 Rules, which
the United States contests, that right did not survive reso-lution 34/165
and the amended Rules, and that the only right Mr. Mortished enjoyed at the
date of separation was the right to a grant on his furnishing evidence of
relocation. There may be room for more than one [p 363] view on the question
what amounts to an acquired right; and in particular whether or not Mr.
Mortished had an acquired right, which was saved by the effect of Staff
Regulation 12.1, and Staff Rule 112.2 (a), either as a result of paragraph
(f) of Rule 109.5 of the 1979 Rules, or - a point noted but not decided by
the Tribunal — on the basis of "a practice followed consistently for nearly
30 years". But to enter upon that question would be precisely to retry the
case with a view to deciding whether to substitute the Court's view of the
merits of the case for that of the Tribunal. This, for the reasons explained
above, is not the business of this Court. It is not the business of this
Court to decide whether the Tribunal's Judgement involves an error in its
interpretation of the relevant instruments, unless it involves an error on a
question of law relating to the provisions of the United Nations Charter.
75. In the Court's view it is not possible to say that the Tribunal in its
Judgement "erred on a question of law relating to the provisions of the
Charter". The concept of an acquired right is, of course, neither defined
nor even mentioned in the Charter. Article 101 of the Charter does provide
that "The staff shall be appointed by the Secretary-General under
regulations established by the General Assembly". But it was precisely in
the Staff Regulations thus established by the General Assembly itself that
the Tribunal found, and so must apply, the general provision about acquired
rights and the non-retroactivity of supplementing or amending regulations in
regard to acquired rights. In fact Regulation 12.1 was presumably made
precisely in anticipation of, and to provide for, the kind of change in
conditions of service resulting from the Administrative Instruction and
amended Staff Rules which gave effect to resolution 34/165. The
interpretation of resolution 33/119 which the International Civil Service
Commission and the Secretary-General had made in introducing the
transitional paragraph (f) into the Staff Rules of 1979 acknowledged or
created a right for Mr. Mortished, and this, said the Tribunal, was
preserved by Staff Regulation 12.1. Thus the Tribunal saw itself not as in
any way challenging resolution 34/165 by means of a general notion of
acquired rights but simply as applying the existing Staff Regulations and
Rules.
76. Certainly the Tribunal must accept and apply the decisions of the
General Assembly made in accordance with Article 101 of the United Nations
Charter. Certainly there can be no question of the Tribunal possessing any
"powers of judicial review or appeal in respect of the decisions" taken by
the General Assembly, powers which the Court itself does not possess (I.
C.J. Reports 1971, p. 45, para. 89). Nor did the Tribunal suppose that it
had any such competence. It was faced, however, not only with resolution
34/165 and the 1980 Staff Rules made thereunder, but also with Staff
Regulation 12.1 also made no less by and with the authority of the General
Assembly. On the basis of its finding that Mr. Mortished had [p 364] an
acquired right, it had therefore to interpret and apply these two sets of
rules, both of which were applicable to Mr. Mortished's situation. The
question is not whether the Tribunal was right or wrong in the way it
performed this task in the case before it; the question — indeed, the only
matter on which the Court can pass — is whether the Tribunal erred on a
question of law relating to the provisions of the Charter of the United
Nations. This it clearly did not do when it attempted only to apply to Mr.
Mortished's case what it found to be the relevant Staff Regulations and
Rules made under the authority of the General Assembly.
**
77. In the proceedings of the Committee there was some discussion of a
second ground of objection to the Tribunal's Judgement, namely the
allegation that it had "exceeded its jurisdiction or competence", and on
this ground also there was found to be a "substantial basis" for the
application. It seems, however, from what was said in the Committee that
this ground was not put forward as a ground entirely independent of the
allegation of error of law relating to the provisions of the Charter. The
representative of the United States, which had made the application to the
Committee, explained at one point in the discussion that the ground of error
of law relating to the provisions of the Charter "had been put to the
Committee on the basis that it did not by any means exclude, but rather
subsumed, the other ground of exceeding jurisdiction or competence"
(A/AC.86(XX)/PV.2 at p. 46). It would seem to follow from this that this
second objection must by definition fall with the first. In fact this
suggested excess of jurisdiction seems to have been conceived of as little
more than another way of expressing the allegation that the Tribunal had
decided that General Assembly resolution 34/165 "could not be given
immediate effect", and that it was therefore attempting to exercise a
competence of judicial review over a General Assembly resolution: the matter
which has already been dealt with above.
78. However that may be, the Tribunal's competence is defined in Article 2
of its Statute, and the pertinent paragraph reads as follows:
"1. The Tribunal shall be competent to hear and pass judgement upon
applications alleging non-observance of contracts of employment of staff
members of the Secretariat of the United Nations or of the terms of
appointment of such staff members. The words 'con-tracts' and 'terms of
appointment' include all pertinent regulations and rules in force at the
time of alleged non-observance, including the staff pension regulations."[p
365]
Thus, it is clear that the Tribunal's jurisdiction included not only the
terms of Mr. Mortished's contract of employment and terms of appointment,
but also the meaning and effect of Staff Regulations and Staff Rules, in
force at the material time. It can hardly be denied that Mr. Mortished's
appeal to the Tribunal, based as it was upon the various provisions of the
Staff Regulations and on Rules established by the Secretary-General in
pursuance of those Staff Regulations, corresponds directly with both the
words and spirit of Article 2. It is difficult to see any possible ground on
which the Tribunal could be said to have exceeded the terms of its
juris-diction or competence thus defined. It sought to interpret and apply
the terms of Mr. Mortished's appointment, and the relevant Staff Regulations
and Rules and General Assembly resolutions. Even its application of the
notion of acquired rights it derived from the Staff Regulations which had
been established by the General Assembly. It is impossible to say that the
Tribunal anywhere strayed into an area lying beyond the limits of its
jurisdiction as defined in Article 2 of its Statute. Whether or not it was
right in its decision is not pertinent to the question of jurisdiction. As
the French Government has rightly pointed out, it appears from the
transcripts of the proceedings that the Committee members "made a
questionable assimilation between a possible error of law that might have
been committed by the Tribunal and the excess of jurisdiction imputed to
it". An error of law is not necessarily, and in fact is not usually, made by
a Tribunal's exceeding its competence or jurisdiction. As the Court observed
in its Advisory Opinion on Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against Unesco,
"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." (I.C.J. Reports 1956, p. 87.)
**
79. The Court has concluded that the Administrative Tribunal in Judgement
No. 273 has neither erred on a question of law relating to the provisions of
the Charter of the United Nations, nor committed any excess of its
jurisdiction or competence. It wishes it to be clearly understood, however,
that the fact that it has, in the present case, decided to comply with the
request for an advisory opinion does not in any way imply condonation of the
various irregularities pointed out above, or of the failure of the Committee
on Applications for Review of Administrative [p 366]
Tribunal Judgements to do all in its power to secure equality between the
applicant State and the staff member. The main reason for the Court's
deciding to comply with the request in the present case is, as it has
stressed, its desire to assist the General Assembly if it should decide to
reconsider its present procedure related to review of the Administrative
Tribunal's Judgements.
**
80. For these reasons,
The Court,
1. By nine votes to six,
Decides to comply with the request for an advisory opinion;
In favour: President Elias; Vice-President Sette-Camara; Judges Nagendra
Singh, Mosler, Ago, Schwebel, Sir Robert Jennings, de Lacharrière and Mbaye;
Against: Judges Lachs, Morozov, Ruda, Oda, El-Khani and Bedjaoui.
2. With respect to the question as formulated in paragraph 48 above, is of
the opinion:
A. By ten votes to five,
That the Administrative Tribunal of the United Nations in Judgement No. 273
did not err on a question of law relating to the provisions of the Charter
of the United Nations;
In favour: President Elias; Vice-President Sette-Camara; Judges Nagendra
Singh, Ruda, Mosler, Oda, Ago, Sir Robert Jennings, de Lacharrière and
Mbaye;
Against: Judges Lachs, Morozov, El-Khani, Schwebel and Bedjaoui.
B. By twelve votes to three,
That the Administrative Tribunal of the United Nations in Judgement No. 273
did not commit any excess of the jurisdiction or competence vested in it.
In favour: President Elias; Vice-President Sette-Camara; Judges Lachs,
Nagendra Singh, Ruda, Mosler, Oda, Ago, Sir Robert Jennings, de Lacharrière,
Mbaye and Bedjaoui;
Against: Judges Morozov, El-Khani and Schwebel.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of July, one thousand nine [p
367] hundred and eighty-two, in two copies, one of which will be placed in
the archives of the Court and the other transmitted to the Secretary-General
of the United Nations.
(Signed) T. O. Elias,
President.
(Signed) Santiago Torres Bernárdez,
Registrar.
Judges Nagendra Singh, Ruda, Mosler and Oda append separate opinions to the
Opinion of the Court.
Judges Lachs, Morozov, El-Khani and Schwebel append dissenting opinions to
the Opinion of the Court.
(Initialled) T.O.E.
(Initialled) S.T.B.
[p 368]
Separate opinion of judge Nagendra Singh
As I have voted in favour of the Court's Advisory Opinion in this case and
fully agree with its reasoning no less than its findings, my opinion has no
other object than to emphasize certain aspects of the case about which I
feel the Court could have been more forthright. It could, in my view, have
proceeded a little further in order to arrive at the full logical conclusion
which I feel could have been drawn with profit all round — i.e., in relation
to the General Assembly, which always seeks enlightenment from the Court;
the staff of the United Nations, whose vital interests are involved; and,
lastly, the international community whom the Court has ever to serve.
I
The Court has rightly relied on its own jurisprudence in holding that it is
essential first to determine the entire scope of the question put to it in a
request for an advisory opinion. This would appear to be particularly the
case when dealing with Article 11 of the Statute of the United Nations
Administrative Tribunal (I.C.J. Reports 1973, p. 183, para. 40).
Accordingly, in paragraph 48 of the present Advisory Opinion, the Court has
taken due notice of the two basic aspects which go to determining the whole
gravamen of the question posed to the Court, i.e., first, meeting the
requirements of Article 11 of the Statute of the Tribunal, which specifies
the grounds on which a judgement of the Tribunal may be challenged through
the medium of the advisory jurisdiction, and, second answering in terms of
the specific request made to the Court, which aspect cannot be ignored.
The Court has dealt with the first aspect a great length, and it is true
that in this case that does suffice to a large extent. It would have been
inconceivable not to examine the two particular grounds on which the
Tribunal's judgement has been challenged in this case, as attested by the
voting in the Committee on Applications for Review, namely: that the
Tribunal had exceeded its jurisdiction and its competence, as well as erred
on a question of law relating to the provisions of the United Nations
Charter. There can be no doubt that the Court has come to the right
conclusion on both those aspects by holding that the Administrative Tribunal
neither erred on a question of law relating to the provisions of the Charter
nor committed excess of the jurisdiction or competence vested in it.
However, so far as the second aspect is concerned, which to my mind is vital
because it relates to the specific question asked of the Court, it is [p
369] necessary to provide a full and adequate answer. The precise terms of
the question run as follows:
"Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. The Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station ? " (Emphasis added).
Some pertinent observations have been made by the Court on this question,
and General Assembly resolution 34/165 has been distinctly touched upon by
the Opinion at several places. I nevertheless feel that this aspect could
justifiably have been dealt with more fully and at greater length. The
question put to the Court appears to disclose an anxiety lest the Tribunal
may have flouted resolution 34/165 by declining to allow immediate effect
to the requirement of evidence of relocation where payment of repatriation
grant to Mr. Mortished was concerned. It is, of course, true, as the Court
has pointed out, that "the Tribunal saw itself not as in any way challenging
resolution 34/165 by means of a general notion of acquired rights but simply
as applying the existing Staff Regulations and Rules" (para 75). In support
of this observation, the Court has also rightly stated that the Tribunal
"was faced not only with resolution 34/165 and the 1980 Staff Rules made
thereunder, but also with Staff Regulation 12.1 also made no less by and
with the authority of the General Assembly. On the basis of its finding that
Mr. Mortished had an acquired right, it had therefore to interpret and apply
these two sets of rules, both of which were applicable to Mr. Mortished's
situation. The question is not whether the Tribunal was right or wrong in
the way it performed this task in the case before it; the question - indeed,
the only matter on which the Court can pass — is whether the Tribunal erred
on a question of law relating to the provisions of the Charter of the United
Nations. This it clearly did not do when it attempted only to apply to Mr.
Mortished's case what it found to be the relevant Staff Regulations and
Rules made under the authority of the General Assembly." (Para. 76.)
The aforesaid is certainly sufficient to deal with the grounds
particularized in Article 11 of the Statute of the Administrative Tribunal.
It also helps to answer the actual question put to the Court but it does not
provide a complete answer. One could therefore have wished that the Court,
having agreed to entertain the case, had proceeded further in the direction
of answering the specific request made to it in the exact terms of the
reference [p 370] to the Court. It is true that the Court in this case was
sitting not in appeal but in review, and it had to be careful not to allow
itself to drift into "exercising" a non-existent appellate jurisdiction and
retrying the case. However, the Court could not have been said to incur that
odium if it had merely interpreted and applied resolution 34/165 to the
facts of the case in order to throw more light on the specific question in
which the Committee couched the objections to the Tribunal's judgement.
The crux of the problem lies in the sense of the "immediate effect" to be
given to General Assembly resolution 34/165, which makes entitlement to
repatriation grant subject to evidence of relocation after 1 January 1980.
As the question of interpretation and application of General Assembly
resolution 34/165 is inevitably involved, the wording of the resolution has
to be closely examined, and is reproduced below:
"The General Assembly ...
Decides that effective 1st January 1980 no staff member shall be entitled to
any part of the repatriation grant unless evidence of relocation away from
the country of the last duty station is provided."
It would be clearly unwarranted to interpret the unambiguous words of that
resolution in order to give it retroactive effect, because of potent
considerations based on the well-known principles which govern the
interpretation and application of rules. These clearly require a
prospective thrust to be ascribed to the resolution. For example, the first
principle of interpretation is that normally an enactment of law, whether an
act of the legislature or a rule-making resolution of a body like the
General Assembly, must be construed prospectively and not retroactively.
Again, if the text of that rule is clear and unambiguous, there is no need
to go behind that text to ascertain the intention of the legislature, or the
General Assembly as in this case. Furthermore, another principle is that, if
a legislature intends to give retroactive effect to any rule, it must
necessarily spell this out unequivocally and specifically which has not been
done in this case. In the absence of any such express stipulation, the
construction favouring prospective effect would be justified. What is more,
resolution 34/165, though passed on 17 December 1979, indicates in terms a
future date for its becoming effective, namely 1 January 1980, and this in
itself clearly indicates a prospective intention; hence to interpret the
resolution as having retroactive effect would a fortiori be unjustified. The
conclusion that resolution 34/165 is not retroactive would therefore seem to
be well-founded.
If, therefore, a staff member had completed the requirement of qualifying
service of 12 years to earn the repatriation grant in its entirety before 1
January 1980, it would not be possible to stretch resolution 34/165 in order
to make it applicable retroactively to such a case. Hence, as Mor-tished had
earned the entitlement by his qualifying service of 12 years and thereby
fully completed his entitlement well before 1979, General Assem-[p 371]bly
resolution 34/165, effective as from 1 January 1980, could not be applied
in order to compel him to meet the requirement of furnishing evidence of
relocation for the payment of repatriation grant.
The position might be different in the case of a staff member whose
entitlement to repatriation grant continues to accrue beyond 1 January 1980.
In such an eventuality, the said resolution 34/165 would appear to require
evidence of relocation to be furnished in order for him to obtain the grant
for any period of entitlement, whether before or after 1 January 1980.
However, the same cannot be said in the case of one who earned the entire
grant before 1 January 1980 and is only waiting to receive payment on
retirement. In sum, therefore, without entering into the complex field of
acquired rights, it could have been said that, given the non-retroactivity
of resolution 34/165, when the staff member had fully completed his side of
the requirement for the entitlement to repatriation grant under
circumstances prevailing before 1 January 1980, the employer, in all
fairness, could not ignore that position. The Tribunal came to the right
conclusion, in its Judgement, but on a different ground, basing its
reasoning on acquired rights, whereas the question put to the Court now, it
is submitted, is one primarily involving considerations relating to the
interpretation and application of the text of the resolution 34/165. The
examination of the latter aspect would have served to demonstrate yet
another method of confirming the conclusion reached by the Administrative
Tribunal.
This may have meant going a little beyond the two grounds of Article 11 of
the Statute of the Tribunal on the strength of which reference has been made
to the Court but, as already stated, the Court, according to its own
jurisprudence, "is, in principle, bound to attend to the terms of the
question formulated in the request" (I.C.J. Reports 1973, p. 184, para.
41). Hence it could have done more to draw attention to the divergence in
viewpoint between resolution 34/165, which is prospective as from 1 January
1980 and refers to "entitlement", not "payment", and the question put to the
Court, which implies that the resolution had concerned "payment" and had
decreed its stoppage with immediate effect. For what the question masks is
the fact that the giving of immediate effect to a resolution in that sense
would have involved retroactivity of effect upon perfected entitlements. It
is significant, therefore, that the representative of France in the
Committee on Applications for Review of Administrative Tribunal Judgements,
proposed, in fact, that, instead of the words "be given immediate effect",
the words "take effect retroactively" should be used, which would have very
clearly brought out the correct thrust of the question. However, that
amendment was not entertained by the Committee and the words "immediate
effect" were allowed to stand. In actual fact, then, what the question
implicitly asks is whether the resolution could have been given retroactive
effect by the Tribunal. The answer is that the resolution was worded to be
unequivocally prospective so that all retroactivity was precluded.
Mentioning of this aspect would not have interfered with the proper [p 372]
functioning of the Court and could not have hindered the judicial process,
but would surely have helped readers of the Opinion to appreciate the
problem posed to the Court by a question which was certainly "infelicitously
expressed and vague".
II
The second aspect which I wish to emphasize relates to the powers of the
General Assembly to pass resolutions, whether prospectively or
retroactively, and the legal limitations on that power.
There can be no doubt that the General Assembly is virtually omnipotent in
this particular field since it has sovereign powers to prescribe terms of
appointment for staff members and to regulate their employment (vide Art.
101, para. 1, of the United Nations Charter). However, it could not be said
that such powers of the Assembly were above the law. The limitation is that
the United Nations could not be seen to commit a breach of contract in
relation to its staff member. Consent is the basis of international
obligations binding even sovereign States ; and once the Secretary-General
on behalf of the United Nations and the staff member mutually agree to
certain terms of appointment, no tribunal could acquiesce in the breach of
such an agreement, based upon the free and mutual consent of both parties.
It is submitted that the Court could have brought out this aspect more
pointedly than it has actually done.
In paragraph 76 of the Advisory Opinion, the Court rightly points out that
neither the Administrative Tribunal nor even the Court has the power of
judicial review in respect of decisions taken by the General Assembly,
particularly when dealing with Staff Regulations. However, equally basic is
the fact that the General Assembly has no legal powers to disregard
contractual obligations. It is submitted that the Court should also have
brought out this latter side of the picture after having rightly stated the
limits to the competence of the Administrative Tribunal.
(Signed) Nagendra Singh.
[p 373]
Separate opinion of judge Ruda
I have voted in favour of paragraphs 2 A and 2 B of the operative clause of
the Advisory Opinion, which contains the decisions of the Court on the
merits; but, since I voted against paragraph 1, on the preliminary point as
to whether or not the Court should comply with the request, I feel myself
obliged to explain, in an individual opinion, the reasons for my vote.
In its 1973 Advisory Opinion on the Application for Review of Judgement No.
158 of the United Nations Administrative Tribunal (I.C.J. Reports 1973, p.
166), the Court, for the first time, dealt with a request from the
Committee on Applications for Review of Administrative Tribunal
Judgements, the origin of which was an objection raised by a person in
respect of whom a judgement had been rendered by such Tribunal. I was among
the judges who voted in favour of the decision to render the Opinion in that
case. In the present proceedings, the circumstances differ from those of
1973 on a fundamental legal aspect, because now the application to the
Committee was submitted by a member State, which was not a party to the
litigation before the Administrative Tribunal. This new situation gives rise
to some legal problems different from those that confronted the Court
before.
The Court already took note, in 1973, of some important observations that
were raised in the General Assembly, in 1955, during the discussions on the
review procedure, on the possibility of a member State to initiate such
proceedings. The Court said:
"31. The Court does not overlook that Article 11 provides for the right of
individual member States to object to a judgement of the Administrative
Tribunal and to apply to the Committee to initiate advisory proceedings on
the matter; and that during the debates in 1955 the propriety of this
provision was questioned by a number of delegations. The member State, it
was said, would not have been a party to the proceedings before the
Administrative Tribunal, and to allow it to initiate proceedings for the
review of the judgement would, therefore, be contrary to the general
principles governing judicial review. To confer such a right on a member
State, it was further said, would impinge upon the rights of the
Secretary-General as chief administrative officer and conflict with Article
100 of the Charter. It was also suggested that, in the case of an
application by a member State, the staff member would be in a position of
inequality before the Committee. These arguments introduce additional
considerations which would call for close examination by the Court if it
should [p 374] receive a request for an opinion resulting from an
application to the Committee by a member State. The Court is not therefore
to be understood as here expressing any opinion in regard to any future
proceedings instituted under Article 11 by a member State. But these
additional considerations are without relevance in the present proceedings
in which the request for an opinion results from an application to the
Committee by a staff member. The mere fact that Article 11 provides for the
possibility of a member State applying for the review of a judgement does
not alter the position in regard to the initiation of review proceedings as
between a staff member and the Secretary-General. Article 11, the Court
emphasizes, gives the same rights to staff members as it does to the
Secretary-General to apply to the Committee for the initiation of review
proceedings." (I.C.J. Reports 1973, p. 178.)
The three objections mentioned by the Court in this paragraph were,
therefore, the following:
(a) to allow a member State, which had not been a party to the proceedings
before the Administrative Tribunal, to initiate proceedings for review,
would be contrary to the general principles governing judicial review;
(b) such right would impinge upon the authority of the Secretary-General as
chief administrative officer; and
(e) the staff member would be in a position of inequality before the
Committee.
As to the first objection, it is true that the member State which has
initiated the review proceedings was not a party to the proceedings before
the Administrative Tribunal, the parties thereto having been the staff
member and the Secretary-General; but the right to initiate the review
proceedings does not mean that the State becomes a party to the litigation.
Article 11 of the Statute of the Tribunal does not give the member State the
right to request an advisory opinion, but only the right to invite the
Committee to make the request, which is, therefore, submitted by an organ
duly authorized by the General Assembly. The fact that a member State has
the power to initiate the review procedure does not transform the State into
a party to the dispute. But the Secretary-General is an organ of the United
Nations and the Committee is also an organ of the United Nations;
therefore, the system provides for the contradictory situation that one
organ of the Organization gives his acquiescence to the judgement of the
Administrative Tribunal and another organ of the same Organization, on the
initiative of a third entity not party in the litigation, decides to put
into operation a review proceeding of an already accepted judgement. To my
mind, the system of Article 11 of the Statute of the Tribunal goes against
the elementary requirements of a judicial process, because a party to the
dispute, in this case the United Nations, cannot accept a judgement [p 375]
and, at the same time, open a procedure for its review. This inherent
contradiction in the system is, for me, a very "compelling" reason to refuse
to render the Advisory Opinion.
As to the second objection, concerning the impact upon the authority of the
Secretary-General, my conclusions are based on the juridical situation just
described. The Secretary-General, "the chief administrative officer of the
Organization", according to Article 97 of the Charter, acquiesces in a
judgement of the Administrative Tribunal, in a case where "the parties to
the dispute before the Tribunal are the staff member concerned and the
United Nations represented by the Secretary-General" (Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1954, p. 53). Later, another organ of the United
Nations, subsidiary to the General Assembly, the Committee on Applications,
submits a request to the Court for an advisory opinion, in a review
proceeding, at the initiative of a third entity, a member State, which was
not a party before the Administrative Tribunal. The decision of the
Committee has its juridical effect on a judgement already acquiesced in by
the Secretary-General. This attitude seems to me very clearly to impinge on
the authority of the Secretary-General, precisely in the administrative
field where he is the chief authority. The relationship between the
Secretary-General and the staff member is undoubtedly administrative in
character, including the decision whether or not to open a review procedure.
I see this impact upon the administrative authority of the Secretary-General
as another "compelling" reason to refuse to give the advisory opinion.
We come now to the third objection; i.e., that the review procedure places
the staff member in a position of inequality before the Committee, when the
application is submitted by a member State. The Court rightly points out, in
paragraph 30 of the Advisory Opinion, that the requirements of equality
before the Court are fully satisfied in the present instance, as they were
in 1973, when the review procedure originated in an application submitted by
a staff member. The problem, therefore, is not the inequality before the
Court, but before the Committee.
I find this inequality evident, when the member State submitting the
application is a member of the Committee, as is the case here, for the
simple reason that such State is allowed to vote on its own proposal; the
inequality arising from this fact does not need any further elaboration.
Moreover, it has been the practice of the Committee that the staff member or
his representative is not permitted to participate in the debates, but the
delegate of the State, as a member of the Committee, is present and of
course submits arguments in favour of its application. This additional fact
makes the inequality before the Committee even more evident.
I agree, therefore, with the Court when it states in paragraph 32 of the
Advisory Opinion, that "it can conclude at once that on the theoretical
level inequality exists". I go a step further and I find this theoretical
inequality as another "compelling" reason to refuse to render the Opinion.[p
376]
To sum up, I conclude that when the application is submitted to the
Committee by a State, and more particularly, when such State is a member of
the Committee, the objections mentioned in paragraph 31 of the 1973 Advisory
Opinion are valid and consequently in abstracto the necessary compatibility
of the review procedure with the requirements of a judicial process is not
fulfilled.
Moreover, in the Advisory Opinion, the Court indicates in concreto, in the
particular circumstances of the case, a series of irregularities related to
the composition of the Committee, to the formal defects of the application
submitted by the United States Government, and to the inequality before the
Committee emerging from the fact that such organ refused to allow Mr.
Mortished's counsel to participate in the deliberations. The analysis of the
Court of these irregularities is detailed and convincing; I would only put
perhaps more emphasis on some points.
I would like, on the composition of the Committee, to highlight the
conclusion of the Court in paragraph 38 that it was "unquestionably
irregular" for the Sierra Leone Chairman of the Sixth Committee to nominate
the Vice-Chairman, a Canadian representative, to sit in the Committee on
Applications, instead of a member of his own delegation. I fully share this
conclusion and I find it sufficiently important to be by itself a
"compelling" reason to decline to give the Opinion; the Court cannot act on
the basis of a request from a Committee that has not been properly
constituted.
It seems to me equally important that the United States application did not
clearly set forth in detail the grounds upon which it was based, as is
provided for in Article II, paragraph 3 (c), of the Provisional Rules of
Procedure of the Committee; moreover, this lack of a clear statement on the
ground of objections has particular importance in regard to the second
objection invoked by the Committee, i.e., excess by the Tribunal of its
jurisdiction or competence.
When Mr. Mortished submitted his comments on the United States application,
although he did not fail to point out that the United States statement did
not fall within the terms of Article 11, paragraph 1, of the Statute of the
Tribunal, he developed his arguments, however, on the assumption that the
objection appeared to be based on the existence of an error on a question of
law relating to the provisions of the Charter. But no comments were
submitted by Mr. Mortished on the ground that there has been an excess of
jurisdiction or competence; his position was fully justified because Mr.
Mortished simply did not know, and had no way of knowing, that the United
States application was supposedly based on the allegation of an excess of
jurisdiction or competence. It should be remembered, furthermore, that the
United States delegate, during the debates in the Committee, developed the
idea that the objection based on an excess of jurisdiction or competence was
"subsumed" (see A/AC.86/PV.2, p. 46) by the concept of "error of law
relating to the provisions of the Charter", but Mr. Mortished or his counsel
did not participate in the proceedings of the[p 377] Committee and,
consequently, had no opportunity to present his views on the subject. Hence,
as far as the ground based on an excess of jurisdiction or competence is
concerned, there has been an evident inequality in the procedure within the
Committee in contradiction also with the most elementary requirements of a
judicial process.
Apart from the considerations just mentioned, I must deal in more general
terms with the refusal by the Committee to let Mr. Mortished's counsel be
present and participate in the deliberations. The theoretical inequalities
referred to above find a good example in the practical inequalities in the
present case. This inequality simply results from the participation of the
applicant State in the debate, without Mr. Mortished being given the
opportunity to let his views be heard on the position that such State
developed during the deliberation, which was not exactly the same as the one
it took in the application, but also on the views of other representatives
on the Committee who commented on the United States application.
Furthermore, the applicant State is permitted to vote, and voted, on its own
application. I agree with the Court that, taking into account the
quasi-judicial functions of the Committee on Applications, the
non-participation of Mr. Mortished in the deliberations accentuated the
irregularity of the proceedings (para. 44).
It is clear that up to this point of my reasoning I am in full agreement
with the Advisory Opinion of the Court, with some shades of difference as to
the emphasis to be put on some issues. But the final conclusion that the
Court reaches, despite all these important legal objections, is different
from my own. I find these objections, both on the theoretical and on the
practical level, "compelling reasons" to justify not giving the Advisory
Opinion; the Court, on the contrary, decides to render the Opinion.
The Court bases its main reason for delivering the opinion on the need "to
assist a subsidiary body of the United Nations General Assembly in putting
its operation upon a firm and secure foundation" (para. 45). I have no doubt
that this is a very important value that the Court ought to preserve. The
main purpose of the advisory competence of the Court is precisely to assist,
on legal questions, organs of the United Nations and the specialized
agencies in the fulfilment of their functions; such assistance partakes of
the very nature of the advisory competence. But, as the Court has always
remembered, and as it does also in the present instance, such competence is
discretionary, according to the clear terms of Article 65 of the Statute.
The discretionary power to give or not to give an advisory opinion could
have only one purpose, to leave to the Court the power to fix by itself the
limits of the assistance to be given. Discretionary power means also, by its
very nature, that there are limits beyond which the assistance should not be
given. It is for the Court to fix those limits. These limits arise from the
fact that the Court, even when exercising its advisory competence, remains a
tribunal and, as such, is primarily bound to safeguard the requirements of a
judicial process, in every stage of this review process. This is, for me,
the paramount consideration to be taken into account, the very nature of the
functions of the Court cannot be sacrificed because of [p 378] the need of
assistance to a United Nations organ. Since the delivery of the opinion is
within its discretionary power, the Court has to choose, in the present
case, which value is more important, the assistance to another organ of the
United Nations or the safeguarding of the requirements of the judicial
character of the review procedure. I believe that such requirements are so
affected in the present case, as much in abstracto as in concreto in the
stage of the review before the Committee on Applications, that the Court
should refuse to give this Advisory Opinion.
Moreover, if the Court wants to assist the General Assembly, as is said in
paragraph 79 of the Opinion, "to reconsider its present procedure related to
review of the Administrative Tribunal's Judgements", it is sufficient to
call attention to the failures of the system; perhaps precisely the best
method to call such attention is to refuse to give the Advisory Opinion, on
the basis that the established system, when the application to the
Committee is submitted by a member State, is contrary to the requirements
of a judicial process.
According to the final part of paragraph 45, the Advisory Opinion has two
other objectives in view, first, not to "leave in suspense a very serious
allegation against the Administrative Tribunal, that it had in effect
challenged the authority of the General Assembly" and, second, to dispose
of the "important legal principles involved". As to the first objective, I
do not regard the allegation made against the Administrative Tribunal as a
reason to give the Advisory Opinion; I cannot see the role of the Court as
being to clear the Administrative Tribunal from this kind of allegation,
especially, when the review procedure followed goes against the requirements
of a judicial process. The same rationale could be applied to the second
objective; whatever the importance of the legal principles involved, the
main consideration that the Court should always have in mind is to safeguard
its functions as a tribunal.
I will end this separate opinion by adding that I share the arguments put
forward by the Court at paragraph 26 of the Advisory Opinion, when it
rejects the conclusions of the United States statement that
"if the Court declined to give an opinion, that would 'put in question the
status of Judgement No. 273 of the Administrative Tribunal', with manifest
implications for the Court's discretion to give or to refuse the opinion
requested".
It is juridically impossible for the General Assembly to establish a review
procedure of judgements of the Administrative Tribunal, which would compel
the Court to give an advisory opinion against the clear permissive character
of its advisory functions, in accordance with Article 65 of the Statute. The
General Assembly cannot oblige the Court to find "compelling reasons", in
order to give an advisory opinion. That cannot be the intention of the
General Assembly.
(Signed) J. M. Ruda.
[p 379]
Separate opinion of judge Mosler
While sharing the view of the Court as expressed in the operative part of
the Advisory Opinion, and agreeing to a large extent with the reasons, I
nevertheless feel bound to raise some points which seem to me to require
either additional explanation or a different kind of argument.
I. Procedural Questions
1. The Court in the present case follows the principle, well established in
its previous jurisprudence, that, even though its power to give advisory
opinions is discretionary under Article 65 of the Statute, a request should
not, in principle, be refused and that only compelling reasons would justify
such a refusal (see para. 45 of the present Opinion, with reference to the
Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 183).
After having pointed out in detail the deficiencies of the proceedings in
the present case it goes so far as to find that "the irregularities which
feature throughout the proceedings in the present case could well be
regarded as constituting 'compelling reasons' for a refusal by the Court to
entertain the request" (para. 45). It obviously considers the activities of
the Committee on Applications for Review which resulted in the request for
an advisory opinion as so seriously disregarding some basic principles of
judicial procedure that the Court could have refused to entertain the
request without thereby extending the scope of its discretion as defined by
its earlier case-law.
2. The present case indeed raises, from the aspect of the observation of
such principles, considerably more doubts than the preceding advisory
opinions concerning judgements of the Administrative Tribunal of the
International Labour Organisation and of the Administrative Tribunal of the
United Nations (I.C.J. Reports 1973, p. 166 and I.C.J. Reports 1956, p. 77).
The novel procedural problems with which the Court has now been confronted
are, first, that the application for review of the judgement of the
Administrative Tribunal originates neither from the Secretary-General nor
from the staff member concerned, but from a member State of the United
Nations which was at the same time a member of the Committee which had to
decide on that Application; and secondly, aspects of the proceedings of the
Committee which became, for the first time, known to the Court by means of
the transcripts of its meetings (A/AC.86(XX)/ PV.l, PV.2 and Add.l, 21 July
1981). The Court had thus the opportunity, which it did not have in 1973
when such transcripts did not exist, to [p 380] examine how the Committee,
which the Court then characterized as a political body having quasi-judicial
functions, operated in the deliberations which resulted in the decision to
request an advisory opinion.
The Court pointed out in 1973 that the Committee took part in a procedure
which was, taken as a whole, a judicial process, in which the Committee was
interposed between the Administrative Tribunal which rendered the judgement
and the Court which had to give an opinion on one or more of the legal
points listed in Article 11, paragraph 1, of the Tribunal's Statute. It
characterized the Committee as a political body, a subsidiary organ of the
General Assembly and found that its functions within the whole system of the
judicial process were quasi-judicial. This distinction, which is repeated
in the present Opinion, is of fundamental importance. It follows from it,
on the one hand, that the requirements to be met are not entirely those of a
court belonging to the judiciary, but that, on the other hand, the basic
principles of a judicial hearing, as they are generally recognized in
municipal legal systems and in international legal institutions, have to be
observed.
In 1973, the Court confined its remarks on the Committee to the
characterization of its composition and functions without analysing its
internal activities in the then pending case — on which the Court had no
information. The Court was for that reason almost exclusively concerned
with the question whether a request for review of a judgement of the United
Nations Administrative Tribunal in advisory proceedings complied with the
Court's judicial character and allowed the full application of its Statute
and Rules. The main preoccupation of the Court related to the inequality
between the parties to the original dispute, the Secretary-General and the
staff member, because individual persons have, according to the Statute, no
jus standi in judicio before the Court. In contentious proceedings, the
parties always have the opportunity to submit oral statements in public
hearings. In advisory proceedings, oral proceedings are not indispensable.
The question of inequality between the parties could therefore be bypassed,
in 1973, by the Court's decision not to hold hearings and this solution was
facilitated by General Assembly resolution 957 (X), which recommended that
the Secretary-General and, as the case may be, the applicant member State,
should not make oral statements. The Court found that the condition of
equality between the interested parties was fulfilled by the submission of
written statements (I.C.J. Reports 1973, p. 181). This conclusion was
reached despite grave doubts among Members of the Court, which are expressed
in some of the individual opinions. In the present Opinion the Court does
not call in question the view taken at that time. Nevertheless I cannot but
regret that there should exist a particular type of case coming under the
competence of the Court in which oral statements before the Court are
practically excluded once and for all. This is quite a different situation
from a decision of the Court that, in the circumstances of a request pending
before it, it can comply with its duties on the basis of written statements
only. In advisory proceedings dealing [p 381] with a request for review of a
judgement of the Administrative Tribunal there is no opportunity for the
Court to exercise its discretionary power on that point.
3. One might suggest that this deficiency of the system can be, to a certain
extent, cured by asking in writing for further information which the Court
wishes to obtain additional to the wording of the Request and the
documentation annexed to it. Here a further problem arises, one which is
certainly not very important but demonstrates another aspect of the
inconsistencies of the system. It is the Committee which decides that there
is a substantial basis for an application for review on one of the grounds
listed in Article 11, paragraph 1, of the Statute of the Tribunal. The
Request is therefore made by the Committee but it is transmitted to the
Court by the Secretary-General, who was a party to the original dispute and
who may, as happens to be the case at present, not object to the judgement
which is submitted for review. It may be difficult for him to answer
questions of the Court on points which could properly only be answered by
the Committee itself, which is the dominus negotii but is not a permanent
body and has no direct contact with the Court. This difficulty can be
overcome, but it certainly does not facilitate the procedure, and adds
another function to the complex role of the Secretary-General. It is due to
the almost unavoidable inconsistencies between the three degrees of
institutions dealing with the case, the Administrative Tribunal deciding on
a dispute between a staff member and the Secretary-General, the Committee
convoked ad hoc and deciding on the substantial basis for review, and the
Court dealing, from the legal point of view, not with the contentious case
of the parties but only with the question submitted by the Request.
4. The Request refers back, as far as the four grounds mentioned in Article
11, paragraph 1, of the Tribunal's Statute are concerned, to the reasoning
of the Judgement. In this respect, the Court's role is close to that of a
municipal court of last resort whose competence is confined to certain
questions of law and procedure. On the other hand, the effect of an advisory
opinion cannot, by its very character, be the final word in the case.
Therefore, paragraph 3 of Article 11 establishes a sophisticated system of
transforming the Court's Opinion into a final decision either of the
Secretary-General or of the Tribunal, on the basis of the Court's Opinion.
As the Court pointed out in 1973
"the fact that under Article 11, paragraph 3, of the Tribunal's Statute the
Opinion given by the Court is to have a conclusive effect with respect to
the matters in litigation in that case does not constitute any obstacle to
the Court's replying to the request for an opinion. Such an effect, it is
true, goes beyond the scope attributed by the Charter and by the Statute of
the Court to an advisory opinion. It results, however, not from the advisory
opinion itself but from a provision of an autonomous instrument having the
force of law for the staff members and the Secretary-General." (I.C.J.
Reports 1973, p. 182, para. 39.)[p 382]
This statement is certainly correct from the point of view of the legal
construction of the system of review, but at the same time it shows the
inherent inconsistency in the process as a whole.
5. These imperfections of the system, even when it works regularly, were
considered, in the earlier jurisprudence of the Court, as not compromising
its own judicial function. Doubts may arise as to whether advisory
proceedings are the best way to meet the wish of the General Assembly to
have a procedure for review of judgements of the Administrative Tribunal. It
is for that reason that I thought it appropriate to draw attention to some
weaknesses of this system. Although there are no compelling reasons in this
case to refuse the request, these may be seen, in the circumstances of the
present case, in a new light. Irregularities in the procedure of the
Committee, particularly in dealing with an application coming from a member
State, have given rise to problems of a kind which the Court in 1973 could
not contemplate. Now, as the Court has knowledge of the proceedings of the
Committee, it has to indicate standards for the exercise of the
"quasi-judicial" function of the Committee. The main requirement is, as
pointed out in paragraph 30 of the Opinion, that the principle of equality
of the parties be observed. I share the criticism made in this regard, and I
would like to add that the discrimination against the inter-ested staff
member seems to be even worse than mentioned in the Opinion, for there is no
indication whatsoever in the transcripts of the meeting that the written
statement of Mr. Mortished's counsel played any role whatever in the
deliberations.
6. Apart from the irregularities in the present case, which can be avoided
in the future, one has to answer the question how the proper role of the
Committee, as an organ interposed between a judgement of a judicial body in
a contentious case and an advisory opinion on certain legal points of that
judgement given by the Court, could be defined. Any decision of the
Committee, whether or not it decides that there is a substantial basis for
an application for review, must be based on legitimate considerations
deduced from the task of the Committee, as a subsidiary organ of the
General Assembly which is embedded in a system of a judicial process. The
question is therefore: what are the reasons justifying the Committee's
decision either to reject an application for review or to endorse it? Since
it is not its task itself to review the Judgement its functions are, as the
Court put it in 1973,
"merely to make a summary examination of any objections to a judgement of
the Tribunal and to decide whether there is a substantial basis for the
application to have the matter reviewed by the Court in an advisory opinion"
(I.C.J. Reports 1973, p. 176, para. 25).
The criterion which the Committee has to apply in order to come to the
conclusion that the case is appropriate for review, is, in my view, an [p
383] evaluation of the objections made to the Judgement from the aspect of
the four grounds of effectiveness open to the Court's review by means of an
advisory opinion. The Committee need not go into the details of this
question. The provisional conviction of the Committee that the Judgement is
likely to be criticized by the Court on one or more of the four grounds is
sufficient to justify the endorsement of the Application. This extent of the
examination of the Application is both necessary and sufficient to fulfil
the function of screening the applications presented to the Committee.
7. Although the Committee is a body composed of members who are not chosen
because of their qualification as experts in the matter but as delegates of
States the representatives of which have served on the General Committee of
the most recent regular session of the General Assembly, its decisions must
not be motivated by reasons of a political or financial nature. As part of a
judicial system of review, the Committee can legitimately decide only on
the basis of the law governing the whole system of review. There is no room
for any other basis of its decisions than that resulting from the
determination of the Committee's competence in Article 11, paragraphs 1 and
2. In exercising its powers the Committee acts, in my view, in the common
interest of the organization of the United Nations to ensure control of
judgements of the Administrative Tribunal by the Court in cases which,
according to resolution 957 (X) require review. It may be preferable that it
should meet in permanent composition, and that its members be free from any
instruction. I take the liberty of making these remarks not because there is
any indication, in the present case, that arguments have been advanced which
were not of a legal nature, but in order to attempt to define the role of
the Committee between the Tribunal and the Court as it seems to me to follow
from the logic of the whole system.
8. The conclusion of the Court, that it should entertain the request despite
the irregularities which took place in the Committee's procedure, is based
on two grounds, each of a different character. The positive motivation is
the duty the Court feels to assist the United Nations, the negative one is
the absence of a compelling reason not to give this decision (cf. para. 45).
Although with reluctance, I have voted in that sense, because I share the
view expressed in paragraph 45 that, in entertaining the request, the
Court's judicial role will not be endangered or discredited. I would like
however to point out the following additional considerations: despite the
imperfections inherent in the whole system as I have described them above,
and despite the deficiencies of the proceedings in the intermediary stage
before the Committee in the present case, the Advisory Opinion can be given
in full independence and impartiality, and by means of judicial proceedings
before the Court governed by its Statutes and Rules. The Court has been able
to clarify, by interpretation of the Application, and with reference to the
debates of the Committee, the precise meaning of a badly formulated Request,
and to deal with this question on the basis of the documentation transmitted
to it. This information was not one-sided but allowed the Court to consider
the case from all legally relevant aspects. The [p 384] deficiencies of the
procedure in the present case did not therefore result in any disadvantage
to Mr. Mortished with regard to the objective finding of the law by means of
all relevant legal methods. It is only on the basis of this test that I am
able to consider the request admissible.
II. The So-Called "Constitutional Dimension" of the Case
1. The key issue of the request as explained by the United States is
"whether, in light of all the circumstances of the case, the Administrative
Tribunal gave due weight to the actions of the General Assembly concerning
repatriation grants ..." (A/AC.86/R.97, 17 June 1981). The United States
stressed the "constitutional dimension" of this point because it included
the relevance of Article 101 of the Charter and the authority of the General
Assembly thereunder. The request, as submitted by the Committee in terms
identical to those in the application of the United States, suggests that
the Tribunal has not given immediate effect to General Assembly resolution
34/165 of 17 December 1979 (see para. 1 of the Opinion). This resolution, in
so far as it concerns the repatriation grant, reads as follows:
"The General Assembly...
Decides that effective 1 January 1980 no staff member shall be entitled to
any part of the repatriation grant unless evidence of relocation away from
the country of the last duty station is provided."
2. As is pointed out in the Opinion, the Tribunal did not call in question
the fact that the resolution took effect from the date indicated therein. It
interpreted the resolution in the light of the intentions of the General
Assembly, and emphasized that the Assembly did not contemplate
supplementing or amending the provisions relating to the repatriation grant
contained in the Staff Regulations. In the view of the Tribunal the
Assembly never claimed that there was any defect in the provisions
introduced on 1 July 1979 which diminished their validity (see the reference
made in para. 53 of the Advisory Opinion, and para. XIV of the Judgement).
From that argument the Court concludes that the decision was not that
resolution 34/165 could not be given immediate effect but, on the contrary,
that Mr. Mortished had sustained injury precisely by reason of its having
been given immediate effect by the Secretary-General, because the
Secretary-General did apply the Staff Rules, in a version which omitted the
transitional Rule 109.5 (f), according to which Mr. Mortished had a right
to receive the repatriation grant without evidence of relocation (para. 55
of the Opinion). On the basis of this reasoning the "constitutional
dimension" does not arise, because according to this interpretation — which
is followed by the Court's Opinion - the Tribunal did not disregard a [p
385] resolution of the General Assembly; it only allocated compensation for
the measures taken by the Secretary-General who acted to give effect, in the
case of Mr. Mortished, to General Assembly resolution 34/165, as he
considered it his duty to do.
3. Although it is true that the Tribunal did not directly disregard General
Assembly resolution 34/165, the question however remains whether it did so
indirectly, since it ordered the Secretary-General to pay compensation for
the injury inflicted on Mr. Mortished by the refusal to pay him the
repatriation grant, after 1 January 1980, without evidence of relocation,
thus executing, as the Secretary-General saw it, the decision of the General
Assembly. Implicitly the Tribunal made a decision on the effect of
resolution 34/165. It interpreted it as not having changed the relevant
provisions of the Staff Regulations, and it followed therefrom that the law
applicable to Mr. Mortished was Regulation 12.1 and Staff Rule 109.5 (f).
The inevitable implication is that the Tribunal criticized the
Secretary-General's understanding of the resolution. The Opinion does not go
so far as to discuss the question whether this interpretation of resolution
34/165 is correct, and whether, should the answer be in the negative, the
decision to pay compensation interferes with the power of the General
Assembly under Article 101, paragraph 1, of the Charter. On that
supposition, the question arises whether the Tribunal has committed an error
on a question of law relating to a provision of the Charter which, at the
same time, resulted in an excess of its jurisdiction or competence.
4. After examining this additional question, I come to the conclusion that
the Tribunal did not commit any error of law relating to this provision of
the Charter and that, consequently, it did not interfere with the
competence of the General Assembly. It was therefore possible for me to
vote in favour of the whole of the operative part of the Opinion. In
explaining my reasons, I follow the Opinion of the Court in 1973 when it
stated that it
"is not limited to the contents of the challenged award itself, but takes
under its consideration all relevant aspects of the proceedings before the
Tribunal as well as all relevant matters submitted to the Court itself ...
with regard to the objections raised against that judgement" (I.C.J. Reports
1973, p. 188, para. 49).
The General Assembly decided in the resolution in question that from 1
January 1980 onwards no staff member should be entitled to the repatriation
grant unless evidence of relocation were provided. In my interpretation,
this means that, corresponding to the non-existence of the right, no payment
shall be made, as from that date on, to any staff member who does not
provide the required evidence. This is, in my view, the objective content of
the wording. The preparatory work preceding the resolution therefore need
not be explored. This interpretation of the resolution does however not
necessarily mean that the legal position of Mr. Mortished, [p 386] either
acknowledged or created by the transitory rule, had been altered. That rule
had been incorporated in the Staff Rules in order to implement General
Assembly resolution 33/119 where the Assembly decided, inter alia,
"that payment of the repatriation grant to entitled staff members shall be
made conditional upon the presentation by the staff member of evidence of
actual relocation, subject to the terms to be established by the
[International Civil Service] Commission".
The amendments to the Staff Rules which the International Civil Service
Commission considered to be a correct implementation of resolution 33 /119
became, by an executing act of the Secretary-General, part of the Staff
Rules. They were duly promulgated and governed, from 1 July 1980, the legal
relations between the United Nations and the staff members concerned (see
the introductory remarks to the Staff Regulations, entitled "Scope and
purpose", and Staff Rule 101.1 relating to the applicability to all staff
members of the Staff Rules issued by the Secretary-General).
5. In municipal legal systems it is a generally accepted principle that
everyone can rely on the validity of a legal norm duly enacted by the
competent authority and promulgated in due form to whom it may concern. The
internal law of the United Nations Organization is, as far as the
relationship between the Organization and its staff members is concerned, in
the same legal position as domestic law. The Tribunal was therefore right in
stating that Mr. Mortished had a right by virtue of the amendment adding
subparagraph (f) to Rule 109.5. If the International Civil Service
Commission erroneously interpreted General Assembly resolution 33/119, and
the Secretary-General consequently amended Rule 109.5 in a manner not in
conformity with the will expressed by that resolution, that error of
interpretation is to be imputed to the United Nations Organization, but not
to the staff members, who are bound by the Rules, and correspondingly, can
rely on their validity.
6. The Tribunal qualified the transitional provision of Rule 109.5 (f) as
embodying acquired rights of the staff members concerned. It did so on the
basis of Regulation 12.1, according to which the Staff Regulations may be
supplemented or amended by the General Assembly, without prejudice to the
acquired rights of staff members. As the Opinion points out, it is within
the competence of the Tribunal to interpret whether a right existing in
favour of a staff member is to be considered as "acquired". In so doing, it
does not deal with a question "relating to the provisions of the Charter"
within the meaning of its Statute, and, consequently, did not exceed its
jurisdiction or competence.[p 387]
7. In resolution 34/165, the General Assembly took a decision which, on my
interpretation mentioned above, ran contrary to the wording of Rule 109.5
(f), in so far as payments after 31 December 1980 were concerned. This
resolution did not amend the Regulations in force nor did it state that, in
the view of the General Assembly, the rights covered by the transitional
Rule could not be qualified as acquired in the meaning of Regulation 12.1.
The Staff Regulations of the United Nations were adopted, on the basis of
Article 101, paragraph 1, by General Assembly resolution 590 (VI) of 2
February 1952 (General Assembly Official Records, Sixth Session, Supplement
No. 2 (A/2119). The introduction to the Regulations which forms part of the
text annexed to resolution 590 (VI) characterizes the Regulations as
embodying
"the fundamental conditions of service and the basic rights, duties and
obligations of the United Nations Secretariat. They represent the broad
principles of personnel policy for the staffing and administration of the
Secretariat. The Secretary-General, as the Chief Administrative Officer,
shall provide and enforce such staff rules consistent with these principles
as he considers necessary."
In the following years, as up to the present, these Regulations have from
time to time been amended by General Assembly resolutions which have
provided, in precise terms annexed to the resolutions, for the incorporation
of new texts in the existing articles of the Regulations (see the list
preceding the 1981 edition of the Staff Regulations, ST/SGB/Rev.13). It is
true that the General Assembly, when dealing with matters of staff
employment, does not confine itself to formal amendments to the Regulations.
There are other forms of decisions relating to conditions of employment
which have to be taken into account by the organs concerned with their
application. In the present case, however, Regulation 12.1 protects
explicitly "the acquired rights of staff members" against supplements or
amendments to the Regulations which may result in a prejudice to such
rights. Resolution 33/119 confirms, in a part which is not directly relevant
to the present case, a precisely formulated amendment to the Regulations.
The resolution was satisfied, as far as the question of relocation was
concerned, with asking the International Civil Service Commission to
implement a principle of policy. The Regulations were not touched upon on
that point. Resolution 34/165 also did not affect the Regulations. The
question whether acquired rights of staff members existed had been discussed
before the Resolution was adopted; the Assembly was aware of the problem.
The Tribunal was therefore bound to apply Regulation 12.1, and not to apply
a staff rule which, in its interpretation of the character of Mr.
Mortished's right as "acquired", had an effect contrary to Regulation
12.1.[p 388]
8. This regulation is the higher norm in the hierarchy of the legal
provisions applicable to the present case. Resolution 34/165 could not have
the effect of changing the law, since it did not either amend Regulation
12.1 or clearly state that the General Assembly decided either to disregard
this regulation or to state that the right to the repatriation grant in the
conditions laid down in Rule 109.5 (f) could not be considered as acquired
in the meaning of Regulation 12.1. The question may be left open whether a
decision of this kind would have bound the Tribunal under the principles
governing the distribution of powers between the various organs of the
United Nations. The problem does not arise in the present case because
resolution 34/165 provides no indication in this respect.
9. The preceding additional considerations lead me to the conclusion that
resolution 34/165 did not change the law applicable to Mr. Mortished.
Consequently, the Tribunal did not commit an error on a question of law
relating to provision of the Charter. In my view, the Mortished case has
therefore no "constitutional dimension".
(Signed) H. Mosler.
[p 389]
Separate opinion of judge Oda
1. Although I would agree with the Court in its conclusions regarding the
grounds of objection to the judgement of the United Nations Administrative
Tribunal (UNAT), I regret to say that I cannot agree that the Court, in the
circumstances, ought to have complied with the request for an advisory
opinion.
Part I
2. The Court's Opinion points out various irregularities regarding the
composition of the Administrative Tribunal, the procedures in the Committee
on Applications for Review of Administrative Tribunal Judgements (hereafter
referred to as the Committee on Applications) and the application of the
United States to the Committee on Applications, as well as the failure of
the Committee on Applications to do all in its power to secure equality
between the applicant State and the staff member (paras. 33-44). Yet,
despite these difficulties, the Court still holds the view that it should
comply with the request in the present case in view of the Court's
juris-prudence to the effect that only "compelling reasons" would justify a
refusal. In my view, however, the Court should have declined a reply, on the
particular ground that the actual question conveyed in the request for
advisory opinion is (i) not only extremely sparse and elliptical, or
infelicitously expressed and vague, but (ii) also based on a
misinterpretation of the judgement of the Administrative Tribunal. The
question in the Request seeking an advisory opinion of the Court, identical
to that referred to in the application of the United States presented to the
Committee on Applications on 15 June 1981, read as follows:
"Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station?"
**
3. The UNAT Statute specifies the grounds on which a judgement of the [p
390] Tribunal may be challenged through the medium of advisory jurisdiction.
Under Article 11, an application may be made to the Committee on
Applications for the purpose of obtaining the review of a judgement on any
of the following grounds, namely that the Tribunal has:
(i) "exceeded its jurisdiction or competence";
(ii) "failed to exercise jurisdiction vested in it";
(iii) "erred on a question of law relating to the provisions of the Charter
of the United Nations"; or
(iv) "committed a fundamental error in procedure which has occasioned a
failure of justice".
If the Committee on Applications decides that a substantial basis for the
application exists, it shall request an advisory opinion of the
International Court of Justice (Art. 11, para. 2). However, the Request in
this case, though expressly stating that the Committee on Applications has
decided that there is a substantial basis within the meaning of Article 11
of the Statute for the application of the United States, fails to specify
any of these four grounds. This makes this case quite different from the
only previous case to have come before the Court on the basis of the
application of the aforesaid Article 11, namely that concerning an
Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal. Now, whereas in that earlier case two grounds were
specifically mentioned to justify the application for review, scrutiny of
the drafting of the present Request raises doubt in my mind as to whether
the Committee on Applications examined the matter sufficiently to convince
itself that there was, in this case, a substantial basis within the meaning
of Article 11 of the UNAT Statute.
4. The United States application of 15 June 1981, asking the Committee on
Applications to request an advisory opinion of the Court, not only failed to
comply with some of the procedural requirements, as pointed out in the
Opinion of the Court (paras. 39-41), but also overlooked the requirement
implicit under its Statute of indicating the ground or grounds on which the
United States objected to the judgement in question. Although the United
States representative stated in the Committee on Applications that the
"issue of the Tribunal's having exceeded its jurisdiction and erred on a
question of law relating to the Charter has been placed before this
Committee in the application" (A/AC.86/PV.1, p. 16),
this is not verily a fact. The importance of this failure on the part of the
United States when applying to the Committee on Applications will be
savoured if one considers that the applicant State is not necessarily a
member of the Committee on Applications, and that it thus might not have had
a chance in the Committee on Applications orally to make points not apparent
in the original application.
5. In the Committee on Applications it was not the representative of the
United States but the Chairman and delegates of other countries who were [p
391] more concerned with the specific grounds on which review was called
for. After the Chairman pointed out the four grounds specified in the
Statute (A/AC.86/PV.1, p. 21), the United Kingdom representative stated his
view on two grounds of the four:
"The first is that the Tribunal erred on a question of law relating to the
Charter. Article 101 lays down that the staff regulations shall be
established by the General Assembly, and the relevant paragraph of
resolution 34/165 was an exercise of that function. The second is that the
Tribunal exceeded its jurisdiction or competence in giving more weight to
the doctrine of acquired rights than General Assembly resolution 34/165."
(Pp. 22-23.)
Only after these statements did the United States representative state:
"We are here to decide whether or not there is sufficient merit in the
concern that the Administrative Tribunal has or may have exceeded its
jurisdiction, or committed an error of law in relation to an interpretation
of a provision of the Charter, to require the advice of the International
Court of Justice." (P. 29.)
The representative of France, on the other hand, clearly pointed out that
"in its application the United States [did] not explicitly invoke any of
these grounds" (pp. 38-40) and concluded that the only question which the
Committee was asked or empowered to consider or on which it was empowered to
give an answer, if possible, was: "is there serious reason to believe that
the Administrative Tribunal erred on a question of law relating to the
Charter of the United Nations?" After repeating that "none of the grounds
mentioned in article 11 of the Statute of the Administrative Tribunal
[were] explicitly invoked by the United States", the representative of
France further stated that:
"We find that, even if the United States had implicitly invoked an error on
a question of law concerning the provisions of the Charter, this ground
should be rejected as lacking a valid basis; we find that the Tribunal
committed no error of interpretation of Article 101 of the Charter since —
on the contrary — it recognizes the competence of the General Assembly; and
we find, moreover, that the United States itself recognizes that the
Tribunal has some competence to give rulings on decisions of the General
Assembly." (A/AC.86/PV.1, p. 42.)
So far as the minutes of the Committee indicate, these were practically all
the discussions held in the Committee concerning the grounds which are
referred to in Article 11 of the Statute of the Tribunal and which,
according to Article II, paragraph 3 (c), of the Committee's Provisional
Rules of [p 392] Procedure, ought to have been indicated in the application
for review. It was not even argued in the Committee how the grounds should
be invoked in applying for review in this case. If there was any explanation
on this subject, it was only that made by the representative of the United
Kingdom, as quoted above, who stated:
(i) concerning excess of jurisdiction or competence:
"The Tribunal exceeded its jurisdiction or competence in giving more weight
to the doctrine of acquired rights than General Assembly resolution 34/165";
and
(ii) concerning error on a question of law relating to the provisions of the
Charter:
"Article 101 lays down that the staff regulations shall be established by
the General Assembly, and the relevant paragraph of resolution 34/165 was an
exercise of that function."
6. Without ascertaining how any of the four grounds could justifiably have
constituted a basis for a request for an advisory opinion of the Court, the
Chairman of the Committee on Applications, simply requesting the Committee
to indicate whether there was substantial basis for the appli-cation within
the meaning of Article 11 on the two grounds of the four, proceeded to put
these two points to the vote. The two issues and the results of the voting
were as follows:
(a) the ground that "the Tribunal has erred on a question of law relating to
the provisions of the Charter of the United Nations": a vote of 14 to 2,
with 1 abstention;
(b) the ground that "the Tribunal has exceeded its jurisdiction or
competence": a vote of 10 to 2, with 6 abstentions.
In spite of these decisions of the Committee on Applications, I would
suggest that these grounds had scarcely been discussed in the Committee.
*
7. While the question in the Request was not formulated so as to satisfy the
necessary conditions, the Court, relying upon the settled jurisprudence
whereby it may "seek to bring out what it conceives to be the real meaning
of the Committee's request" (para. 47), holds the view that, in spite of the
incompleteness of the Request in this case,
"If [the legal questions really at issue in questions formulated in a
request], once ascertained, prove to be questions 'which may properly be
considered as falling within the terms of one or more of the grounds
contemplated in Article 11 of the Statute of the Tribunal, it is upon those
questions that the Court can give its opinion." (Para. 48.)[p 393]
The Court takes up the question as to whether the Tribunal had erred on a
question of law relating to the provisions of the United Nations Charter.
If, despite the tortuous phraseology of the Request, one can suppose that
the judgement was opposed on the ground that the Tribunal had erred on a
question of law relating to the provisions of the Charter, as can be
speculated from the deliberations in the Committee on Applications (the
Court reformulates the question put in the Request in that sense), I still
would have some doubts whether the ground that the Tribunal had erred on
such a question would have applied in this case — in other words, if the
judgement of the Administrative Tribunal which was dealing with amendments
to Staff Rules — not Charter provisions — could prima facie have been
challenged on that ground.
8. It is pertinent here to investigate how this ground, as provided for in
Article 11 of the UNAT Statute, was brought in as a ground for the review
procedure therein contemplated. While the Statute of the ILO Administrative
Tribunal, adopted on 9 October 1946, specified two grounds -wrongful
confirmation of jurisdiction, and fundamental fault in the procedure
followed — as capable of founding a request for an advisory opinion of the
Court, the process of introducing the review system for UNAT judgements, in
1955, resulted in the addition of two further grounds where that Tribunal
was concerned. Under one of these new grounds, cases would be covered where
the Tribunal had "erred on a question of law relating to the provisions of
the Charter of the United Nations". As clearly explained in the Opinion:
"the formulation of this clause was the result of a compromise between
those who wanted a review system dealing with questions of law more
generally, and those who favoured the narrower range of permissible
objections that appears in the Statute of the International Labour
Organisation Administrative Tribunal" (para. 63).
9. In the Special Committee on Review of Administrative Tribunal Judgements,
convened on 4 April 1955, the discussions which took place between 11 and 14
April to consider various draft proposals brought to light a wide divergence
of views. In an effort to achieve a broader basis of agreement, a new joint
draft amendment was introduced on 20 April by the representative of the
United Kingdom on behalf of China, Iraq, Pakistan, the United Kingdom and
the United States (A/AC.78/L.14 and Corr.l); this suggested that the
judgement might be objected to
"on the ground that the Tribunal has exceeded its jurisdiction or
competence, or has erred on a question of law relating to the provisions of
the Charter, or has committed a fundamental error in procedure ..."
The representative of the United Kingdom, after having stated that the
element of an error on a question of law "represented the highest common
factor of agreement", remarked, on behalf of the co-sponsoring States, that
[p 394]
"[This] ground, while attempting to meet half-way those representatives who
favoured inclusion of any substantial question of law as a ground for
review, provided a safeguard against the danger that review might become a
matter of course in all cases. It attempted to define with maximum precision
what questions of law could be grounds for review. The words 'relating to
the provisions of the Charter' covered not only interpretations of the
provisions of the Charter but also the interpretation or application of
staff regulations deriving from Chapter XV of the Charter." (A/AC.78/SR.10,
p. 3.)
On the other hand, the representative of the United States specified certain
concrete cases to be covered under the ground mentioned above. He said that
his Government
"understood the ... ground ... to include (a) a question under Article 101
of the Charter whether the Secretary-General's judgement should be upheld
with regard to the conduct of a staff member under United Nations standards
of efficiency, competence and integrity ; (b) a question under Article 97
whether the Secretary-General's action in giving directions to or taking
disciplinary action against a staff member should be sustained ; (c) a
question under Article 100 involving a staff member's duty to refrain from
any action which might reflect on his position as an international civil
servant responsible only to the Organization" (ibid, p. 6).
Paragraph 1 of this joint proposal, which contained the relevant ground, was
adopted by 9 votes to 5, with 3 abstentions, and the joint proposal, as a
whole, was finally adopted by a roll-call vote of 9 to 4, with 4
abstentions. Thus the Special Committee recommended to the consideration of
the General Assembly the draft amendments to the Statute of the
Administrative Tribunal which contained the paragraph as quoted above from
the five nations' joint draft proposal.
10. The report of the Special Committee was on the agenda as item 49 of the
tenth session of the General Assembly in 1955 and was referred to the
deliberations of the Fifth Committee. The Fifth Committee started
deliberation on this agenda on 17 October 1955. By that time the draft
recommended by the Special Committee, as well as a joint draft resolution
submitted by Argentina, Canada, China, Cuba, Iraq, Pakistan, the United
Kingdom and the United States (A/C.5/L.335 and Add. 1), had been made
available. The eight powers' joint proposal contained a provision exactly
identical to that recommended by the Special Committee, and thus also
identical to the original five-nation proposal presented in the Special
Committee, as quoted in paragraph 9 of this opinion.
11. It was apparent at the outset that the staff of the Secretariat, as well
[p 395] as the United Nations Secretary-General, held a somewhat negative
attitude towards the suggested review system. A letter of 10 October 1955
from the Chairman of the Staff Committee to the Secretary-General, which was
made available to the Fifth Committee, read as follows:
"VI, 15. The proposed procedure is certainly a complex one; it would
undoubtedly be lengthy; it might well be uneconomical for all concerned. But
more important than these practical weaknesses is the fact that it would not
accord with the principles inherent in the concept of judicial review. The
Staff Council fears that the proposed procedure might be so used in practice
as to frustrate the declared purpose for which it was created." (A/C.5/634.)
Opening the Fifth Committee discussion on this subject, the
Secretary-General made some observations along the following lines:
"at no time have I felt the need for a review procedure with respect to the
normal cases coming before the Administrative Tribunal. For its part the
Staff Council has stated that it does not consider it necessary a procedure
for reviewing judgements of the Administrative Tribunal. Even though there
has, quite naturally, not been full agreement with every judgment, there has
been no feeling that a new step in the judicial procedure is necessary." "I
consider basic for any review procedure which may be adopted [the principle
(one of four) that] the review should serve only as an outlet in exceptional
cases and should not be for regular use." (A/C.5/635.)
The discussions on these points were summarized in the report of the Fifth
Committee (A/3016) as follows:
"12. Discussion in the Fifth Committee centred primarily on the proposed new
article 11. In favour of this article, it was argued that experience had
shown a need for some method of review of the Administrative Tribunal
judgements in certain cases. By having a procedure of judicial review
available in the event of crisis, the discussion of cases in the General
Assembly could be avoided ...
13. It was pointed out that the recommendations of the Special Committee
represented a compromise which its supporters believed contained the
essential conditions of a satisfactory review procedure. Alternative
proposals had been thoroughly considered in the Special Committee and the
texts recommended were those on which there was the broadest basis of
agreement. Those members of the Fifth Committee supporting the revised
joint draft resolution, therefore, did not [p 396] consider it desirable to
reopen matters which had been settled in the Special Committee.
14. It was pointed out that the text of the proposed article 11 followed the
precedent of article XII of the Statute of the Administrative Tribunal of
the International Labour Organisation ...
15. The co-sponsors of the revised joint draft resolution explained that the
new draft article 11 was intended to limit review to exceptional cases. Two
of the grounds for review were those provided in the Statute of the ILO
Administrative Tribunal, i.e., questions of competence and of fundamental
error in procedure. One additional ground was provided, i.e., errors on 'a
question of law relating to the provisions of the Charter'. The co-sponsors
of the revised draft resolution referred to the statements which they had
made concerning the interpretation of this phrase which was contained in
the report of the Special Committee (A/2909). The opinion was expressed in
the debate that the grounds provided for review were of a fundamental nature
and that as such they could not be ignored, if and when they arose, in the
interest of justice."
12. The addition of a third ground, reading that the Tribunal "has erred on
a question of law relating to the provisions of the Charter of the United
Nations", was explained by the representatives of both the United Kingdom
and the United States in the same way as in the Special Committee, as quoted
in paragraph 9 of this opinion. The statements of these two dele-gates are
worth quoting in order properly to understand the real sense of the third
ground. The representative of the United Kingdom stated:
"It has been felt that the third ground was adequate to cover cases where
the Tribunal, in interpreting and applying some of the Staff Regulations,
did so in a manner which might be considered inconsistent with the
provisions of the Charter, especially of Chapter XV." (A/C.5/SR.493, para.
9.)
According to the representative of the United States:
"[this category] would include such questions as [i] whether the
Secretary-General's judgment should be upheld in regard to the conduct of a
staff member and the United Nations standards of efficiency, competence, and
integrity as prescribed in accordance with Article 101 of the Charter, or,
[ii] whether the Secretary-General's action should be sustained in giving
directions to a staff member, or taking disciplinary action against him, in
view of the Secretary-General's position as Chief Administrative Officer of
the Organization under Article 97 of the Charter; or [iii] a question
involving the staff mem-ber's duty to refrain from any action which might
reflect on his position as an international official responsible only to the
Organization, as laid down in Article 100 (1)" (A/C.5/SR.494, para. 20).[p
397]
13. After the Indian proposal (to an effect not relevant to the particular
problem we are now concerned with) had been accepted by the co-sponsors of
the joint draft resolution, the relevant parts of the revised joint draft
resolution, with the Indian amendments, were adopted by a vote of 28 to 19,
with 11 abstentions. The whole revised joint resolution, including the
amendments, was approved by a vote of 27 to 18, with 12 abstentions, in the
Fifth Committee, giving us the present Article 11 of the Statute as adopted
under General Assembly resolution 957 (X) of 8 November 1955.
14. The three examples which the representative of the United States, as a
sponsor of the third ground, suggested in 1955 — both in the Special
Committee and in the Fifth Committee - could admittedly not be considered
as exhaustive; as illustrations, however, they may be regarded as
particularly telling for the present case, as the question before the
Tribunal in case No. 257 involved none of them. Thus, quite apart from the
fact that no persuasive discussion took place in the Committee on
Applications in 1981 on how the Administrative Tribunal could have erred on
a question of law relating to the provisions of the Charter in this case, it
is far from clear why this specific ground for objection to the
Administrative Tribunal judgement could have been applicable in this
particular instance, in the light of the drafting process of Article 11 of
the UNAT Statute in the Special Committee and the Fifth Committee of the
General Assembly in 1955.
**
15. As properly pointed out in the Court's Opinion (para. 55), the question
in the Request seems to be based on misinterpretation of the judgement of
the Administrative Tribunal. Though it was drafted in such a way as to imply
that the Administrative Tribunal was deemed to have determined that
"General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station",
"the Tribunal did not so determine", as pointed out in the Court's Opinion
(para. 55). The judgement of the Administrative Tribunal, in fact, nowhere
challenges the effect of General Assembly resolution 34/165 and, as again
the Court's Opinion rightly says (ibid.), "in no way seeks to call in
question the legal validity of ... resolution 34/165". Combined with the
failure to specify grounds, such a misconception inherent in the question
posed could, in my view, have by itself justified a refusal to comply with
the request — a fortiori, after the committing of procedural irregularities.
Yet, having decided nevertheless to give an opinion, the Court should in my
view have exposed this misconception with greater clarity. This implies a
somewhat closer analysis of the Tribunal's task.[p 398]
16. The Administrative Tribunal was requested to adjudge and declare, among
other things, for Mr. Mortished, who was separated from United Nations
service on 30 April 1980 —
"that the scheme and detailed conditions and definitions established by the
Secretary-General pursuant to Staff Regulation 9.4 and Annex IV to the Staff
Regulations for the payment of repatriation grants entitled the Applicant to
the payment of such a grant without the necessity for the production of
evidence of relocation".
It was bound, in reaching its findings, to apply any applicable laws in
existence, that is, in this case, those which were valid as of 30 April
1980. The specific laws that the Tribunal would have had to apply to the
question of repatriation grants were Staff Regulation 9.4 and Staff Rule
109.5. Staff Regulation 9.4 has undergone barely any substantial change
since the Staff Regulations were adopted by General Assembly resolution 590
(VI) of 2 February 1952. The relevant provisions in force in 1980 read as
follows:
"Regulation 9.4: The Secretary-General shall establish a scheme for the
payment of repatriation grants within the maximum rates and under the
conditions specified in annex IV to the present Regulations."
Annex IV
Repatriation grant
In principle, the repatriation grant shall be payable to staff members whom
the Organization is obligated to repatriate ... Detailed conditions and
definitions relating to eligibility shall be determined by the
Secretary-General ..."
Staff Rule 109.5, on the other hand, has been extensively amended over the
past several years. It will be pertinent here to take a brief look at the
history of these amendments.
17. Staff Rule 109.5, as amended on 1 June 1976 (ST/SGB/Staff Rules/
l/Rev.3) and then on 1 January 1977 (ST/SGB/Staff Rules/l/Rev.4), read in
part:
"Rule 109.5
Repatriation grant
Payment of repatriation grants under regulation 9.4 and annex IV to the
Staff Regulations shall be subject to the following conditions and
definitions:
(a) 'Obligation to repatriate', as used in annex IV to the Staff
Regulations, shall mean the obligation to return a staff member and his or
her spouse and dependent children, upon separation, at the [p 399] expense
of the United Nations, to a place outside the country of his or her duty
station ..."
The part quoted above remained unchanged until the critical date in 1980,
but new paragraphs (d)-(g) were introduced by the amendment of the Staff
Rules on 22 August 1979 (ST/SGB/Staff Rules/l/Rev.5), relettering the
then-existing paragraphs (e)-(j) as new paragraphs (h)-(m).
"(d) Payment of the repatriation grant shall be subject to the provision by
the former staff member of evidence of relocation away from the country of
the last duty station. Evidence of relocation shall be constituted by
documentary evidence that the former staff member has established residence
in a country other than that of the last duty station.
(e) Entitlement to repatriation grant shall cease if no claim for payment of
the grant has been submitted within two years after the effective date of
separation.
(f) Notwithstanding paragraph (d) above, staff members already in service
before 1 July 1979 shall retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the grant
which they already had accrued at that date without the necessity of
production of evidence of relocation with respect to such qualifying
service.
(g) Payment of the repatriation grant shall be calculated on the basis of
the staff member's pensionable remuneration, the amount of which, exclusive
of non-resident's allowance or language allowance, if any, shall be subject
to staff assessment according to the applicable schedule of rates set forth
in staff regulation 3.3 (b)."
Staff Rule 109.5 was further amended on 15 July 1980 (ST/SGB/Staff
Rules/l/Rev.5/Amend. 1), with effect from 1 January 1980, to implement the
decision adopted by the General Assembly in its resolution 34/165, so that
paragraph (f) was simply cancelled. (In this amendment of 15 July 1980
paragraph (e) was expanded, but this is not relevant to the present case.)
Staff Rule 109.5 (d), which had already been in force since 22 August 1979,
categorically required the presentation of evidence of relocation by a
former staff member. The Administrative Tribunal, in 1981, could not have
ignored this rule, and in fact did not ignore it.
18. The Administrative Tribunal, in applying Staff Rule 109.5 (d), which was
in force at the critical date, would also have had to take into account
Staff Rule 112.2 (a), closely linked with Staff Regulation 12.1, which is
intended to ensure due regard for the acquired rights of staff members. The
provisions read as follows:[p 400]
"Regulation 12.1: These Regulations may be supplemented or amended by the
General Assembly, without prejudice to the acquired rights of staff
members."
"Rule 112.2
(a) These rules may be amended by the Secretary-General in a manner
consistent with the Staff Regulations."
The rights of the Secretariat staff are certainly protected under these
provisions.
19. The provisions on the acquired rights of staff members could have been
applied in different ways. On the one hand, the Administrative Tribunal
could have decided that, already at the date of its entry into force, namely
22 August 1979, Staff Rule 109.5 (d) had deprived the staff of the United
Nations Secretariat of the alleged acquired right to receive repatriation
grant without any evidence of relocation, a right implied to exist in view
of the shifting of the concept of repatriation grant or the practices
followed over the previous few decades (cf. Judgement No. 273, para. VII).
On the other hand, the Tribunal could simultaneously have stressed the
importance of Staff Rule 109.5 f) - in force from 22 August 1979 to 31
December 1979 — so that the applicant suffered injury by being deprived of
the entitlement he enjoyed under this specific clause. This also seems to be
an interpretation given by the Judgement (para. XIII). I have some doubts,
as I will later explain in Part II of this opinion, about the process
whereby this particular provision, Staff Rule 109.5 (f), was set up in 1979.
Yet it cannot be denied that it remained in force for several months in late
1979. It was simply cancelled in the new Staff Rules of 1980, which
implemented General Assembly resolution 34/165. Whether the simple
cancellation of Staff Rule 109.5 (f) in the 1980 Staff Rules had prejudiced
the right which the applicant might have acquired under this specific
provision of the 1979 Staff Rules in the light of Staff Regulation 12.1 and
Staff Rule 112.2 (a) was also a matter for the Administrative Tribunal to
judge.
20. If a violation of acquired rights under Staff Regulation 12.1 and Staff
Rule 112.2 (a) has been ascertained, the Administrative Tribunal cannot
amend the Staff Regulations or Staff Rules, but can only adjudge that the
applicant has sustained an injury as a result of disregard of a Staff
Regulation or a Staff Rule and is thus entitled to compensation. And,
indeed, that is what the Tribunal did; it delivered a judgement saying that
compensation for injury should be paid to Mr. Mortished without raising any
questions as to the validity of General Assembly resolution 34/165. It is
difficult to see in what way, by such a pronouncement, the Tribunal could
have exceeded its competence.
**
21. To sum up: first, quite apart from the lack of any explicit reference in
the Request to any of the four possible grounds (as required under [p 401]
Art. II, para. 3 (c), of its Provisional Rules of Procedure), the
deliberations of the Committee on Applications do not convincingly indicate
any reasonable grounds on which the Judgement of the Administrative
Tribunal could have been objected to and, in addition, it would seem that
the ground for objection on the basis of error on a question of law relating
to the provisions of the United Nations Charter was not applicable from the
outset; secondly, the Request is drafted on the basis of an entirely
erroneous premise. I myself wonder whether these fundamental errors of
procedure and understanding ought not to have been regarded as "compelling
reasons" for the Court not to have responded to the Request for an advisory
opinion in the present case.
Part II
22. While voting against on the first point in the operative paragraph for
the reasons I have stated above, I voted in favour on the second and third
points, since I can share the views expressed in the Court's Opinion, being
fully convinced that the Administrative Tribunal did not err on a question
of law relating to the provisions of the Charter of the United Nations and
that it did not commit any excess of jurisdiction or competence vested in
it. Yet I cannot but suggest that some errors seem to have been committed in
the preparation of the provisions on repatriation grant in the 1979 Staff
Rules (ST/SGB/Staff Rules/l/Rev.5).
23. As this may have affected the nature of the case before the Tribunal, it
seems pertinent to look in a more detailed manner than does the Court's
Opinion at the way in which the 1979 amendments affecting Rule 109.5 on
repatriation grant came to be drafted. The second annual report of the
International Civil Service Commission (A/31/30) was put on the agenda (item
103) of the thirty-first session of the General Assembly. The International
Civil Service Commission had been established "in principle, as of 1 January
1974" "as a new organ for the regulation and co-ordination of the conditions
of service of the United Nations common system" under General Assembly
resolution 3042 (XXVII) of 19 December 1972 and, according to its Statute
drafted by General Assembly resolution 3357 (XXIX) of 18 December 1974, the
Commission is, under Article 10, to "make recommendations to the General
Assembly" on, among other things, "(a) the broad principles for the
determination of the conditions of service of the staff" and "(c) allowances
and benefits of staff which are determined by the General Assembly",
including the repatriation grant. On the other hand, the Commission could,
under Article 11, "establish", among other things, "rates of allowances and
benefits, other than pensions and those referred to in Article 10 (c), the
conditions of entitlement thereto..."
24. In 1976 the newly-created International Civil Service Commission [p 402]
examined, among many other things, the repatriation grant scheme and,
pending a further study, recommended in its second annual report, as
mentioned above, some changes to the scale of benefits. During the
discussions on item 103 in the Fifth Committee of the General Assembly at
its thirty-first session some doubts were expressed as to the handling of
the repatriation grant, and
"The view was ... expressed that the Commission should consider whether
staff members who did not return to their country of origin on retirement
should be entitled to the grant." (Report of the Fifth Committee (A/31/449),
para. 28.)
The General Assembly, in its resolution 31/141 of 17 December 1976, entitled
"Report of the International Civil Service Commission", requested the
Commission
"to re-examine, in the light of the views expressed in the Fifth Committee
at the current session,... (a) The conditions for the provision of terminal
payments (for example, repatriation grant,...)" (B, II, para. 3).
In 1978, the International Civil Service Commission studied the conditions
for payment of the repatriation grant, and its examination centred on, as
one of two questions, "the appropriateness of paying the grant to a staff
member who, upon separation, does not return to his home country" (A/33/30,
para. 181). However, the Commission in its report (A/33/30), being of the
view that
"Strictly speaking, it was clear that [paying repatriation grant to a staff
member who did not in fact return to his home country upon separation from
the organization] would be inconsistent with the stated purpose of the
grant" (para. 183),
acknowledged the practical difficulties of keeping track of the movements of
a former staff member after he had left the service, and had no desire to
see an international information network set up to do so. Believing that to
pay repatriation grant to a person who remained permanently in the country
of his last duty station was incompatible with the purpose of the grant, it
considered the possibility that the grant be paid only to a staff member who
supplied evidence that he had settled elsewhere. It recommended that
"payment of the repatriation grant should be made conditional upon signature
by the staff member of a declaration that he does not intend to remain
permanently in the country of his last duty station" (para. 186).
25. At the thirty-third session of the General Assembly in 1978, the Fifth
Committee considered the report of the International Civil Service [p 403]
Commission (agenda item 111). The Chairman of the Commission stated, along
the lines mentioned above, that
"it believed that the repatriation grant should not be paid when the staff
member, at the end of his service, remained in the place of his last duty
station ... The Commission considered that the most practical solution would
be to require, as a condition for payment of the grant, that the staff
member should sign a declaration to the effect that he did not intend to
continue to reside permanently in the country of his last duty station."
(A/C.5/33/SR.32, para. 41.)
Thus the intent of the Commission was at that time crystal-clear. The
discussions in the Fifth Committee on eligibility for the repatriation grant
or the means of proof were very limited, and several delegates considered
that the proposed condition for payment of the grant did not constitute a
sufficient guarantee against abuse. The Chairman of the Commission made a
statement that
"greater measures of control should be applied only if there were proven
cases of abuse. In its study, the Commission has found that in a few cases
repatriation grants had been paid to expatriate staff members who had not
moved from the country of their last duty station, and the proposal was
intended to eliminate what was considered to be an unjustifiable and
anomalous payment in such cases." (A/C.5/ 33/SR.42, para. 69.)
26. In the Fifth Committee a draft resolution on the report of the
International Civil Service Commission read to the effect that
"The General Assembly ... decides that payment of the repatriation grant to
entitled staff members shall be made conditional upon the presentation by
the staff member of evidence of actual relocation, subject to the terms to
be established by the Commission." (A/C.5/ 33/L.33/Rev.l, IV, para. 4.)
It seems certain, in the light of the competence of the Commission as
provided for in its Statute, that the phrase "to be established by the
Commission" could not have been meant as corresponding to the word
"establish" in Article 11 of the Statute. The representative who introduced
a draft resolution on behalf of 17 countries had explained that this
paragraph had made it clear that evidence of actual relocation would be
required in addition to a signed declaration by the staff member (A/
C.5/SR.56, para. 29), and that the phrase "subject to the terms to be
established by the Commission" in no way "diluted the thrust" of the
decision for the whole paragraph but merely provided for its administra-[p
404]tive implementation (para. 51). It seems that the intention of the
sponsoring countries, as pointed out by many delegates at the Fifth
Committee one year later, was not to leave any doubt at all regarding the
problem of repatriation grants. General Assembly resolution 33 /119,
entitled "Report of the International Civil Service Commission", as adopted
on 19 December 1978, read the same as a text proposed at the Fifth
Committee. No amendment in respect of repatriation grant was made in the
Staff Regulations and annexed, as usual, to the General Assembly
resolution. It is quite clear that, while amendments to the Staff
Regulations and "such consequential changes as are necessary in the Staff
Rules" to be made by the Secretary-General were referred to in this General
Assembly resolution (IV, para. 11), they did not have any relevance to the
repatriation grant. It has, however, to be noted that the
Under-Secretary-General for Administration and Management expressed some
concern regarding the requirement of evidence of relocation and stated
that, since acquired rights were involved, the matter could create problems
unless the Commission could find some means of resolving the difficulty
(A/C.5/33/SR.56, para. 32). This statement seems to be the first sign of
acquired rights rearing their head.
27. The following facts are known from the Report of the International Civil
Service Commission (A/34/30): early in 1979 the International Civil Service
Commission considered, on the one hand, what should be admitted as
constituting evidence of relocation and the provision of documentary
evidence that the former member had taken up residence in another country.
On the other hand, it was informed that the legal advisers of several
organizations had studied the question and come to the conclusion that any
entitlement already earned by a staff member could not be affected
retroactively by changing the rules, though the exercise of further
entitlements accruing after the date of the change would be subject to
compliance with the new condition. It then sought an opinion of the Office
of Legal Affairs of the United Nations Secretariat, which indicated that, in
so far as the United Nations Organization itself was concerned, there was no
express or implied provision that only those who actually made use of the
travel entitlement should receive the repatriation grant. Seemingly affected
by the opinion of the Secretariat of the United Nations and other
specialized agencies, the Commission appears to have completely changed its
position of one year before and surrendered to the idea that all existing
staff members had acquired the right to repatriation grant irrespective of
their future location upon separation. The International Civil Service
Commission adopted and "promulgated" on 6 April 1979 the following text
(CIRC/GEN/39):
"The following modifications to the terms of entitlement to the repatriation
grant are established by the International Civil Service [p 405] Commission
in pursuance of paragraph 4 of section IV of General Assembly resolution
33/119:
(a) With effect from 1 July 1979 payment of the repatriation grant shall be
subject to the provision by the former staff member of evidence of
relocation away from the country of the last duty station;
(b) Evidence of relocation shall be constituted by documentary evidence that
the former staff member has established residence in a country other than
that of the last duty station, such as a declaration by the immigration,
police, tax or other authorities of the country, by the senior United
Nations official in the country or by the former staff member's new
employer;
(c) Payment of the grant may be claimed by the former staff member within
two years of the effective date of separation;
(d) Notwithstanding paragraph (a) above, staff members already in service
before 1 July 1979 shall retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the grant
which they already had accrued at that date without the necessity of
production of evidence of relocation; the exercise of any additional
entitlement accrued after that date shall, however, be subject to the
conditions set out in paragraphs (a) to (c) above." (Emphasis added.)
28. Now, admittedly, Article 25, paragraph 1, of the Commission's Statute
provides that "decisions of the Commission shall be promulgated" but the
"decisions" which are to be "promulgated" are clearly those falling within
the terms of Article 11. However, matters dealt with under Article 10 of
that Statute (which include repatriation grant) are to be the subject of
recommendations to the General Assembly, and there is no question of
promulgating these: they may simply be communicated by the Secretary-General
of the United Nations to the executive heads of the other organizations
under Article 24, paragraph 1, and are not the object of promulgation by the
Commission itself. I wonder therefore if the Commission, in promulgating the
text concerning the repatriation grant, did not exceed the mandate entrusted
to it under Article 10 of its Statute? At any rate, it was clear to several
delegates who took part in the discussions in the Fifth Committee at the
thirty-fourth session of the General Assembly several months later that such
a decision by the Commission was not quite in conformity with the terms of
its mandate under General Assembly resolution 33/119. In particular, the
representative of the United States pointed out:
"As a sponsor of that resolution [33/119], the United States believed that
all Member States had understood that the phrase 'subject to the [p 406]
terms to be established by the Commission' meant solely establishing the
documentation which a former staff member must submit in order to qualify
for a repatriation grant." (A/C.5/34/SR.46, para. 66.)
It is possible, I suggest, that some misunderstanding had arisen owing to
the resolution's use of the word "establish", which is featured in Article
11 of the Commission's Statute and may be associated with "decisions" that
are to be "promulgated" under Article 25. Though I do not think that the
Commission would have been justified in taking the use of this word as
automatically strengthening its powers in relation to an aspect of
repatriation grant, I can see how some confusion might have arisen in this
respect.
29. At all events, the very rapid response of the Secretary-General to the
action taken by the International Civil Service Commission seemed to assume
that the Commission had indeed been given a major delegation of powers. An
Administrative Instruction was issued on 23 April 1979 under the name of the
Assistant Secretary-General for Personnel Services (ST/ AI/262):
"2. Pursuant to that decision [Section IV, paragraph 4, of the General
Assembly resolution 33/119], the [International Civil Service] Commission
has established the following modifications to the terms of entitlement to
the repatriation grant:
[quotation from CIRC/GEN/39, as given above]
3. Effective 1 July 1979, the above-cited provisions shall govern the
conditions for payment of repatriation grant to United Nations staff members
under Annex IV to the Staff Regulations. Suitable amendments to the Staff
Rules will be made in due course."
Some revisions to the then-existing Staff Rules were introduced by the
Secretary-General's Bulletin of 22 August 1979 (ST/SGB/Staff Rules/
l/Rev.5). The Bulletin stated that Rule 109.5 was amended with effect from 1
January 1979
"as a consequence of the changes to... the repatriation grant... adopted by
the General Assembly in its resolution 33/119," "to make the payment of the
grant conditional upon presentation of actual evidence of relocation with
respect to periods of eligibility arising after 1 July 1979".
The new text of Rule 109.5 has already been quoted in paragraph 17 of this
opinion.
30. Pursuant to Staff Regulation 12.2, requiring the Secretary-General to
report annually to the General Assembly any amendments to the Staff Rules,
the Secretary-General made a report to the General Assembly dated [p 407] 13
September 1979 on "Personnel questions : Other personnel questions :
Amendments to the Staff Rules" (A/C.5/34/7) :
"Those changes [such consequential changes as were necessary in the Staff
Rules] as well as other amendments to the Staff Rules, which were mostly
based on the decisions taken by the International Civil Service Commission
under Article 11 of its Statute, are incorporated in the revised editions of
the two series of Staff Rules that have been approved by the
Secretary-General for publication ...
2. . . . (e) Pursuant to General Assembly resolution 33/119, rule 109.5,
Repatriation grant, was amended to make the payment of the grant conditional
upon presentation of actual evidence of relocation with respect to periods
of eligibility arising after 1 July 1979 ..." (Emphasis added.)
It has already been pointed out that reference to Article 11 of the Statute
of the International Civil Service Commission would be improper in
connection with the implementation of resolution 33/119 by the Commission.
One must therefore assume that the Secretary-General did not intend the
"mostly" to apply to the modifications of Rule 109.5, but the impression
conveyed is otherwise.
31. When the report of the International Civil Service Commission to the
General Assembly (A/34/30) was discussed in the Fifth Committee of the
General Assembly at its thirty-fourth session, the significance and
implication of that decision of the Commission, as well as the revision of
the Staff Rules on 22 August 1979, gradually drew attention. Strong
criticisms of the decision were heard from various delegates and few
favourable views were expressed. Yet the Acting Chairman of the Commission
stated that the General Assembly had clearly mandated the Commission to
establish the terms under which the grant would be paid and, noting that the
question of repatriation grant had called for no action by the General
Assembly, he further stated:
"The Commission, which did not claim to be a legal committee, had taken a
pragmatic decision in the interests of economy, judging that it would be
unreasonable to impose upon organizations a measure which would certainly be
appealed by staff members... The General Assembly was, of course, free to
overrule the Commission, but it should be noted that the governing bodies of
the majority of the other organizations in the common system had, since July
1979, approved the incorporation of the measures announced by the Commission
into their organizations' staff regulations." (A/C.5/34/SR.55, para. 41.)
In so saying, he noted that "the practice of paying the grant to staff
members who did not leave their duty station had been established", and [p
408] he admitted that the majority of the members of the Commission had felt
that the practice was in conformity with the provisions of the Staff Rules
and Regulations (ibid., para. 40).
32. In such a situation, the idea that effective 1 January 1980 no staff
member should be entitled to any part of the repatriation grant unless he
provided evidence of relocation away from the country of the last duty
station was introduced by several delegates as a part of a draft resolution,
but on the other hand some of them were aware that it might create a number
of problems, particularly from the point of view of other organizations in
the common system. The Under-Secretary-General for Administration, Finance
and Management was concerned about such an idea because it would have the
effect of revoking a decision which was in process of implementation by the
agencies in the common system (A/ C.5/34/SR.60, para. 59). It is quite
clear, in the light of his suggestion that transitional arrangements
regarding the requirement of evidence of relocation as a condition for
payment of the repatriation grant be accepted, that he held the view that
Rule 109.5 (f), with the effect of not applying the new obligation
concerning the evidence of relocation to any period of service prior to 1
July 1979, would simply be revoked. That this point reflected the
interpretation of the United Nations Secretariat was also clear from the
statement made later by the Assistant Secretary-General for Personnel
Services to the effect that —
"The net result of the new decision would be to nullify the notion of such
service credit and make all payments of the repatriation grant subject to
the uniform requirement of evidence of relocation." (A/ C.5/34/SR.79, para.
111.)
His appeal for a period of transition in the form of a grace period of one
month during which all staff members (ibid., para. 112) would have been in a
position to assess its impact on their terminal benefits also affords
further proof that the proposed imposing of a deadline would, in his view,
simply revoke the right of the personnel to receive repatriation grant
without provision of evidence of relocation. Further evidence in the same
sense was furnished by his Information Circular of 14 December 1979 (ST/IC/
79/84).
33. On 17 December 1979 the General Assembly adopted resolution 34/165
entitled "Report of the International Civil Service Commission", which
contained the following provision:
"The General Assembly ... decides that effective 1 January 1980 no staff
member shall be entitled to any part of the repatriation grant unless
evidence of relocation away from the country of the last duty station is
provided." (II, para. 3.)
On 21 December 1979 an Administrative Instruction was issued from [p 409]
the Assistant Secretary-General for Personnel Services (ST/AI/269):
"2. ... the terms of entitlement to the repatriation grant set out in
administrative instruction ST/AI/262 of 23 April 1979 are amended by the
substitution of a new subparagraph (d) and, as so amended with effect from 1
January 1980, are as follows :
(d) No staff member shall be entitled to any part of the repatriation grant
unless evidence of relocation of residence away from the country of the last
duty station is provided."
Some new amendments to the Staff Rules (ST/SGB/Staff Rules/ l/Rev.5/ Amend.
1) were introduced by the Secretary-General in his Bulletin of 25 July 1980.
The Bulletin stated that –
"Rule 109.5. Repatriation grant, is amended with effect from 1 January 1980
to implement the decision concerning repatriation grant adopted by the
General Assembly in its resolution 34/165 by cancelling the transitional
arrangement which had been established with regard to staff members already
in service before 1 July 1979"
and the new Rule 109.5 read in part as follows:
"Rule 109.5
Repatriation grant
………………………………………………………………………………………………
(f) (Cancelled)."
34. The International Civil Service Commission presented to the thirty-fifth
session of the General Assembly, in 1980, a report (A/35/30) in which it
commented upon the effect of General Assembly resolution 34/165 on the
harmonization of personnel practices of the organizations within the United
Nations common system. It stated:
"The Commission was concerned that the General Assembly, having at its
thirty-third session given an express mandate to the Commission to
establish terms under which repatriation grant would be payable to the
staff, should, at its thirty-fourth session, have reversed the decision
taken by the Commission. It wished to draw to the attention of the General
Assembly the implication of such action for the harmonization of personnel
practices in the common system, as well as for the credibility and the
effectiveness of the Commission which the General Assembly had itself set up
and to which it had[p 410] assigned certain responsibilities. The
Commission, therefore, would have preferred that the General Assembly refer
this question back to the Commission for reconsideration of its decision as
allowed for under the Statute approved by the Assembly." (Para. 14.)
As I see it, this criticism of the General Assembly by the International
Civil Service Commission was perhaps somewhat over-hasty in view of the
doubts about the Commission's own interpretation of resolution 33/ 119.
35. To sum up, I would suggest that if in 1979 the Staff Rules had been
revised in a more cautious and proper manner, so as to meet the wishes of
the member States of the United Nations, such confusion as has confronted
the Court could well have been avoided. More particularly, if the amendment
of Staff Rule 109.5 in 1979 had been carried out in conformity with the
spirit of the General Assembly resolution of the previous year, the
situation of the repatriation grant system might have been totally different
and the Administrative Tribunal might have delivered a different judgement
on any case therefrom arising.
(Signed) Shigeru Oda
[p 411]
Dissenting opinion of judge Lachs
I. Introduction
1. The birth of international organizations not only opened a new chapter of
international law but also created a series of issues concerning their
functioning and the status of their personnel. Thus differences of view have
arisen concerning the rights and obligations of this new type of official ;
some became disputes between the administration and the official, and gave
rise to specific problems concerning the methods and procedures for
resolving them. The officials could not be left without remedies, hence the
creation of special organs to resolve differences arising in this area.
Thus, as is well known, three administrative tribunals are now in existence.
The Administrative Tribunal of the United Nations established a rich
jurisprudence which has helped to shape the internal law of international
organizations. Yet no tribunal is infallible and occasionally questions
were raised as to the correctness of its decisions. Hence the introduction
of the machinery for the review of the judgements of two of these tribunals.
The latest outcome is the present case.
2. There are several reasons which make me reluctant to write this opinion:
among them is the fact that we face here a judgement coming from a tribunal
which has a very good record and with many of whose findings I could surely
agree. Yet, since I unfortunately have difficulty in accepting an important
part of that judgement — a part with which I consider that the Court should
have dealt in greater depth —, I feel that I must, in all conscience,
indicate my views.
II. Jurisdiction
3. The Request, at first sight rather simple, raises complex and difficult
questions of law. As the Court's opinion amply shows, the mere
circumstances of its submission called for some trenchant comments on
procedural issues and a special examination of the question of
jurisdiction. As for the review procedure as a whole, its theoretical
shortcomings are by now notorious. But in practical terms the Court's
experience in the present case has been even more painful than that in the
handful of comparable cases that preceded it: the irregularities committed
are most striking, in particular at the stage of the Committee on
Applications. However, at first [p 412] I saw in them no compelling reasons
which would be an obstacle to considering the merits. Yet their closer
analysis reflected in the text of the Advisory Opinion has disclosed grave
violations in the screening process. Thus I was divided in my mind and the
scales could easily have tipped the other way. Nevertheless, the Court's
decision was taken undeniably in the long shadow cast by these deficiencies,
despite which it agreed to surmount the difficulty, continued with the
analysis of the case and reached its conclusions. This unusual circumstance,
while reinforcing my doubts on the subject of the Court's jurisdiction,
will, in later sections of this opinion, enable me to proceed with an
analysis of the merits.
III. The Locus Standi of States Members of the United Nations
4. In the present case the Court could not, of course, as in 1973, put aside
as irrelevant the arguments against the propriety of a State challenging
the judgement in a dispute to which it is not a party. On the contrary, it
had to live up to its statement that such "considerations would call for
close examination by the Court if it should receive a request for an opinion
resulting from an application to the Committee by a member State" (I.C.J.
Reports 1973, p. 178 at para. 31). In doing so, however, it has been mindful
that the arguments were originally raised in 1955 and that the General
Assembly amended the Statute of the Tribunal despite them and in full
awareness of them. Designedly, therefore, the General Assembly adopted an
amendment permitting an intervention by a member State in a dispute between
the Secretary-General and a staff member.
5. There are two aspects to the above objections to "State intervention".
One concerns the rights of the staff member party to the original dispute.
The other concerns the prerogatives of the other party thereto, the
Secretary-General, as chief administrative officer of the Organization.
From both angles, it has been objected that the procedure allows the
intrusion of a member State into the relationship between the
Secretary-General and a member of his staff.
6. What this boils down to is the issue of the relationship between member
States and staff members (or former staff members) of the United Nations.
Here a distinction has to be made between the day-to-day, functional
relationship and the basic, organic relationship. The Secretary-General is
the pivot of this distinction. For everyday, practical purposes, the staff
members are responsible to him alone. The very nature of their duties,
safeguarded by Article 100 of the Charter, is such as to require them to be
shielded from the pressure of the individual member State - but also to
require all member States to be shielded.[p 413]
7. Conversely, the basic, organic relationship between the staff member and
the member State has to be looked at in the light of fundamentals. One
"fundamental" which is constantly obscured in the context of disputes is
that it is not the Secretary-General that is a principal organ of the
Organization, but the Secretariat - to which both he and his staff belong.
The Secretary-General's staff are the servants of the United Nations. Their
relationship is with the Organization, whose instructions he is expected to
interpret and transmit. As chief administrative officer he represents the
Organization in his dealings with them, but, as Article 101 of the Charter
implies, it is another representative of the Organization, namely the
General Assembly, which makes and has oversight over the regulations
governing their relationship not only with him but with the Organization
behind him. Thus the United Nations, made up of member States of which the
General Assembly is the voice, is the ultimate employer of the staff. As the
Court itself recognized in 1954, and has now confirmed (in para. 68), the
Secretary-General is at all times subject to the control of the General
Assembly in staff matters (cf. I.C.J. Reports 1954, p. 60).
8. The conclusions to be drawn are that the relationship lies basically
between the staff member and the Organization and that, at that level, a
member State, as such, cannot be regarded as an outsider. The present case,
moreover, concerned not only an important problem of the validity of a rule
but also the implementation of a General Assembly decision which did not
affect one staff member only, and the issue involved touched upon — as I
hope to show — the fundamental interpretation of Article 101 of the Charter.
9. In sum, the General Assembly's 1955 decision to admit the possibility of
an application for review being submitted by a member State constituted
recognition that a member State, as a representative of the Organization,
can have a legitimate interest in questioning the Tribunal's decision on a
matter concerning the staff member's rights and obligations vis-à-vis his
ultimate employer, the Organization. On such occasions it is, I believe,
misleading to visualize such an application as amounting to an intervention
in a relationship between two other persons.
10. The fact is that, as was already seen in 1973, "Article 11 was not
introduced into the Statute of the United Nations Administrative Tribunal
exclusively, or even primarily, to provide judicial protection for
officials" despite what had been said in 1956 about Article XII of the
Statute of the ILO Administrative Tribunal (see I.C.J. Reports 1973, p. 183
at para. 40), and the Court must therefore give due weight to the other
party deserving judicial protection — namely the Organization.[p 414]
IV. Grounds of the Application for Review
11. Judgement No. 273 of the United Nations Administrative Tribunal, while
not ordering the payment to Mr. Mortished of the repatriation grant he
claimed, awarded him compensation in exactly the same amount, so that there
is a material (if not jurisprudential) identity between the effect of its
action and the satisfaction of the claim. The awards of the Tribunal (as
concluded by the Court in 1954) are binding upon the United Nations. A
member of the General Assembly of that Organization has made use of the
review procedure in order to challenge the legal basis of this particular
award.
12. I agree with the strictures passed by the Court on the diffuse and
awkward wording of the question put to it by the Committee on Applications
after consideration of the application for review, and I also agree that it
is necessary to go behind this question in order to determine what grounds
of objection are alleged, within the meaning of Article 11 of the Statute of
the Tribunal. Of the two grounds raised in the Committee on Applications,
one, that concerning excess of jurisdiction, seems most closely to relate to
the terms of the actual question put to the Court, in that the
Administrative Tribunal, though competent to examine alleged non-observance
of terms of appointment, certainly has no power effectively to countermand a
decision of the General Assembly. This point is apparently met by the fact
that the Tribunal "merely" awarded compensation, thus not denying the
immediate effectiveness of General Assembly resolution34/165. But what I
find a particular source of concern is that the basis of this award was a
finding that Mr. Mortished enjoyed an "acquired right" by virtue of the
already abolished Staff Rule 109.5 (f), a text which, as I shall show, was
in conflict with the will of the legislator. I therefore agree with the
Court that the focus of enquiry should be the other ground of objection,
namely error on a question of law relating to the provisions of the Charter.
V. The "Contentious" Aspects of the Court's Present Task
13. Before passing on to consider whether Judgement No. 273 did in fact
commit an error on a question of law relating to the provisions of the
Charter, I wish to comment on four other ways in which the Court's Opinion
endeavours to narrow the scope of the enquiry to be undertaken. The first is
by emphasizing the difficulties inherent in making use of the Court's
advisory jurisdiction for the purpose of resolving contentious issues. This
point is connected with the apprehension lest the Court act as a court of
appeal, lest it "retry the case". I am in entire agreement with the caution
here advocated, to the extent that it does not prevent the Court from
fulfilling its role in concreto. But let it be remembered that even the
Court's own Rules contemplate the possibility of its advisory opinion being
sought "upon a legal question actually pending between two or more [p 415]
States" (Art. 102). Of course, safeguards can then be given by observance of
the rules for contentious cases, and it is notably more difficult to provide
similar safeguards when one of the parties is an individual without
standing before the Court. However, the examination of contentious issues
is an inherent task of the Court in the review procedure, and if ever it
considers that the performance of this task involves inequitable treatment
of the parties its proper course may well be to decline to give an opinion.
It does not improve the situation by agreeing to give an opinion while
declining to examine the issues as thoroughly as is needed to reach a
well-founded conclusion. Here, in my view, the Court draws back from the
thorough accomplishment of its task in deference to scruples which relate to
the system, not the case.
14. Another, connected way in which the Court has reduced the scope of its
enquiry is to suggest that it may be able to detect an error in the
Tribunal's interpretation of the Staff Regulations and Rules without itself
deciding (or, at any rate, expressing) what, in its view, is the correct
interpretation — without, indeed, even getting "involved in the question of
the proper interpretation of the Staff Regulations and Staff Rules, as such,
further than is strictly necessary [etc.]" (para. 64). However, I regret to
note that here (as also in para. 66) the Court acts upon this formula only
in regard to an objective which narrows down the scope of enquiry to
consideration whether the Tribunal's interpretation is "in contradiction
with the requirements of the provisions of the Charter" (my emphasis). This
is an inadequate goal, which would clearly bar the Court from performing its
real function, under Article 11 of the Tribunal's Statute, of examining any
question of law in relation to those provisions, in order to ascertain
whether the Tribunal erred thereon. But is not any court of law, whatever
its functions, obliged to test its criticism of a judicial decision taken by
another against its own conclusion as to what would have been correct? Is it
usually possible for it to be sure of having detected an error without being
equally sure of what the other tribunal ought to have said? To resort to an
illustration taken from the jurisprudence of the Belgian Conseil d'Etat:
[Translation by the Registry]
"The Council of State, administration section, has not to substitute its
appreciation for that of the Minister as regards the advisability of issuing
an emergency order; however, to discharge the task of verifying legality
which is inherent in that very competence, the Council of State,
administration section, is under an obligation to examine whether the
Minister, in invoking an emergency, attributed its proper scope to the
provision in Article 3, subparagraph (1), of the co-ordinated laws, or in
other words whether, in applying the concept of emergency to the
circumstances of the case, the administrative authority did not go so far
as to disregard, by distorting this concept, the legal [p 416] qualification
attached to it by the legislator." (Arrêt n° 16488, 20 juin 1974, A.S.B.L.
Institut technique libre Georges Cousot et consort c. Etat belge, Recueil
des arrêts du Conseil d'Etat, 1974, pp. 645-647.)
15. Interestingly, the Court's Opinion itself refers to an "assumption that
the advisory opinion is to deal with a different question from that
submitted to the Tribunal" (para. 61). This reveals that there is no
necessary reason why the declaration of the Court's interpretation of the
particular point or points underlying its answer to the question before it
should be equivalent to the substitution of "its own opinion on the merits
of the case for that of the Tribunal" (para. 47 of the Fasla Opinion), since
the merits are likely to cover many other points on which the Court may have
nothing to say. Indeed it is quite conceivable that the Court's
interpretation of a particular question of law may differ from that of the
Tribunal while leaving unaffected the latter's findings on the merits. It is
in that light also that the action of the Tribunal subsequent to the Court's
Opinion, under Article 11, paragraph 3, of its Statute, may be conceived.
16. In sum, while I agree that it is "very much the business of this Court
to judge whether there is a contradiction between a particular
interpretation or application of Staff Regulations and Rules by the
Tribunal and any of the provisions of the Charter" (Opinion, para. 66), I
fail to see how this business can be carried on without reaching a
conclusion as to what an alternative interpretation or application might
have been. Any other approach would be self-defeating, in that it would
imply that the Court must give the Tribunal the benefit of the doubt at the
very point where the Tribunal's Statute seeks to empower it to do the
reverse. Hence "the inherent limitations of the advisory procedure" (ibid.,
para. 63) would be so conceived as to frustrate the purpose of that Statute
and make the provision in question a dead letter. Here again, to my mind,
the Court has the choice either of refusing the procedure or, if it accepts
it, of trying to make it work.
17. A third way in which the present Advisory Opinion has circumscribed the
Court's powers is by declaring that
"It is not the business of this Court to decide whether the Tribunal's
Judgement involves an error in its interpretation of the relevant
instruments, unless it involves an error on a question of law relating to
the provisions of the United Nations Charter." (Para. 74.)
I hope sufficiently to indicate below why I consider this to be a false
antithesis. Indeed, I would say that errors in the interpretation of
instruments having their fons et origo in the Charter would be typically
the kind of errors contemplated in Article 11 of the Tribunal's Statute.
18. Fourthly, the Court recalls that neither it nor the Tribunal possesses
"any 'powers of judicial review or appeal in respect of the decisions' taken
by the General Assembly" (para. 76). With this I entirely agree, with the [p
417] proviso that, as I have pointed out elsewhere, there is a possibility
of the Court performing interpretative functions serving a similar purpose,
acting upon the request of the Assembly or other organ desiring legal
guidance as to its own activities (I.C.J. Reports 1950, pp. 131 ff.; 1971,
p. 23). But I also conclude that, in consequence of this limitation, it
behoves the Court, and a fortiori the Tribunal even more to heed the wishes
of the Assembly as expressed in its decisions.
VI. Meaning of "Error of Law on a Question relating to the Provisions of the
Charter of the United Nations"
19. As the preparatory work makes clear, it is highly unlikely that any
provisions lying outside Chapter XV or Article 55 (c) of the Charter would
be involved in a case before the Administrative Tribunal, and where Chapter
XV is concerned staff members and the Secretary-General are no less
interested than member States in this general observance. But within Chapter
XV, Article 101, as constantly interpreted, provides a specific role for the
General Assembly in establishing the regulations under which staff shall
serve. Thus, in considering an application from a Member of the Assembly,
one must look particularly, though not exclusively, to Article 101 to
establish the scope of the ground of objection to the effect that the
Tribunal has erred on a question of law relating to the provisions of the
Charter.
20. To my mind, the Court's Opinion takes too abstract a view of this
necessary operation. But it is certainly important to begin with the actual
text of Article 11, paragraph 1, of the Tribunal's Statute: "error on a
question of law relating to the provisions of the Charter". It has in
particular to be stressed that it is the "question of law", not the "error"
itself, that has to "relate to" the provisions of the Charter. The
requirement of "connecting up" with the Charter, which is necessary for the
Court to be able to examine the possibility of legal error, is thus a broad
one, relating to the subject-matter of the Tribunal's deliberations, not
necessarily to its actual analysis of Charter provisions.
21. Inspection of the Charter rapidly establishes that paragraph 1 of
Article 101 is the text therein raising "questions of law" involved in the
Mortished case before the Administrative Tribunal. On the one hand, that
paragraph has been consistently interpreted as the basis of the General
Assembly's power to make and maintain staff regulations (even if, unlike
para. 3, it is ostensibly concerned with terms of appointment rather than
conditions of service). On the other hand, the Tribunal, in the exercise of
its functions, continually applies and interprets those regulations, and the
rules flowing from them. Any "question of law" in the area of those
regulations and rules thus "relates to" this provision of the Charter, and
if the Tribunal in any way "errs" on such a question, it provides a ground
on [p 418] which its judgement may be challenged via the review procedure,
and affords the Court the possibility of examining its reasoning on that
question.
22. Pace the Court's Opinion (para. 65), what it is about the Tribunal which
derives its ultimate validity from the Charter is not so much the law it
applies as its application of the law, because that is its very functioning,
which is entirely dependent on the Statute with which the Assembly endowed
it. The actual law it applies may derive from a variety of sources, some
general, some more particular. Among the more particular are the Staff
Regulations and the Rules enacted for their implementation. A question of
law concerning these relates to a provision of the Charter. On the other
hand, a general question of law — say, the question of acquired rights —
will not of itself relate to the provisions of the Charter. If, however, for
the sake of that question, the Tribunal has occasion to apply or observe
Staff Regulations and Rules deriving from General Assembly resolutions -
hence from Article 101 of the Charter - and does so wrongly, its error will
afford a ground of review. There is therefore no justification for
suggesting that, just because of the vast scope of the Charter, all legal
errors without distinction would be subject to the review process if the
relevant words of Article 11 of the Tribunal's Statute were interpreted as
they stand. Besides, in the nature of things, the Court is involved, through
this review procedure, in matters which are seldom likely to take on the
international dimensions to which it is accustomed. Hence, while the Court
is right to suggest that the reference to the Chapter forms a qualification
which diminishes the inappropriate aspects of that involvement, it should be
realized that any stressing of an alleged requirement of importance belongs
rather to criticism of the system than to analysis of the text. Finally,
there is a long distance between the interpretation indicated here and that
which would include any "error of law". By forcing a choice between two
antipodes, the Court loses sight of the real value of the "compromise
solution" sought in 1955, to which it approvingly refers.
23. Finally, as I hope to make plain, the question of law which is in my
view central to the case is decidedly of constitutional dimensions, since it
concerns none other than the authority and relationships of the General
Assembly, the Secretary-General and the International Civil Service
Commission. The Court avoids the issues involved by placing them beyond the
provisions of the Charter. But it is in the Charter that the very source is
to be found of the relationship between the General Assembly, the
Secretary-General and such a subsidiary organ as the International Civil
Service Commission. Hence, whether "question of law concerning the
provisions of the Charter" be given a restrictive or an extensive
interpretation, I am satisfied that the question with which I am concerned
passes the test and qualifies for the Court's examination.[p 419]
24. The Court itself, on one occasion, said of the whole of Article 101 of
the Charter:
"The General Assembly could limit or control the powers of the
Secretary-General in staff matters, by virtue of the provisions of Article
101" (I.C.J. Reports 1954, p. 60; quoted in para. 68 of the Court's present
Opinion).
Thus, theoretically, a conflict might arise between a decision of the
Secretary-General (e.g., a Rule or amendment issued by him) and a decision
by the General Assembly controlling his powers. Any question involving that
control thus concerns Article 101 of the Charter, on the Court's own
showing. However, it is arguable that the error may also — or alternatively
— concern other provisions of the Charter, applied to the personnel of the
Organization, as they should be applied in international relations. If the
United Nations is to promote, "With a view to the creation of conditions of
stability and well-being . . . based on respect for the principle of equal
rights ... of peoples", "conditions of economic and social progress and
development" (Charter, Art. 55), it is obviously bound to proclaim and
practise the same principles within its internal legal system: not only to
avoid but to bar all types of discrimination among those serving this
Organization. If a much wider approach is taken, it will be seen that an
error in giving a more privileged position to some and placing others on a
disadvantageous level is involved in the present case. This question had in
fact been raised by the non-expatriate personnel.
VII. Merits of the Review
25. To evaluate properly the whole case, the best way is to begin with the
decision of the Administrative Tribunal. This, in a nutshell, was as
follows: a resolution of the General Assembly (34/165) which was
lawmaking, inasmuch as it was the basis of an amendment of a relevant Staff
Rule (109.5), was declared ineffective in regard to an identified person
(Mr. Mortished). He was granted as compensation a "sum equal to the
repatriation grant" in reliance on another, earlier resolution, one already
replaced, and a clause in the Staff Rule (109.5 (f)) which was no longer in
force. The ground of this award was an alleged "injury" sustained by the
person concerned and due to the operation of the new resolution and Rule.
What was the injurious act impeached? Refusal of payment following
non-compliance with a request for evidence of relocation as a condition for
paying a repatriation grant due to that person on separation and
relocation.
26. The Court did not consider whether the Tribunal, precisely in [p 420]
resorting to the substitutions just mentioned, did not err on a question of
law relating to the provisions of the Charter. It could however have done so
without "retrying the case" : it need only have reviewed "the actual
substance of the decision" to the extent envisaged in paragraph 48 of its
1973 Advisory Opinion (quoted in para. 57 of the Court's present Opinion).
VIII. The Nature of the Repatriation Grant
27. Let us consider the basic facts. We are confronted with an institution
called "repatriation grant" which was established for internationally
recruited staff members of the United Nations. Its objective was officially
stated 33 years ago: it was intended to make up for the
"loss... of professional and business contacts with the home country. the
necessity of giving up residence and liquidating obligations in a foreign
country; and ... expenses which a staff member will normally have to meet in
re-establishing himself and his home on return to his own country" (General
Assembly Official Records, Fourth Session, Annex to Summary Records of Fifth
Committee, Vol. II, A/ C.5/331 and Corr.l, para. 108).
The logical outcome, in the words of the Advisory Committee on
Administrative and Budgetary Questions, was that a "lump sum [should] be
paid to staff members on being repatriated to their home countries to cover
costs of re-establishing themselves" (A/313, para. 68).
28. Thus the object and purpose of the grant was clearly defined. In the
further development of this institution it was decided that: "The
Secretary-General shall establish a scheme for the payment of repatriation
grant in accordance with the maximum rates and conditions..." (General
Assembly resolution 470 (V), 15 December 1950). It was also laid down, under
the heading "Repatriation Grant", that:
"In principle, the repatriation grant shall be payable to staff members
whom the organization is obligated to repatriate except those terminated by
summary dismissal." (Ibid., Ann. II.)
This was to become the basis of Annex IV to the Staff Regulations. The words
"in principle" were evidently employed to provide some necessary flexibility
in exceptional cases, and not to bestow an unconditional right to payment on
all staff members who were objects of the mentioned obligation. This is at
once clear from the promptly issued circular of the Secretary-General,
dated 20 December 1950, which for the staffs information, stated that: "The
principle of a repatriation grant has been established, the grant to be
payable to such members returned at United Nations expense to[p 421] their
home countries." (ST/AFS/SER.A/72, para. 11; my emphasis.) Here the word
"principle" did not refer to payment (as the Court seems to assume) but to
the institution established.
29. After the grant had come into being on 1 January 1951, the Salary Review
Committee found that it was "unable to recommend the extension of the grant
to non-expatriated staff" (Salary Review Committee report, 1956, A/3209: see
paras. 224 and 225). Thus the special status of expatriate personnel was
emphasized; the grant was intended only for those who, after terminating
their service, go back to their country. This theme was to be repeated on
many subsequent occasions (cf. Secretary-General's Bulletin, ST/AFS/SGB/81,
Rev.2 and Rev.3, of 1 January and 6 July 1951; ST/AFS/SGB/94 of 1 December
1952; Rev.4 of 15 August 1955). It is really surprising, in the light of
such convincing evidence articulating the original object and purpose of the
grant, that the Court can have found "that the title of the grant has always
been a misnomer" (para. 66; my emphasis). Affirmed at the beginning, the
original description was defended 30 years later in the General Assembly.
Equally strange is the reliance placed on the expression "obligated to
repatriate" for the purpose of denying the reality of the repatriation
requirement (ibid.). This expression is only one side of the coin, the other
being the staff member's obligation to leave his last duty station in order
to qualify for the grant.
30. Two further interesting features are worth mentioning in the context.
One is the sliding scale on which the amount of the grant is calculated and
the 12-year maximum period of service taken into account. These indicate
that the original guiding idea contemplated chiefly expatriates who would
need help in picking up the threads of their career after separation, a task
which becomes progressively more difficult as the years roll by, but not so
much help as to enable them to live for more than a few months without being
stimulated to look for other work. The grant was therefore not intended to
be a gradually earned lump-sum gratuity to be paid on separation to those
who had reached retirement and would draw a pension.
IX. The Question of Evidence: Its History and Legal Complications
31. The object and purpose of the institution having been defined, no
difficulty about evidence need have arisen. It is only the events that
followed which seem to have created some confusion on the subject. Thus in
1952 the CCAQ Secretariat suggested that:[p 422]
"it is believed that the grant should be paid after two years' service
abroad, regardless of the conditions of separation (including resignation
but excluding summary dismissal) and regardless also of whether the staff
member is actually repatriated" (CO-ORDINATION/ R.124, p. 6).
It was also pointed out that a staff member might have two or more
residences and that it would then be difficult to establish the real
address. But it was clear that these reasons were only an expedient means of
endorsing a lax practice and were not intended to establish the correct
interpretation of the underlaying principle. Small wonder this proposal
never became part of the law. The Staff Regulations and Staff Rules remained
unchanged.
32. On the other hand, the link with the home country was stressed again
when in 1964 the Secretary-General incorporated into the Staff Rules a
special provision concerning reduction of "repatriation grant entitlement"
by one year for each six months' service in the home country, with the
restoration of the credit (one year for six months) in case of later posting
abroad.
33. Moreover, a special Staff Rule 104.7 (c) laid down:
"A staff member who has changed his or her residential status in such a way
that he or she may, in the opinion of the Secretary-General, be deemed to be
a permanent resident of any country other than that of his or her
nationality may lose entitlement to non-resident's allowance, home leave,
education grant, repatriation grant and payment of travel expenses upon
separation ..." (my emphasis).
These elements further stressed the link between the repatriation grant and
the fact of repatriation as a condition for its payment. A person becoming a
permanent resident in another country might lose the title to the grant. (To
my great regret, the Advisory Opinion omits any reference to that rule.)
34. The CCAQ recalled in 1974 its 1952 proposal that the grant be payable
whether repatriation takes place in fact or not, yet it stated again that:
"The whole purpose of the grant is to assist the staff member and his family
to re-establish in the home country and clearly there is no logical
justification for paying the grant to a staff member who remains in the
country of his last duty station." (CCAQ/SEC/325/ (PER), para. 14.)[p 423]
Having stated this, it turned to the practical difficulties and the
possibility of the ex-official evading the obligation by travelling to his
home country or to another country and travelling back to the place of his
last duty station in the United Nations at his own expense, without the
administration knowing it.
35. With the passage of time, the requirement of evidence and formalities
concerning the "repatriation grant" underwent a further liberalization of
interpretation. The "obligation to repatriate" was given a wider meaning
and became the "obligation to return ... to a place outside the country of
[the] duty station" (Secretary-General's Bulletin, ST/AFS/SGB/94, 1 December
1952; Rule 109.5 (a)). It was also conceded that "loss of entitlement to
payment of return travel expenses ... shall not affect a staff member's
eligibility for payment of the repatriation grant" (now Rule 109.5 (l)).
Moreover, in the practice of both the United Nations and other international
organizations the requirement of evidence was not complied with. A practice
developed of the grant being paid whether the official in question left his
last duty station or not. However, and this is most important from the legal
point of view, that practice, wide as it may have been, was never
incorporated into any rules and it could therefore never have had any
rule-making effects. The requirement of evidence of relocation remained
binding. The proof of this is abundant:
(a) The International Civil Service Commission, called upon to review the
question of the grant, found in 1978 that: "The conditions of entitlement
to the grant have remained essentially unchanged since they were first
established with effect from 1 January 1951." (A/33/30, para. 179.)
(b) The Chairman of the ICSC (Señor Quijano) made a very relevant statement
on the subject to the Fifth Committee in 1978: "In its study," he said, "the
Commission had found in a few cases grants had been paid to expatriate staff
members who had not moved from the country of their last duty station." He
added that this was considered "to be an unjustifiable and anomalous
payment" (my emphasis). (A/ C.5/33/SR.42, para. 69.)
(c) The 1978 report of the ICSC concludes by a most telling formulation:
while stating that it had "no desire to see an international information
network set up to keep track of the movements of former staff members"
(para. 185), the ICSC believed that
"to pay repatriation grant to a person who remained permanently in the
country of his last duty station was incompatible with the purpose of the
grant and could also be seen as discriminatory by non-expatriate staff
members" (A/33/30, para. 185, my emphasis).
Thus, notwithstanding the lax practice and proposals made by some organs of
the United Nations and of other organizations there is no proof[p 424] that
the necessary evidence of relocation was dispensed with in law (cf. above)
and that officials were entitled to receive the grant without being obliged
to produce such evidence.
36. On the contrary, 29 years after the rationale of the grant was defined,
it was emphatically restated. The grant was to serve its real purpose; no
distortion of the institution and its purpose was sanctioned; it was not to
become an instrument of abuse. Any attempt to establish the right to a grant
without being repatriated (or having relocated) would amount to an
interpretation in fraudem legis.
37. That the law had remained unchanged since 1951 was confirmed even by the
Administrative Tribunal in the very judgement which is the subject of the
Court's deliberations, for it notes that the scheme announced by the
Secretary-General on 22 August 1979 "was the first time that a provision of
the Staff Rules acknowledged that entitlement to the repatriation grant
might exist without evidence of relocation being provided" (Judgement, para.
XIII). The new provision in question (Rule 109.5 (f)) was the outcome of
action taken by the International Civil Service Com-mission following a
decision by the General Assembly. That action and its fruit have to be
analysed in order to appreciate the basis of the Tribunal's decision.
X. Resolution 33/119 and Staff Rule 109.5 (F) and Their Source
38. I turn now to the latest chapter in the history of the elaboration of
the relevant rules, and in doing so cannot but note that the Court, after
giving such a detailed analysis of the preceding chapters, pays but scant
attention to the making of the two General Assembly resolutions which are
decisive elements of the case. In particular it remains reticent on the
evidence of the real wishes of the General Assembly, as so clearly expressed
in the records. By resolution 33/119 the General Assembly decided that
"payment of the repatriation grant to entitled staff members" should "be
made conditional upon the presentation ... of evidence of actual
relocation, subject to the terms to be established by the [International
Civil Service] Commission"(my emphasis). The emphasized words expressed the
Assembly's reaction to the recommendation made in paragraph 186 of the
Commission's report to the Thirty-third Session (A/33/30), to the effect
that "payment of the repatriation grant should be made conditional upon
signature by the staff member of a declaration that he does not intend to
remain permanently in the country of his last duty station". They contain no
reaction to the proposals in the same paragraph that "CCAQ should agree on a
common transitional measure" in favour of the staff members who might have
planned not to relocate after separation on the assumption they would
receive the grant.[p 425]
39. The Assembly's reaction was not to accept a signed declaration of intent
as sufficient proof of title to payment but, considering that the Commission
ostensibly endorsed (in the above-quoted paragraph 185 of the same report)
the principle of actual relocation as an inherent condition of payment,
nevertheless to leave it to the Commission to define what proof was
sufficient. Hence it is clear from the text of General Assembly resolution
33/119, read with the explanations of the co-sponsors in the Fifth
Committee, that the International Civil Service Commission had been
entrusted by the Assembly with the specific but very limited task of
establishing no more than the terms of evidence of actual relocation through
which the fact of repatriation (as elastically understood) was henceforth to
be controlled. The words "subject to" had not empowered the ICSC to
establish conditions of entitlement — that, the General Assembly had done. A
fortiori, it had no power to provide for exemptions, to divide personnel
into two different categories. It was merely to specify what was to
constitute acceptable evidence, when and how it should be produced, etc.
Instead, it produced a proposal which distorted its mandate. The division of
the expatriate personnel into two categories, to one of which — by far the
greater — exemption was granted, and the prescription of an artificial date
(1 July 1979) making a distinction between them were obviously contrary to
the will of the legislator, and the strength of the Assembly's reaction is
fully comprehensible. The Commission appeared, in respect of the
overwhelming majority of serving staff members of the Secretariat, to have
gone back upon the arguments it had presented to the Assembly in its own
report (A/33/30), ignored the basis of its own recommendations therein (the
last of which had set no higher than an "assumption" what it now endeavoured
to transform into a right) and, in introducing transitional arrangements,
disregarded the limited nature of the delegation of power conferred upon it
by the Assembly. For it was quite obvious that by resolution 33 /119 the
Assembly had envisaged the application of the new (though always inherent)
requirement of evidence to all "entitled staff members", and this is made
clear by its adoption of resolution 34/165.
40. It may be argued, at a pinch, that the general mandate of the ICSC
enables it to institute (via executive heads) transitional arrangements in
order to avoid hard cases and anomalies or to preserve acquired rights. On
the question of acquired rights, let me just say for the moment that this is
a question of entitlement and that the ICSC is not empowered by its Statute
(see Art. 11) to stipulate entitlements within the purview of Article 10
(c), which places, inter alia, repatriation grant under the direct authority
of the General Assembly. But, be that as it may, even if the ICSC can
institute [p 426] transitional arrangements, is it conceivable that it could
do so in such a way as to exempt from a General Assembly decision the vast
majority of those to whom the Assembly intended it to apply? The Commission
had no implied powers herein, for it should not be forgotten that the
implied powers of an organ are limited to those which, though not expressly
provided for in its statute, "are conferred upon it by necessary implication
as being essential to the performance of its duties" (I. C.J. Reports 1949,
p. 182). The Commission's whole duty, in relation to resolution 33/119, was
to establish the terms on which evidence of relocation would be regarded as
sufficient and acceptable, in the case of all staff members entitled to
repatriation grant.
41. Faced with the "promulgated" decisions of the ICSC embodying the
unwarranted distinction between two categories of staff member, the
Secretary-General, acting under Staff Rule 112.2 and mindful of Article XII
of the Staff Regulations, amended Rule 109.5 and reported to the Assembly
accordingly. The new paragraph (f) thus contradicted resolution 33/119 in
both its letter and its spirit.
42. In paragraph 23 of its 1979 report (A/34/30) the ICSC, in accounting
for the changes introduced, stated that it
"had foreseen the possibility that some special provision would be needed
regarding staff members who had an expectation of receiving the grant under
the existing rule but would no longer be entitled to it under the new rule.
The Commission was informed that the legal advisers of several organizations
had studied the question and come to the conclusion that any entitlement
already earned by a staff member could not be affected retroactively by the
changing of the rule; but the exercise of further entitlements accruing
after the date of the change would be subject to compliance with the new
condition." (My emphasis.)
This statement, however seemingly innocuous, begged a question and concealed
an important fallacy. First, it might well have been that certain staff
members expected to receive the grant, but it was not under the existing
rule but only by virtue of the existing extra-legal practice that they might
have held that expectation. Secondly, exigibility of evidence of relocation
was no "new" condition but one inherent in the very nature of the grant: a
fortiori it could not affect the legal regime under which the grant was
paid, except in so far as it made explicit what had previously been
implicit. The ICSC ended by contradicting its own previous report to the
effect that "the conditions of entitlement to the grant have remained
essentially unchanged since .. . 1951" (A/33/30, para. 179), not to mention
the statement of its own Chairman:[p 427]
"The Commission believed that the repatriation grant should not be paid when
the staff member at the end of his service remained in the place of his last
duty station and accordingly did not incur the removal and reinstallation
expenses which the grant was intended to meet." (A/C.5/33/SR.32, p. 11.)
43. There is often virtue in a change of approach. But a far more serious
aspect of this inconsistency was the way the ICSC acted not only in
contradiction to its own previous view, but ultra vires against the clear
and unequivocal will of the General Assembly. For it defined the contents of
its decisions promulgated on 6 April 1979 under CIRC/GEN/39 as
"modifications to the terms of entitlement to the repatriation grant...
established in pursuance of paragraph 4 of section IV of General Assembly
resolution 33/119". In paragraphs 38 and 39 above I believe I have amply
shown that no such sweeping mandate had been given by the cited text. The
Commission had, above all, no power to make exceptions to the Assembly's
decision, which had been intended to affect all "entitled staff members".
All it possessed was a delegation of power for the limited task of defining,
as I indicated above, the terms of evidence, and all such dele-gations call
for strict interpretation. The Commission apparently relied on some legal
advice but, having received it, it had no power or authority to act the way
it did but should have returned to the General Assembly and requested new
instructions. This it failed to do. The Secretary-General was presumably
aware of this situation. Yet Rule 109.5 (f), voidable from the day it was
issued, remained in force until the General Assembly returned to the matter
at the following session and abolished the provision.
XI. Resolution 34/165 and Its Aftermath
44. Once the General Assembly realized the extent to which the amendments
to Staff Rule 109.5 frustrated the very purpose of the task it had given to
the Commission that had fostered them, it reacted, not surprisingly, to put
an end to an abnormal situation, by adopting on 17 December 1979 resolution
34/165, to take effect as from the beginning of the following month (i.e.,
in 15 days) which happened also to be the beginning of the next calendar
year. Accordingly, the Secretary-General abolished the short-lived Staff
Rule 109.5 (f).
45. Since Mr. Mortished made his claim after that abolition, and hence the
institution of a new rule corresponding to the new resolution of the General
Assembly, the Secretary-General refused him a repatriation grant when he
failed to produce the necessary evidence.[p 428]
XII. The Tribunal’s handling of material questions of law
46. Competent as it is to adjudicate disputes concerning the terms of
appointment and conditions of service of United Nations staff members, the
United Nations Administrative Tribunal has constantly to apply and interpret
United Nations Staff Regulations and Rules. When the General Assembly was
considering the establishment of the Tribunal, the prudent view was
expressed that:
"The Tribunal would have to respect the authority of the General Assembly to
make such alterations and adjustments in the staff regulations as
circumstances might require. It was understood that the tribunal would bear
in mind the General Assembly's intent not to allow the creation of any such
acquired rights as would frustrate measures which the Assembly considered
necessary." (General Assembly Official Records, Fourth Session, Plenary
Meetings, Annex, Agenda Item 44, doc. A/1127, p. 168, para. 9.)
The relevant report of the Fifth Committee adds:
"No objection was voiced in the Committee to those interpretations, subject
to the representative of Belgium expressing the view that the text of the
statute would be authoritative and that it would be for the tribunal to make
its own interpretation." (Ibid.)
Thus this "interpretation" of the Tribunal's responsibility towards the
intent of the Assembly was quasi-unanimous. The present case pre-eminently
calls for examination of the question whether the Tribunal, in Judgement No.
273, took these requirements into account. It may have disregarded them and
thus erred within the sphere of the law it had to apply.
47. The Administrative Tribunal, in Judgement No. 273 shows at various
points its concern with the powers of the General Assembly and the
Secretary-General and their inter-relationship, establishing (in para. III)
the general co-ordinates thereof in terms of Articles 7, 97 and 101 of the
Charter. Subsequently (para. V) it records the basic purpose and scope of
the establishment of the International Civil Service Commission and
recognizes that the "ICSC is not competent to take decisions directly
affecting staff members" (my emphasis).
48. Now, although the Tribunal does not say so in terms, it appears to
suggest (in para. XIV) that the failure of the Assembly to challenge the
formal validity of the Secretary-General's amendments estopped it in some
way from finding them materially defective. But, on the Tribunal's own
showing, it is difficult to see how else the Assembly could have
proceeded.[p 429] The method of passing the relevant part of resolution
34/165 was in fact the least hurtful way in which the Assembly could have
exercised its inherent power of control over the Secretary-General while not
making the strength of its disapproval of the Commission's action too
explicit.
49. I can well appreciate that the Administrative Tribunal might scruple to
suggest that the procedure whereby the ICSC prompted the Secretary-General
to adopt Rule 109.5 (f) was not that laid down in resolution 33/119 — or was
so only in outward form. I can also appreciate the argument that it has to
take Staff Rules as it finds them. But since the rule in question had its
direct origin in a General Assembly resolution and was drafted via powers of
delegation, the Tribunal might have been expected to test its pedigree. In
fact, as all the circumstances surrounding this most unusual case must have
shown the Tribunal, the General Assembly itself disowned its alleged
progeniture.
XIII. Acquired Rights
50. I have no intention to go deeply into the subject of acquired rights. In
truth, any right validly and duly created and acquired under the rules of a
particular legal order may be an "acquired right". The definition of these
rights, or rather the determination of their scope in most areas, had become
increasingly difficult in a world in which mutual rights and obligations are
subjected to frequent changes. In fact, it was always a vexed problem.
However, since the Staff Regulations and the Judgement of the
Administrative Tribunal refer to the subject, it is difficult to avoid it.
It was only natural that Mr. Mortished should have claimed such a title in
order to show that he and other officials belonging to the same category
enjoyed an "acquired right" before the adoption of the new paragraph (f) of
Rule 109.5. This is, however, not the "acquired right" recognized by the
Administrative Tribunal's Judgement (para. XVI).
51. For the Tribunal, as pointed out, recognizes that Rule 109.5 (f) marked
"the first time that a provision of the Staff Rules acknowledged that
entitlement to the repatriation grant might exist without evidence of
relocation being provided" (para. XIII). If that is correct, the clause must
have created that right, in which case the right did not exist before and
the reasoning from 30 years' practice is of very little value; it is reduced
to a merely auxiliary status. If it created the right, and the Tribunal had
found that that right became for Mr. Mortished an acquired right, then the
first text I quoted in paragraph 46 becomes highly relevant.
52. But by any hypothesis, in my view, the finding of an acquired right [p
430] in the present case fails the test. I hope to have shown, in section
VIII above, that actual repatriation, soon extended to mean actual
relocation in a country other than that of the last duty station, was a
basic condition of entitlement to receive repatriation grant.
53. The Secretary-General's abstention from demanding evidence of relocation
throughout 30 years of paying repatriation grants amounted to a
discretionary waiver — defensible in the sense that he was dealing with
responsible ex-officials. However, this practice did not give rise to any
acquired right, because relocation remained an essential condition, and
evidence thereof remained exigible, hence the expectations the practice may
have aroused were not compatible with the basic nature of the institution.
A misconception therefore underlay the initiative of the ICSC which resulted
in the introduction of Staff Rule 109.5 (f). Indeed the Secretary-General
showed that he recognized as much, when he told the Tribunal:
"The General Assembly's authority under Article 101 of the Charter cannot
be undermined by so broad a definition of 'acquired rights' as to encompass
eligibility requirements for a repatriation grant." (Respondent's Answer,
para. 26.)
No sooner was the rule cancelled than the inherently discretionary
character of the waiver would have become evident, had not clause (d)
immediately withdrawn the waiver altogether.
54. Apart from this, the discretion of the Secretary-General illustrated by
Staff Rule 104.7 (c) (quoted above) remained in force, thus enabling him to
withdraw entitlement to the grant from specifically defined staff members.
This continued to be a serious obstacle to the creation of an "acquired
right". In my view, paragraph XVI of Judgement No. 273 of the United Nations
Administrative Tribunal erred on the relevant provision in particular as
concerned the will of the General Assembly.
55. While the Court admits (para. 74) that there may be room for more than
one view on the question as to what amounts to an acquired right and whether
or not Mr. Mortished had one, the whole field of acquired rights is one
which the Opinion deliberately refrains from entering. However, the very
basis of the whole proceedings before the Tribunal and the Court is an
alleged injury sustained as the result of disregarding an acquired right by
the application of a Staff Rule which reflected a resolution of the General
Assembly. If an injury is produced through the action of an organ of the
United Nations, the relevant provision of the Charter is undoubtedly
involved, hence also the need to deal with the question of acquired rights
in a way which would not imply retrial of the case. One can therefore hardly
accept the Court's approach, which amounts to an attempt to identify two
different proceedings: "retrial" and "review", notwithstanding the Court's
being sometimes "called upon to review the actual substance of the [p 431]
decision", particularly in cases of this kind (I.C.J. Reports 1973, p. 188
at para. 48). In the present instance, the Court has refused even to
consider whether the implementation of a law-making organ's decision in a
way contrary to its will may really result in the creation of an "acquired
right". To my mind, especially when the decision is implemented in a manner
contrary to the specific purposes for which the affected institution was
established from the outset — and which has never basically changed — no
such creation is possible, and this should have been said.
56. The further issue of retroactivity — on which there should be no doubt —
does not arise, for the simple reason that those who were entitled to
benefit from the provisions of Rule 109.5 (f) did so as long as it was in
force, i.e., until 1 January 1980. All others fell under the regime of the
Staff Rule which was the outcome of resolution 34/165 of the General
Assembly. Though it may be argued that entitlements accrued to Mr.
Mortished in the course of the many years of his service in the United
Nations, yet he became a beneficiary only on separation, and Mr. Mortished
was separated from the service only in April 1980. Moreover (it is worth
recalling) the benefit is not simply one "accruing to a staff member for
services rendered before the entry into force of an amendment" (cf. UNAT
Judgement No. 82, para. VII) but is linked with the obligation to
"relocate", i.e., is intended to make up for the hardship caused by the
"translocation" which could occur only at the time of separation. The right
to payment therefore had no retroactive aspect.
57. As to excess of jurisdiction, I do not believe that the Administrative
Tribunal could be held to have exposed itself to this charge. Relying as it
did on the acquired right it held to exist in the case of Mr. Mortished, the
Tribunal was careful not to challenge the validity or legality of a General
Assembly resolution. In sum, I agree with the Court that there is no ground
for finding that the Tribunal committed an excess of jurisdiction.
58. To conclude my considerations, I regret that a series of errors has been
committed — in particular an error on a question of law relating to the
provisions of the Charter of the United Nations —, including a misreading by
the International Civil Service Commission of the unequivocal will of the
law-maker (the General Assembly of the United Nations) and of its own terms
of reference, and the recognition of allegedly created "acquired rights".
This led to the emergence of a rule which was ill-conceived and to which the
law-maker, once apprised of it, put a rapid end.
XIV. General Considerations
59. Having opened my comments on the present case by some reflections on
the resolution of disputes within international organizations, I wish to
conclude them on the same theme in regard to the functions of administrative
tribunals. In fact, the Court has from the very outset been closely
connected with the subject and expressed its views on the nature [p 432] and
propriety of the functions which might be exercised by the various bodies
involved. Having regard to the Court's utterance of 1954, the Statute of the
United Nations Administrative Tribunal was amended and the General Assembly
set up the subsidiary organ known as the Committee on Applications, endowing
it, not with judicial, but with "screening" functions. The Court has had
occasion to comment on this procedure. In 1956 it dealt with Article XII of
the Statute of the International Labour Organisation Administrative Tribunal
and at the same time could consider in such a context whether being "bound
to remain faithful to the requirements of its judicial character" (I.C.J.
Reports 1956, p. 84), its own Statute and functions stood in the way of its
complying with a request for an opinion. It was only in 1973 that the Court
finally had to contemplate the implications of participating in the
procedure instituted by Article 11 of the Statute of the United Nations
Administrative Tribunal. On that occasion in the Fasla case, it again bore
in mind the permissive wording of Article 65, paragraph 1, of the Statute
and its entitlement, in certain circumstances, to refuse to answer
questions put to it. Much the same general misgivings were expressed as in
1956; but more specific objections were raised against the mysterious
workings of the Committee. The Court went on, however, to stress in an
obiter dictum the necessity for consistency in the standards applied by the
Committee in assessing applications, especially as between those emanating
from staff members or from other sources. In sum, the Court in 1973 complied
with the request notwithstanding the grave doubts entertained by many, if
not all, of its Members in regard to the basically hybrid nature of the
system and the manner of its implementation.
60. However, the present case, as the Advisory Opinion stresses, differs
from the 1973 case in that the application has been made by a member State,
so that the questions of equality of the parties and the consistency of the
standards applied by the Committee arise in acute form. Moreover, while in
the Fasla case the transcript of the proceedings before the Committee was
not available to the Court, in the present one it is, but it reveals, as
indicated in the Advisory Opinion, such irregularities as the Court could
not possibly ignore. It is thus impossible not to have qualms regarding the
ostensibly unevenhanded nature of the whole procedure both in theory and in
practice. In fact the review procedure contains a built-in dilemma. This
awkward fact was mildly alluded to by the Court in 1973, when it indicated
that it did "not consider the review procedure provided by Article 11 as
free from difficulty" (I.C.J. Reports 1973, p. 183 at para. 40). I wish to
recall that, while sharing the views of the Court at the time, I went much
further, stating:
"There would, perhaps, be little point in adverting to this problem if the
sole choice for the future appeared to lie between judicial control of the
kind exemplified by the present proceedings and no judicial control at all."
(Ibid, p. 214.)[p 433]
What I had in mind was a serious improvement of the existing machinery and
its revision so that it would "be free from difficulty and more effective".
I saw "no compelling reason, either in fact or in law, why an improved
procedure could not be envisaged" (ibid.). In the light of the experience in
the present case, the need for this improvement has been amply confirmed. I
am gratified to note that the Court, in the Advisory Opinion, has made some
comments to the same effect. In reiterating my views, I feel that the
procedure is in need of some radical change.
61. In the same context, nine years ago, I made another observation
concerning the "discrepancy between the two systems of review: one
established by Article XII of the Statute of the ILO Administrative
Tribunal and the other by Article 11 of that of the United Nations
Administrative Tribunal" (ibid.). I expressed my regret on account of the
divergences which existed in the nature of the protection afforded the
staff members of different international organizations. Indeed the situation
created by this discrepancy is one which should raise very serious
reservations, for it has no rational foundation. Almost all the
organizations which accepted the jurisdiction of the ILO Administrative
Tribunal belong to the United Nations family and it is difficult to explain,
still less to justify, why the protection offered to one group of officials
should be different from that enjoyed by others. I therefore pleaded for
greater co-ordination and uniform procedures in both cases. Can there be any
doubt that the personnel employed by the United Nations and the many other
organizations belonging to one family in the international civil service
should be subject to a uniform regime and the same legal protection? The
establishment of the International Civil Service Commission with the task of
elaborating a uniform system and status embracing the personnel of the
international organizations, the not-infrequent transfer of persons from one
organization to another, are important factors indicating the trend in the
same direction of uniformity. This need is further stressed by two
contradictory opinions handed down by the two tribunals on the very same
subject, a danger which may increase with the passage of time.
62. I have felt, moreover, that the goal of equal protection for all members
of the international civil service could best be achieved in the long run if
the tribunals were fused into one institution, located so as to be easily
accessible, which would take under its wing all persons employed by
international organizations of the United Nations family, and possibly
others. I find confirmation in the suggestion of the General Assembly that
the Secretary-General and the Administrative Committee on Co-ordination
should "study the feasibility of establishing a single administrative
tribunal for the entire system" (cf. General Assembly resolutions 33 /119
and 34/438). The work on the subject was intended to afford an opportunity
also to study possible unification of the procedures of the United Nations
Administrative Tribunal and the ILO Administrative Tribunal [p 434] and to
remove certain imperfections in the present Statutes of both, with a view to
strengthening the common system.
63. In compliance with these resolutions, consultations took place between
the representatives of the organizations which have accepted the
jurisdiction of one or other of the two tribunals. The idea itself is not
new and was pointed out by the first President of the Administrative
Tribunal of the United Nations, Mrs. S. Bastid. It was in fact to be
expected that the coming into existence of the United Nations would
establish a unique jurisdiction, but this did not happen.
64. These consultations and the reports prepared indicate what are alleged
to be serious difficulties in the establishment of a single tribunal, and
the establishment instead of "some form of joint machinery" was suggested. I
am confident, however, that a harmful tendency leading to the multiplication
of organs entrusted with similar or even identical functions and the growth
of international bureaucracy will be arrested. Without entering into the
sphere of practical considerations which it would be improper for me to
embark upon, I am of the view that one administrative tribunal could really
solve the problems which face all organizations, even those which do not
come within the United Nations system. It would be one of the practical
outcomes of the guiding idea which led to the establishment of the
International Civil Service Commission.
65. Here, then, I maintain my views expressed nine years ago, and enlarge
upon them in the light of subsequent experience: suggestions concerning
important changes in the procedure and guarantees, the eventual fusion of
tribunals. All this in order to establish a sound, properly functioning
system which would secure the effective administration of justice in
accordance with universal standards. It may be timely, on that occasion, to
review and consolidate the internal law of international organizations in
view of the conflicts and inadequacy of a number of regulations and rules
in the systems.
(Signed) Manfred Lachs.
[p 435]
Dissenting opinion of judge Morozov
I voted against the reasoning and the operative part (Nos. 1, 2 A and 2 B)
of the Advisory Opinion given by the Court at the request of the Committee
on Applications for Review of Administrative Tribunal Judgements, relating
to Tribunal Judgement No. 273 of 15 May 1981, for the following reasons.
1. The General Assembly in 1955 (resolution 957 (X)), changed the text of
Article 11 of the Statute of the Tribunal and authorized the Committee on
Applications for Review of the Judgements of the Tribunal to request the
International Court of Justice to give an advisory opinion when the
Committee has found a "substantial basis" for an objection that the Tribunal
"has exceeded its jurisdiction or competence... or has erred on a question
of law relating to the provisions of the Charter of the United Nations . .
.".
During the discussions on this resolution many of the Members of the United
Nations strongly objected to the procedure suggested for review of the
judgements on the grounds that it was incompatible with the competence
provided for in Article 65 of the Statute of the Court which is an
inseparable part of the United Nations Charter. Some of them stressed that
such a procedure undermined the cornerstone of the Court's Statute, which
provided that only States could be parties before the Court, but not private
individuals.
It was also observed that acceptance of this resolution would unavoidably
lead the Court to consider the merits of the case in which one party is the
Secretary-General of the United Nations and the other party a private
person. It was also said that it is impossible to answer the question
whether the Tribunal has exceeded its jurisdiction, or has erred on a
question of law, without judicial deliberation on the merits of the case.
In the General Assembly on 8 November 1955 the resolution was not supported
by 30 delegations out of 57 (27 to 18 with 12 abstensions):
In favour: Argentina, Bolivia, Brazil, Canada, Chile, China, Colombia, Costa
Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Honduras, Iraq,
Israel, Lebanon, Liberia, Pakistan, Panama, Paraguay, Philippines, Thailand,
Turkey, Union of South Africa, United Kingdom of Great Britain and Northern
Ireland, United States of America, Venezuela.
Against: Belgium, Byelorussian Soviet Socialist Republic, Czechoslovakia,
Denmark, Egypt, India, Indonesia, Netherlands, Norway, Poland,[p 436] Saudi
Arabia, Sweden, Syria, Ukrainian Soviet Socialist Republic, Union of Soviet
Socialist Republics, Uruguay, Yemen, Yugoslavia.
Abstaining: Afghanistan, Australia, Burma, Ethiopia, Greece, Guatemala,
Haiti, Iran, Luxembourg, Mexico, New Zealand, Peru.
It followed as a consequence that the procedure involving the Court was not
used for 18 years, and it was only in 1973 that the first request to the
Court to give an advisory opinion was presented by the Committee for Review
(in the case Fasla v. the Secretary-General), and for the second time only
after eight more years (in the current case).
I would like to recall that in 1973 I voted against the Advisory Opinion of
the Court in the so-called Fasla case, and presented a dissenting opinion,
in which it was pointed out that despite resolution 957 (X) I had voted
against the Opinion, without making any attempt to revise the
above-mentioned resolution (because in any case this is not a function of
the Court).
2. But the competence of the Court and its judicial function should be based
exclusively on the Charter of the United Nations and the Statute of the
Court, which is an integral part of it.
To give or not to give an advisory opinion on a request of any kind is the
discretionary right of the Court, as laid down in paragraph 1 of Article 65
of the Statute "The Court may give an advisory opinion ..." (emphasis
added).
In accordance with Article 34 of the Statute "Only States may be parties in
cases before the Court"FN1 The situation which the Court faces in the
current case had as a matter of principle the same character as that in the
1973 case, and the Court has made more than a dozen references to that case.
---------------------------------------------------------------------------------------------------------------------
FN1 I.C.J. Reports 1973, pp. 134-138, and I.C.J. Reports 1980, pp. 121-198.
--------------------------------------------------------------------------------------------------------------------
The Court is again in substance requested to undertake a judicial review of
a Judgement of the Tribunal in which one party is a private person and the
other party is the Secretary-General "the chief administrative officer of
the [United Nations] Organization".
The Court has stated (para. 58) that it:
"should not attempt by an advisory opinion to fill the role of a court of
appeal and to retry the issues on the merits of this case as they were
presented to the Tribunal".
It has also been said that the intention of the Court is only to render some
assistance to the General Assembly; but in reality the deliberation on the
current case is a kind of surrogate of judicial deliberation, contrary to
the Charter of the United Nations and the Statute of the Court relating to
its advisory function.
3. Inasmuch as the majority of the Court has decided in paragraph 1 of [p
437] the operative part of the Opinion, taking into account all the
circumstances mentioned in the reasoning part of the Opinion, to comply with
the request for advisory opinion, I am compelled to turn to the substance of
the reasoning part of the Opinion, as well as paragraphs 2 A and 2 B of its
operative part, without prejudice to my position, which I have expounded in
Fasla's case in 1973 as well as later in the case on the request of the WHO
to give an advisory opinion in 1980, for the reasons expressed in my
dissenting opinions which I continue to support.
4. I would like to be excused from analysing the whole collection of
arguments used by the Tribunal, and later by the Court, because all of them
are based on the same wrong presumptions.
Therefore, I limit myself only to certain remarks, which, it seems to me,
are of really decisive significance.
The Court has accepted once more a request for advisory opinion from the
Committee on Applications for Review of Administrative Tribunal Judgements,
and has thus not only repeated the mistake made in 1973 (in the so-called
Fasla case), but has made new serious legal mistakes.
In the current case the Court, like the Tribunal, in fact did not take due
account of the legal meaning of General Assembly resolution 34/165 of 17
December 1979, and in this way has acted contrary to the sovereign right of
the Assembly, established in Article 101, paragraph 1, of the Charter, to be
the exclusive organ of the United Nations for the establishment of
regulations for the appointment of the staff of the United Nations.
Reservations were made in the Advisory Opinion and earlier by the Tribunal
in its Judgement that they allegedly did not deny this right of the General
Assembly, and resolution 34/165 as it is. But such reservations could not
disguise what the Tribunal and the Court have done in reality (paras. 49,
50, 73-75).
5. The text of the question presented by the Committee on Applications for
Review to the Court is quite clear:
"Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station?"
The answer to the question could easily be found in the text of the
above-mentioned resolution of the Assembly:[p 438]
"effective 1 January 1980 no staff member shall be entitled to any part of
the repatriation grant unless evidence of relocation away from the country
of last duty station is provided" (emphasis added).
Is there any need to point out that the word "no" in this context has only
one meaning - "nobody" or that the words "effective 1 January 1980" can have
no meaning other than that, as from that date, the resolution has "immediate
effect" for all members of the staff without exception?
6. But in paragraph 47 of the Opinion we read:
"The Court has therefore to consider whether it should confine itself to
answering the question put; or, having examined the question, decline to
give an opinion in response to the request; or, in accordance with its
established jurisprudence, seek to bring out what it conceives to be the
real meaning of the Committee's request, and thereafter proceed to attempt
to answer rationally and effectively 'the legal questions really in issue'
(I.C.J. Reports 1980, p. 89, para. 35). As will be explained below (para.
55), it might be possible to give a reply to the question on its own terms,
but the reply would not appear to resolve the questions really in issue, and
it is also doubtful whether such a reply would be a proper exercise of the
Court's powers under Article 11 of the Tribunal's Statute." (Emphasis
added.)
It is necessary first to say that Article 11 of the Tribunal's Statute could
not confer any kind of power on the Court. The sole sources of the powers of
the Court are the Charter of the United Nations and the Statute of the
Court. Thus this argument is not a legal one, and is used among the other
unconvincing arguments for justification of the view that the Court
allegedly has a right, under pretext of an Advisory Opinion, to avoid
giving an answer to the request presented, but to reformulate it completely;
and after that to reply to its own question.
In paragraph 55 of the Opinion also all arguments related to the so-called
reformulation of the request confirm that there is no legal basis for the
situation in the current case, in which the request for advisory opinion has
completely disappeared.
Secondly, in paragraph 55 of the Opinion we read:
"Thus the decision was not that resolution 34/165 could not be given
immediate effect but, on the contrary, that the Applicant had sustained
injury precisely by reason of its having been given immediate effect by the
Secretary-General in the new version of the Staff Rules which omitted Rule
109.5 (f)." (Emphasis added.)
And after this discovery, the Court in the same paragraph, contrary to the
substance of the matter, continues:
"The judgement of the Tribunal in no way seeks to call in question the legal
validity and effectiveness of either resolution 34/165 or the Staff Rules
made by the Secretary-General for its immediate implementation." (Emphasis
added.)
But that statement could only be considered as an additional attempt to give
to the judgement of the Tribunal, and also to the real meaning and effect of
the Advisory Opinion of the Court, some appearance of legal reasoning.
In pursuit of this wrong approach, the Court undertook a long excursion into
the field of what it imagines was the way of thinking of the members of the
Committee for Review, before and in the process of their voting on the
request presented officially to the Court, as well as what it imagines was
the way of thinking of the delegations of the Members of the General
Assembly in the process of elaboration and acceptance of resolution 34/165,
and the way it was implemented. This excursion has led the majority of the
Court to consideration of a large number of questions related to the
activity of the General Assembly, and various organs of the United Nations,
and particularly of the activity of the Secretary-General, which does not
relate to the real legal issue of the request presented to the Court.
7. On the basis of this, to put it mildly, very unstable foundation, the
Court continues to advance its allegations that it has acted in accordance
with "established jurisprudence".
In justification of its position the Court has particularly used references
to the Advisory Opinion of the Court in 1980 given at the request of the WHO
FN1 in connection with the relocation of its regional office from Cairo.
---------------------------------------------------------------------------------------------------------------------
FN1 See also more detailed reasoning related to the 1980 case submitted to
the Court in my dissenting opinion I.C.J. Reports 1980, pp. 190-197.
---------------------------------------------------------------------------------------------------------------------
It is well known that in that case the Court did not give a precise answer
to the request, but substituted its own text for the request made. This was
done also under the pretext that it should help the Court to understand
correctly the real legal meaning of the request of the WHO The result of the
implementation of such a method is well known: in substance no answer to the
legal question presented to the Court was ever given in its advisory
opinion, which was adopted on the basis of a method which the Court now
continues to consider as "established jurisprudence".
8. The repeated attempts of the majority of the Court to canonize the right
to reformulate the request presented for advisory opinion, have created in
general the dangerous situation in which the Court allegedly could
voluntarily intervene in any question related to the constitutional rights
and the activity of any of the main bodies of the United Nations and
specialized agencies, or any problem of the interrelations between States,
under the pretext of receiving a request for advisory opinion. And this is
what has happened, in the case of the WHO in 1980 particularly.[p 440]
The competence of the Court in respect of advisory opinions, in accordance
with Article 65 of its Statute, is strictly limited. If the Court considers
that some request has no real legal meaning, then it is the Court's right to
reject the request, and that is all. But to substitute for the request its
own text is completely unacceptable from the point of view of its Statute.
It is necessary to stress the fact that throughout the long chain of its
argument the Court avoided, as the Tribunal also had done earlier, giving
its conclusion on the real decisive legal questions, or distorted their
meaning.
9. In particular, the Court did not consider the nature of the right to a
grant on repatriation or relocation. It is quite clear that the right to a
repatriation grant was never considered as a duty of the United Nations to
pay for nothing, but payment was only made in the case of real repatriation,
or relocation. Any attempt to separate the legal concept of payment from the
legal nature of repatriation or relocation has no basis in law or logic.
In short, how could one possibly consider that the words "unless evidence
of relocation... is provided" are in any way equivalent to some such words
as: "Every staff member of the United Nations has the right to be paid for
repatriation or relocation independently of whether or not he is repatriated
or relocated away from the country of his last duty station"?
And yet it is on this tacit and incorrect understanding that the words
quoted above are equivalent to such a meaning that one of the general
approaches of both the Tribunal and the Court is based. It is however simply
not possible, even if one tries to read between the lines of General
Assembly resolution 34/165, to find that the Assembly would have regarded
the two expressions as synonymous. And finally if, contrary to all legal and
logical arguments, it could be contended that the two expressions are
equivalent or synonymous, how can it be explained that this same approach
is not implemented also for staff members who were citizens of the country
of their last duty station?
10. No decision to abandon the legal and literal meaning of the term
"repatriation" was ever taken by the General Assembly which, under Article
101, paragraph 1, of the Charter is the only body authorized to establish
regulations relating to the appointment (ergo, to the conditions of work) of
United Nations staff members — regulations which are obligatory for the
Secretary-General.
All references in the Tribunal's Judgement, as well as in the Advisory
Opinion of the Court, to the long-followed practice whereby repatriation
grant was paid to members of staff without presentation of evidence of
repatriation or relocation could add nothing in favour of the Judgement of
the Tribunal and Advisory Opinion of the Court. As has been said, the duty
to present evidence does not in any way nullify or limit the grant for
repatriation or relocation: it should be considered only as one of the [p
441] elements of a purely technical character for the implementation of the
grant.
Contrary to that, and to General Assembly resolution 34/165, the Tribunal
adopted an approach, the consequences of which were equal to an attempt to
redraft the resolution in such a way that the word "no" in this context for
the Tribunal, meant nothing, and the text allegedly should be taken as
reading "no member of the staff appointed after 1 January 1980".
Is it necessary to demonstrate that no kind of wrong or illegal practice of
the executive mechanism could be considered as a source for creation of
legally recognized rights, and therefore could not generate any so-called
acquired right within the meaning of Staff Regulation 12.1 (Chap. XII —
General Provisions)?
The Tribunal avoided giving a direct answer to this problem and said that
"in view of the particular situation of the Applicant, the Tribunal finds
that it is not required to adjudicate that question in abstracto" (para.
VIII).
But in the following paragraphs of its Judgement, under the pretext that it
was analysing the particular situation relating only to the Applicant, the
Tribunal in reality came to far-reaching conclusions, going beyond the
specific case, which distorted the definition of the grant for repatriation
or relocation as established for members of the United Nations Secretariat
by the General Assembly in abstracto as well as in the specific case.
In the following paragraphs, contrary to its own general statement, and
under the pretext that the approach of the Tribunal only concerns the
Applicant, the Tribunal used for that purpose a great number of
unconvincing arguments.
11. The general approach of the Tribunal is based on an artificial
separation of its arguments from the nature of the repatriation or
relocation grant as it is and was established by the General Assembly.
The result of this wrong approach leads the Tribunal to the conclusion that
the above-mentioned payment is allegedly part of the general "benefit" or
acquired right of members of the staff taken independently from and
allegedly not bound up with the real legal nature of the right. In support
of this reference was made to Annex IV to the Staff Regulations.
In paragraph XV of the Judgement we read:
"Consequently, the link established by the General Assembly and the
Secretary-General between the amount of the grant and length of service
entitles the Applicant to invoke an acquired right, notwithstanding the
terms of Staff Rule 109.5 which came into force on 1 January 1980 with the
deletion of subparagraph (f) concerning the transitional system... it is
incumbent upon the Tribunal to assess the consequences of any failure to
recognize an acquired right."
But the Tribunal passed over an important fact, namely that the refer [p
442] ence to length of service as stated in Annex IV to the Staff
Regulations is related only to calculation of the grant and could not be
used as a legal argument for the legal definition of the right as it is, or
for recognition of it as an acquired right within the meaning of Staff
Regulation 12.1.
12. One of the main mistakes in the Judgement is an assertion by the
Tribunal that the provision relating to presentation of evidence of
repatriation or relocation provided in General Assembly resolution 34/165
allegedly changed the legal character and real nature of the right.
Let us therefore turn for a moment to resolution 33/119 of 19 December 1978,
when the General Assembly decided
"... that payment of the repatriation grant to entitled staff members shall
be made conditional upon the presentation by the staff members of evidence
of actual relocation, subject to the terms to be established by the
Commission" (the International Civil Service Commission).
Thus in 1978 already the Assembly dotted the i's and crossed the t's, and
correct implementation of its resolution should have led to the
establishment of due order relating to the payment of the grant on
repatriation or relocation.
What happened thereafter? The text of resolution 33/119 was wrongly
implemented, with the purpose of maintaining the illegal practice of
payment of repatriation grant without factual repatriation or relocation,
for members of staff who were in the service of the United Nations before 1
July 1979.
How did this happen? Contrary to the letter and the spirit of resolution
33/119 of 19 December 1978, the words in paragraph 4 of the resolution of
1978 — "subject to the terms to be established by the Commission" together
with the words in paragraph 12: "Decides that the above decisions shall
enter into effect on 1 January 1979, except where otherwise specified" —
were wrongly presented as a legal basis for such approach.
In reality, paragraph 4 meant that the Commission (ICSC) should settle only
the details of what kind of evidence of repatriation should be necessary to
be presented by members of staff entitled to the grant in accordance with
the resolution of the General Assembly of 19 December 1978; but the
Commission never was authorized to overrule its substance and to establish a
so-called transitional period, because this was senseless as a matter of
substance in the light of the letter and spirit of resolution 33/119.
However, contrary to that, there was included in the Staff Rules (Rule
109.5) a paragraph (F) which distorted the real meaning of paragraph 4 of
General Assembly resolution 33/119 by excluding from the implementation of
that resolution all members of the Staff who in reality did not repatriate
or relocate, from the country of their last duty station.[p 443]
The observation in paragraph 71 of the Opinion that "Paragraph (f) was in
conformity with the text prepared by the International Civil Service
Commission" has no legal basis, because, as has been said, the Commission
also had no right to intervene in the interpretation of the substance of a
resolution of the General Assembly.
This happened for a short period before the opening of the thirty-fourth
session of the General Assembly meeting in September 1979. The
Secretary-General in 1978 was only invited "to make such consequential
changes as are necessary in the Staff Rules and to report thereon to the
General Assembly at its thirty-fourth session in accordance with the
provisions of regulation 12.2 of the Staff Regulations".
As is well known, the above-mentioned paragraph (f) existed only a short
time and was never confirmed by the General Assembly, and was excluded from
the Rules by the Secretary-General in December 1979 in accordance with the
confirmation by resolution 34/165 of the duty to present evidence of
repatriation or relocation, thus repeating the same position which the
General Assembly had taken up in 1.978.
13. Now let us consider once more the real meaning of this former
short-lived paragraph (F), because the wrong interpretation of it
constitutes one of the key questions in the whole construction of the
Judgement of the Tribunal as well as the Advisory Opinion of the Court.
As has been said, paragraph (f) provided for the exclusion of a particular
group of staff members from the requirement of presentation of evidence of
relocation; but this paragraph did not provide that the nature and character
of the right to repatriation, as it is, was changed. Nor did it provide that
a staff member should be paid without relocation from the country of his
last duty station, if no actual relocation took place. In this context the
former paragraph (f) cannot be interpreted as meaning that the repatriation
or relocation grant itself, and the requirement of presentation of evidence
of relocation, are somehow equivalent or synonymous, as has already been
observed. Paragraph (f) at the last count was only used as a pretext for
illegal payment for nothing.
I repeat that the obligation to present evidence of repatriation or
relocation is only a technicality, with the purpose of ensuring that no one
should be able to abuse the confidence of the United Nations and receive
payment contrary to the legal nature of the grant. For the same reason, any
consideration of the question of the so-called retroactivity or
non-retroactivity of the 1979 resolution of the General Assembly has no
legal meaning, because the right to the grant on repatriation or relocation,
as it is, has been neither denied nor changed.
The other approach, to my regret, is an attempt to ignore real facts.
14. Reference has been made by the Tribunal to contractual and other
obligations to the Applicant created at the time of the appointment of the
Applicant but this is also unconvincing, and does not relate to the question
of legal nature of the right of repatriation or relocation. And the United
[p 444] Nations never undertook the obligation, at the moment of appointment
of the Applicant, to pay the grant without factual repatriation or
relocation.
If the applicant had decided not to stay in Switzerland, his last duty
station, but to repatriate or relocate to some other country, he would of
course have the full right that in the process of calculation of the size of
the grant there should be taken into account the "years of past service in
another international organization". So these references of the Tribunal
could add nothing to the matter.
It is necessary to add that "the words 'contract' and 'terms of
appointment' include all pertinent regulations and rules in force at the
time of alleged non-observance, including the staff pension regulations"
(UNAT Statute, Art. 2).
It is important to stress that the pertinent provision of the regulations in
force in April 1980, the time when the Applicant separated from United
Nations service, was paragraph (d) of Rule 109.5:
"payment of the repatriation grant shall be subject to the provision by the
former staff member of evidence of relocation away from the country of last
duty station. Evidence of relocation shall be constituted by documentary
evidence that the former staff member has established residence in a country
other than that of the last duty station."
These regulations were correctly based on the text of resolution 34/165
unanimously adopted by the General Assembly in accordance with Article 101,
paragraph 1, of the United Nations Charter: "The staff shall be appointed by
the Secretary-General under regulations established by the General
Assembly."
Conclusion
A. For all these reasons it is impossible to accept the assertion of the
Tribunal that"... the stand taken by the Respondent has had the effect of
depriving the Applicant of payment of the repatriation grant..." and
therefore it "... finds that the Applicant sustained injury as the result of
a disregard of Staff Regulation 12.1 and Staff Rule 112.2 (a)".
B. Instead of being guided by the resolutions of the General Assembly, and
by its own Statute as adopted by the General Assembly, and by the provisions
of the Charter, which ultimately is the only source of law for the Tribunal,
Judgement No. 273 of the Tribunal demonstrates an attempt to give legal
validity to its unconvincing arguments and conclusions, and [p 445] clearly
was not warranted in determining that resolution 34/165 of 17 December 1979
could not be given immediate effect.
C. In reality the Judgement was directed not against the Respondent — the
Secretary-General — but against General Assembly resolution 34/165, against
its letter and spirit.
Therefore the significance of the Judgement goes far beyond the specific
case, and has a meaning of principle also for all the future activity of the
Tribunal, and moreover for its correct interrelations with the General
Assembly.
D. In accordance with its Statute "The Tribunal shall be competent to hear
and pass judgement upon applications alleging non-observance of contracts of
employment of staff members of the Secretariat of the United Nations or of
the terms of appointment of such staff members". But acting contrary to that
provision, the Tribunal exceeded its competence, and in fact rejected
resolution 34/165 of the General Assembly, that "effective 1 January 1980 no
staff member shall be entitled to any part of the repatriation grant unless
evidence of relocation away from the country of last duty station is
provided".
The Tribunal under the pretext of interpretation of the 1978 and 1979
resolutions of the General Assembly erred on a question of law relating to
the provisions of the Charter of the United Nations, as well as exceeding
its jurisdiction or competence, when it found that the Applicant, who
separated from the United Nations in April 1980, allegedly has the right to
payment of the repatriation grant although the Applicant has continued to
stay up to the present time in the country of his last duty station.
E. The Advisory Opinion of the Court misses the really decisive point of the
case, and denies that the Tribunal did commit the violations mentioned in
paragraphs A, B, C and D of this dissenting opinion.
Therefore I could not, to my regret, consider the Advisory Opinion as a
document which coincides with my understanding of an implementation of
international justice.
(Signed) Platon Morozov.
[p 446]
Dissenting opinion of judge El-Khani
[Translation]
To my great regret I find myself obliged to dissociate myself from the
Advisory Opinion which the Court has seen fit to give in the present case,
because I consider that, for reasons of principle bound up with the very
nature of the Court's jurisdiction, and having regard to the procedural
irregularities committed by the body which referred the case to it, the
Court, in this instance, ought to have refused to comply with the request
for an advisory opinion.
A. Reasons deriving from the Role of the Court
The Court decided by a majority to comply with the request submitted by the
Committee on Applications for the Review of Administrative Tribunal
Judgements (hereinafter called "the Committee"). In the exercise of the
discretionary power conferred upon it by Article 65 of its Statute, the
Court agreed to give an advisory opinion on the question laid before the
Committee by the United States of America, as to whether the United Nations
Administrative Tribunal (hereinafter called "the Tribunal") was "warranted"
in Judgement No. 273 in the case Mortished v. the Secretary-General of the
United Nations, a question which the Committee made its own.
Thus the Court was indirectly led to study a case opposing a United Nations
staff member to the Secretary-General, within the framework of the review of
a judgement rendered by the Tribunal. But I believe, to begin with, that the
Court's principal task should be to concern itself with cases between
States, which alone may appear before it (Statute, Art. 34) whereas private
individuals have no access.
Moved by a concern for equality which was lacking within the Committee, the
Court has not held any hearing in the present case; otherwise counsel for
Mr. Mortished would have had to plead before the Court.
It is true that, by virtue of Article 96 of the Charter of the United
Nations and Article 65 of the Statute of the Court, duly authorized organs
of the United Nations may request an advisory opinion of the Court. The
Committee on Applications for Review is one of those organs, by virtue of
Article 11, paragraph 4, of the Statute of the Administrative Tribunal; but
is not this an indirect way of giving access to the Court to any staff
member concerning whom the Committee, for one reason or another, might
consider that there was a “substantial basis” for an application? Besides,
is there not a risk that such a discretionary power may be used without
regard to law, given the political nature and the composition of the
Committee? I [p 447] do not believe that such unlimited access to the Court
entered into the intentions of those who, in 1955, sought to widen the
possibilities of challenging Administrative Tribunal judgements.
Furthermore, the Advisory Opinion, in paragraph 26, mentions the following
point raised by the Government of the United States of America in its
written statement:
"The Assembly appears to have decided that the United Nations and the
General Assembly will not be bound by an adverse Administrative Tribunal
judgement with respect to which substantial legal doubt exists [that is to
say, if objection has been taken to the judgement, and the Committee has
found that there is a substantial basis for the objection] unless the Court
sustains the Administrative Tribunal on the law of the matter."
I find that to venture upon such a statement involves entering into the
future intentions of each member State of the United Nations or claiming to
speak in the name of the General Assembly. I do not think that the Court,
whose jurisdiction, powers and functions are governed by its Statute and
the Charter of the United Nations, may base its decisions on considerations
of probability or on future intentions as yet unexpressed.
In its Advisory Opinion, the Court, basing itself on longstanding
jurisprudence, refutes the argument of the Government of the United States
of America; it concludes however that:
"even if its giving of an advisory opinion were legally indispensable for a
judgement of the Administrative Tribunal to become final ... this
consideration should not prevent it from maintaining unimpaired the
discretionary character of its exercise of advisory jurisdiction" (ibid.).
In my view the Court should in the circumstances have made use of the
discretionary power conferred upon it by Article 65 of its Statute and
refused to give an advisory opinion.
B. The Question of the Irregularities
The Court's Advisory Opinion explicitly and clearly enumerates in great
detail the irregularities marring the Committee's request concerning the
Tribunal's Judgement No. 273. Despite the fundamental nature of these
irregularities, which according to the Advisory Opinion almost constitute
"compelling reasons" for not entertaining the request, the Court has decided
to comply with it in order "to assist the General Assembly if it should
decide to reconsider its present procedure related to review of the
Administrative Tribunal's Judgements" (Opinion, para. 79).
Earlier the Opinion had stated:[p 448]
"Of course the irregularities which feature throughout the proceedings in
the present case could well be regarded as constituting 'compelling
reasons' for a refusal by the Court to entertain the request. The stability
and efficiency of the international organizations, of which the United
Nations is the supreme example, are however of such paramount importance to
world order, that the Court should not fail to assist a subsidiary body of
the United Nations General Assembly in putting its operation upon a firm and
secure foundation." (Opinion, para. 45.)
While agreeing that the stability and efficiency of international
organizations must be maintained and strengthened, that there must be
closer co-operation to that end among the various organs and agencies of the
United Nations family and that it is the duty of the Court, as the
Orga-nization's principal judicial organ, to assist in the work of placing
the operation of these bodies on solid foundations of law and legality, I do
not understand this to mean that the Court should sacrifice the elementary
principles of procedure, which are a major factor in the administration of
justice.
***
I propose to consider in detail some of these irregularities which I find
sufficient for the Court to have decided not to entertain the request for
advisory opinion submitted by the Committee.
1. The Composition of the Administrative Tribunal
Article 3, paragraph 1, of the Statute of the Administrative Tribunal
provides that :
"The Tribunal shall be composed of seven members, no two of whom may be
nationals of the same State. Only three shall sit in any particular case."
(My emphasis.)
Under Article 6, paragraph 1, of the same instrument:
"Subject to the provisions of the present Statute, the Tribunal shall
establish its rules."
Article 6, paragraph 1, of the Rules in question reads:
"The President shall designate the three members of the Tribunal who, in
accordance with article 3 of the Statute, shall constitute the Tribunal for
the purpose of sitting in each particular case or group of cases. The
President may, in addition, designate one or more members of the Tribunal to
serve as alternates." (My emphasis.)
It clearly emerges from these texts that the Tribunal may only be composed
[p 449] of three members. The word only in Article 3, paragraph 1, of the
Statute excludes any interpretation enabling four members instead of three
to "sit in any particular case".
The alternates designated by the President of the Tribunal (Rules, Art. 6)
are, as the word suggests, chosen for the purpose of replacing if need be
any member who falls ill, is absent or is prevented from sitting. But it is
incomprehensible, and even unlawful, for an alternate to "replace" a full
member of the Tribunal who is present, otherwise the Tribunal would have a
composition of four and not three members, which would be a violation of
Article 3, paragraph 1, of its Statute. Admittedly, in the instant case
there was no problem of a majority; but, supposing that the President and
the alternate had taken one view and the two vice-presidents the opposite
view, which view would prevail? Might there not in that case have been an
additional element, namely a fundamental error in procedure having
occasioned a failure of justice?
I presume that if some judgements of the Administrative Tribunal,
particularly precedent to the Advisory Opinion of 1954 (Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal), have in
the past been signed by four members, that was perhaps because the alternate
had at some stage or other of the proceedings replaced one of the ordinary
members who had been sick, absent or prevented from sitting; or that the
alternate possessed some specialization or exceptional qualification that
the others did not. However that may be, no explanation was given at the
time and no criticism ensued. That does not mean, however, that this ought
to constitute a precedent.
But in the Mortished case the alternate, who by a strange coincidence
possessed the nationality of the State which later was to call for the
review of Judgement No. 273, not only sat throughout the proceedings but
also appended a dissenting opinion breaking the unanimity of the members
composing the Tribunal. By failing to consider this aspect of the matter in
any way whatever, the Committee betrayed a degree of casualness in regard to
the rules of procedure and the need to subject the "substantial basis" of
the application to a sufficiently searching examination.
I believe that the Court should have taken account of this legal aspect of
the procedure and refused to entertain the request for an advisory opinion.
2. The Composition of the Committee
The Advisory Opinion very clearly enumerates the irregularities tarnishing
the composition and operation of this Committee.
Article 11, paragraph 4, of the Statute of the Administrative Tribunal
provides:
"For the purpose of this article, a Committee is established and authorized
under paragraph 2 of Article 96 of the Charter to request advisory opinions
of the Court. The Committee shall be composed of[p 450] the Member States
the representatives of which have served on the General Committee of the
most recent regular session of the General Assembly. The Committee shall
meet at United Nations Headquarters and shall establish its own rules."
This Committee is composed of 29 members, selected in accordance with a
regional and geographic distribution which is well established at the United
Nations. It is an essentially political organ but one having quasi-judicial
competence in this instance. It has discretionary power to decide whether or
not there is a "substantial basis" for any application for review. It may
therefore either accept that application or reject it.
Given its quasi-judicial character and the importance and novelty of the
case (it was the first time that an application for review had been
submitted by a State), every member of the Committee should have been
present or represented at the twentieth session which took the decision. But
there were only 17. No official list of the members attending that session
has been communicated to the Court and, so far as one can judge, the quorum
and number of votes required by the Committee's rules of procedure were
obtained by the barest of margins.
Here attention should be drawn to the presence of the representative of
Canada, who, in the absence of the representative of Sierra Leone, the
Chairman of the Sixth Committee, and being designated by the latter to
represent him as Vice-Chairman of the Sixth Committee, not only attended the
meetings of the Committee but was elected to be its Chairman, directed its
deliberations and took part in the vote. But the presence of the
representative of Canada was illicit — which did not prevent him from
casting a vote which was important in the circumstances. The member from
Sierra Leone ought to have had someone of his own delegation deputize for
him, not somebody foreign to the Committee.
The Committee, which is essentially a political organ, exercises judicial
functions when it decides that there is a "substantial basis" for an
application for review. To take such a decision, it has to study thoroughly
not only the legal validity of the application itself and its concordance
with the grounds of review enumerated in Article 11, paragraph 1, of the
Statute of the Administrative Tribunal, but also the judgement itself.
(Article 65 of the Statute of the Court emphasizes the legal nature of the
question which the organ of the United Nations is authorized to put to it.)
An investigation of this kind calls for judicial qualifications. This
Committee, which constitutes a link between the Tribunal, the applicant
State and the Court, has to verify the legal validity and the specificity of
the application before deciding whether it has a substantial basis or not.
These requirements do not appear to have been satisfied in the present case.
The Committee itself does not appear to have been legally constituted, and
its Chairman, the delegate from Canada, had no standing to be part of it.
Thus, if the representative of the United States, out of concern for
equality and justice, ought not to have participated in the vote, and if [p
451] the representative of Canada ought not to have been present, that
leaves only 15 members out of the 17 present. That being so, it was only by
the finest of margins that the quorum and number of votes required by the
Committee's rules of procedure were obtained, and the formation of the
Committee appears irregular for want of a legally elected chairman. It
follows that the request for review presented by this Committee was itself
irregular, and the Court should have rejected it out of hand.
3. The Inequality of the Parties before the Committee
The Advisory Opinion does well to stress this inequality between the
parties, which was merely accentuated in the proceedings before the
Committee, which did not permit counsel for Mr. Mortished to attend and take
part in its deliberations, a fact which deprived one of the parties of the
possibility of learning the grounds of the application for review and of
replying to them. Admittedly, this inequality was effaced before the Court
by the omission of oral proceedings, but
was not that a lacuna which ought to have been filled in the proceedings
within the Committee before the matter reached the Court?
I find herein another important reason which should have impelled the Court
to decline to give an opinion.
4. The Singular Formulation of the Question
The Court begins by quoting in its Advisory Opinion the question as put to
it:
"Is the judgement of the United Nations Administrative Tribunal in Judgement
No. 273, Mortished v. the Secretary-General, warranted in determining that
General Assembly resolution 34/165 of 17 December 1979 could not be given
immediate effect in requiring, for the payment of repatriation grants,
evidence of relocation to a country other than the country of the staff
member's last duty station?"
Subsequently the Opinion adds:
"The Court has therefore to consider whether it should confine itself to
answering the question put; or, having examined the question, decline to
give an opinion in response to the request; or, in accordance with its
established jurisprudence, seek to bring out what it conceives to be the
real meaning of the Committee's request, and thereafter proceed to attempt
to answer rationally and effectively 'the legal questions really in issue'."
(Para. 47.)
After examining "the objections, for which the Committee found there was a
'substantial basis' " (ibid., para. 48) and discussing various
considerations, the Court accepts the Committee's interpretation of this
vague [p 452] and ambiguous question and itself concludes likewise that the
two out of four possible grounds discerned by the representative of the
United Kingdom, accepted and enlarged upon by the representative of the
United States, are points of law upon which the Court should give its
opinion. And so it is thanks to the representative of the United Kingdom
that the two grounds of review were finally defined. Nevertheless the
question re-mained the same, without any fresh formulation such as might
have rendered it clearer, more juridical or more in conformity with the
requirements of Article 11, paragraph 1, of the Statute of the United
Nations Administrative Tribunal. It remained vague, imprecise and badly
drafted. It lends itself to ambiguities and is contrary to the terms of
Article 65, paragraph 2, of the Statute of the Court, which stipulates:
"Questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required, and accompanied
by all documents likely to throw light upon the question." (My emphasis.)
But the sort of terms to be found in the question, e.g., "warranted",
"LÉGITIMEMENT" provide no kind of "exact statement" of the two grounds
envisaged by the United States, adopted by the Committee and taken over by
the Court.
In 1973, in the Fasla case, the question put to the Court did indicate, very
clearly, the two grounds of application for review.
In the present case, the Court did not give its own interpretation of the
question as it did in 1980 (Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt). If it had done so, it would have added to the
existing confusion and, although its jurisprudence authorizes it so to act,
it should only do so in cases of absolute necessity. The Court admitted the
Committee's interpretation, which, by giving two grounds of review for a
single question, created a confusion that resulted in the diversity of the
voting both in the Committee itself and within the Court. It may be wondered
whether the second ground adduced, namely excess of jurisdiction, is not
included in the first : error on a question of law ; or if error on a
question of law does not engender excess of jurisdiction. It is in order to
avoid all ambiguity that the Statute of the Court requires that the request
should contain an exact statement of the question and be "accompanied by all
documents likely to throw light upon" it (Art. 65, para. 2). If such is not
the case and the Court finds the question vague, ill-drafted, imprecise and
conducive to ambiguity, the Court is entitled and has an obligation to
reject it. That, in my view, is what it ought to have done.
The Court may not evade its judicial obligations. If it recognizes that
errors committed in proceedings which are "quasi-judicial" in character are
fundamental, that they constitute "compelling reasons" for rejecting the
request for an opinion, it is to offer up procedure as a sacrifice to
disregard the fact and say that, these blatant errors notwithstanding, the
Court, in order to assist the United Nations to put its authority and [p
453] operation on a firm foundation, agrees to comply with the request and
render its opinion.
***
I have therefore voted against point 1 in the operative paragraph of the
Advisory Opinion because I consider:
(a) that the Court, whose primary role is to deal with cases between States,
should not be led into giving opinions which finally result in diverting it
from its principal sphere of jurisdiction and reducing it to being a court
of appeal from judgements of the United Nations Administrative Tribunal in
cases between officials and the Secretary-General;
(b) that the grave errors vitiating the request constitute "compelling
reasons" that should induce the Court to consider the request for advisory
opinion as inadmissible.
I voted against point 2, paragraphs A and B, in order to be rational and
consistent, because I consider that the Court should have gone no farther
after point 1.
(Signed) A. El-Khani.
[p 454]
Dissenting opinion of judge Schwebel
Summary
In view of the provisions of the Statute of the Court and the Statute of the
Administrative Tribunal, the Court is competent to answer the question on
which its Advisory Opinion is requested (Chap. I). To do so adequately, it
must pass upon the merits of the judgement of the Administrative Tribunal
in the case of Mortished v. the Secretary-General of the. United Nations.
Judging its merits would be consistent with the Court's Statute, the terms
of Article 11 of the Tribunal's Statute (paras. 8-10 of this dissenting
opinion) and with the travaux préparatoires of Article 11 (paras. 11-30).
Those terms and travaux préparatoires indicate that, when an objection to a
judgement of the Tribunal has been lodged on the ground of error on a
question of law relating to Charter provisions, the Court is to act as an
appellate jurisdiction, passing upon the merits of the Tribunal's judgement.
Such error need only "relate to" Charter provisions and need not directly
contravene them. In view of the tenor of the travaux préparatoires, there
even is ground for concluding that the Court is entitled to consider whether
the Tribunal's judgement contains error in the interpretation of the Staff
Regulations which derive from a Charter provision, Article 101 (1) (paras.
11-30). The Court's interpretation of the Statutes of the ILO and United
Nations Administrative Tribunals in the Unesco Officials and Fasla cases is
consonant with these conclusions (paras. 3138).
In order to appraise the merits of the Tribunal's judgement, the origins and
development of the repatriation grant must be reviewed. They demonstrate
that the grant was never meant by the organs that proposed or approved or
maintained it to be given to staff members who remain in the country of
their last duty station (Chap. II). This is shown both by the terms of the
Staff Regulations and the relevant discussions in the General Assembly and
other bodies over the years (paras. 40 ff). While in practice the United
Nations appears to have paid repatriation grants to non-relocating staff
from an early if uncertain date, the General Assembly may not have been
informed of this departure of practice from principle before 1976. It was
informed of other variations in the administration of the grant and made
consequential changes in the governing texts, a process which suggests that
the General Assembly did not mean to permit payment to non-relocating staff
(paras. 47-48, 51). When the practice was first aired in the General
Assembly in 1976, it was criticized (para. 52). When the practice was
thereafter re-examined by the International Civil Service [p 455]
Commission, it was found to be contrary to the stated purpose of the grant
and unjustifiable (paras. 54-55). In 1978, the General Assembly accordingly
adopted resolution 33/119, which decided that payment of the repatriation
grant shall be made conditional upon the presentation of evidence of actual
relocation, subject to the Commission's establishing the terms of
presentation of that evidence (paras. 58-59). Instead, the Commission
recommended exempting staff members from the reach of resolution 33/119 in
so far as they had accrued credit towards the repatriation grant before 1
July 1979 (paras. 60-61). The Commission in so doing relied on an opinion of
the United Nations Office of Legal Affairs (paras. 62-64). Thereupon the
Secretary-General issued a transitional rule which did so exempt serving
staff members from the application of resolution 33/119 (para. 67). The
General Assembly reacted adversely to the Commission's recommendation and
the Secretary-General's action, and, in so doing, demonstrated an emphatic
intent to overrule the Secretary-General's transitional rule by its
adoption of resolution 34/165, an exercise of its authority under Article
101 (1) of the Charter to regulate staff relations (paras. 68-89). The
Secretary-General thereupon deleted the transitional rule, and thereafter
declined to pay the repatriation grant to Mortished, a non-relocating staff
member, who appealed to the Administrative Tribunal.
The Administrative Tribunal held that the Secretary-General's refusal to pay
the grant to Mortished injured him in disregard of his acquired rights. It
ordered that Mortished be paid compensation for that injury in an amount
equalling the repatriation grant. The Tribunal so concluded on the following
grounds, none of which, it is submitted, are well-founded (Chap. III).
First, the United Nations had assumed special, contractual obligations
towards Mortished in respect of the grant (para. 92). But the United Nations
demonstrably assumed no contractual obligations whatsoever towards Mortished
that bear on the question of whether he is entitled to receive the grant
regardless of relocation, so this ground of the Tribunal's judgement is
baseless (paras. 93-98). That conclusion is reinforced by an examination of
the relevant jurisprudence of the Tribunal (paras. 99-105). That
jurisprudence also shows that the United Nations is free to amend the
regulatory régime governing the status of staff members as long as it does
so in "statutory" terms of general application which do not trench upon the
vital contractual, and hence acquired, rights of staff members.[p 456]
Second, the Tribunal raised a question about whether the Secretary-General's
deletion of the transitional rule retroactively effaced an entitlement of
Mortished. It appears to assume an answer to this question rather than to
present reasons justifying that assumption (para. 111). It also raised the
question about whether nearly 30 years of practice "could generate an
acquired right within the meaning of Staff Regulation 12.1" but found that
"it is not required to adjudicate that question in abstracto" (para. 106).
Third, the Tribunal held that the repatriation grant was "earned" over the
years and thus constitutes an entitlement of which Mortished could not be
deprived without impairing his acquired rights (para. 113). That conclusion
is based largely on the fact that the amount of the repatriation grant is
calculated according to length of service. However, the drafting history of
the repatriation grant shows that it was not meant to be a salary supplement
progressively earned, but an end-of-service payment no more earned than is a
termination indemnity. The years of continuous service which are a basis for
calculating the amount of, but not entitlement to, the grant are subject to
reduction or elimination, and the staff member may lose the whole of the
repatriation grant on other grounds. It is thus clear that the grant is not
"earned" and that entitlement is dependent upon compliance with eligibility
rules at the time of separation from service. The length of a staff member's
service is simply a convenient formula for calculating the amount of the
grant. (Paras. 114-117.)
Fourth, the Tribunal held that the transitional rule of itself is the source
of Mortished's acquired rights (para. 118). While this approach is
arguable, it is not persuasive. Under the Statute of the Tribunal and its
jurisprudence, an entitlement such as the repatriation grant may be
exercised only in accordance with the conditions governing it as of the time
its exercise is sought. Mortished sought to rely on the transitional rule
when it was no longer in force. Moreover, he could be deprived of any
entitlement under that transitional rule by "statutory amendment", which was
precisely what resolution 34/165 required. (Paras. 119-124.)
The judgement of the Administrative Tribunal actually failed to give
immediate effect to resolution 34/165 (para. 135). The justifications for
the Tribunal's treatment of resolution 34/165 do not withstand analysis
(paras. 132-134, 136-141). The Tribunal's judgement exceeded its
juris-diction by depriving resolution 34/165 of its regulatory effect under
Article 101 (1), contrary to the resolution's terms and the demonstrated
intent of the General Assembly (paras. 142-147), an intent which the
Tribunal misconstrues (paras. 69-90, 109). The failure of the Tribunal to
give immediate effect to resolution 34/165 also constituted, on several
counts, error on questions of law relating to provisions of the United
Nations Charter, most notably Article 101 (1) (paras. 147-152). The
Tribunal's unfounded findings about Mortished's acquired rights did not [p
457] give it an authority it otherwise lacks to set aside resolution 34/165
(paras. 153-155).
1. I regret that I am unable to concur in the Opinion of the Court,
essentially on two grounds. First, I take a broader view than does the Court
of its competence to review the merits of a judgement of the United Nations
Administrative Tribunal. Second, I find the judgement of that Tribunal in
the case of Mortished v. the Secretary-General of the United Nations
profoundly unpersuasive. In my view, that judgement did determine — in
substance, though not in terms — that General Assembly resolution 34/165
could not be given immediate effect in requiring, for the payment of
repatriation grants, evidence of relocation to a country other than the
country of the staff member's last duty station. In so determining, the
Administrative Tribunal erred on questions of law relating to provisions of
the Charter of the United Nations, and exceeded its jurisdiction.
I. The Competence of the Court
2. The competence of the International Court of Justice to review a
judgement of the United Nations Administrative Tribunal is founded on the
relevant provisions of the Statute of the Court and the Statute of the
Administrative Tribunal. The construction which the Court has given in
earlier cases to the pertinent provisions of both Statutes, and to the
analogous but distinct Statute of the Administrative Tribunal of the
International Labour Organisation, has particular significance for the
interpretation of the extent of the Court's authority in this case. The
Court's construction of the Statute of the United Nations Administrative
Tribunal took account of the travaux préparatoires, for they shed light on
what the General Assembly intended when it amended the Statute of the
Tribunal to invest the Court with its review authority. Just as the Court,
in the first case which applied the amended Statute in a review of a
judgement of the United Nations Administrative Tribunal, looked to the
legislative history of the governing amendment, so in this case as well the
Court should look to that legislative history (a point which the Court, in
paragraph 63 of its Opinion, implicitly concedes, in referring to the
"compromise" underlying the amended Statute of the Tribunal). It should
scrutinize it in sufficient depth so as to afford the Court the full extent
of the jurisdiction which, consonant with the Court's Statute, the General
Assembly intended the Court to have.
1. The Provisions of the Statute of the Court and the Court's Judicial
Character
3. The Court succinctly summarized the broad considerations which govern a
case of this kind, and applied the most pertinent provision of its [p 458]
Statute, in the Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973,
pages 171-172 (hereafter referred to as the "Fasla case") where it held:
"14. As to the Court's competence to give the opinion, doubts have been
voiced regarding the legality of the use of the advisory jurisdiction for
the review of judgements of the Administrative Tribunal. The contentious
jurisdiction of the Court, it has been urged, is limited by Article 34 of
its Statute to disputes between States; and it has been questioned whether
the advisory jurisdiction may be used for the judicial review of contentious
proceedings which have taken place before other tribunals and to which
individuals were parties. However, the existence, in the background, of a
dispute the parties to which may be affected as a consequence of the Court's
opinion, does not change the advisory nature of the Court's task, which is
to answer the questions put to it with regard to a judgment. Thus, in its
Opinion concerning Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco (I.C.J. Reports 1956, p. 77), the Court
upheld its competence to entertain a request for an advisory opinion for the
purpose of reviewing judicial proceedings involving individuals. Moreover,
in the earlier advisory proceedings concerning the Effect of Awards of
Compensation Made by the United Nations Administrative Tribunal (I.C.J.
Reports 1954, p. 47) the Court replied to the General Assembly's request for
an opinion notwithstanding the fact that the questions submitted to it
closely concerned the rights of individuals. The Court sees no reason to
depart from the position which it adopted in these cases. If a request for
advisory opinion emanates from a body duly authorized in accordance with the
Charter to make it, the Court is competent under Article 65 of its Statute
to give such opinion on any legal question arising within the scope of the
activities of that body. The mere fact that it is not the rights of States
which are in issue in the proceedings cannot suffice to deprive the Court of
a competence expressly conferred on it by its Statute."
4. It will be observed that the Court saw no problem in its advisory
jurisdiction being used for the review of contentious proceedings to which
individuals were parties which had taken place before another tribunal. The
fact that the Court's opinion would affect such parties to a dispute does
not change the advisory nature of the Court's task, which the Court
described in straightforward terms: "to answer the questions put to it with
regard to a judgment". The Court so held while also holding that "the
opinion given by the Court is to have conclusive effect with respect to the
matters in litigation in that case" (ibid., at p. 182), i.e., in the case on
which the Administrative Tribunal had rendered judgment. The Court
continued:[p 459]
"Such an effect, it is true, goes beyond the scope attributed by the Charter
and by the Statute of the Court to an advisory opinion. It results, however,
not from the advisory opinion itself but from a provision of an autonomous
instrument having the force of law for the staff members and the
Secretary-General. Under Article XII of the Statute of the ILO
Administrative Tribunal the Court's Opinion is expressly made binding. In
alluding to this consequence the Court, in the Unesco case, observed:
'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.' (I.C.J. Reports 1956, p. 84.)
Similarly, the special effect to be attributed to the Court's opinion by
Article 11 of the Statute of the United Nations Administrative Tribunal
furnishes no reason for refusing to comply with the request for an opinion
in the present instance." (I.C.J. Reports 1973, pp. 182183.)
5. Equally, in the instant case, the Court should "answer the questions put
to it with regard to a judgement" of the Administrative Tribunal. It should
not be deterred by the fact that its answers bind the Secretary-General and
the Administrative Tribunal pursuant to the terms of Article 11 of the
Tribunal's Statute, which purposefully, repeatedly and conclusively
prescribe that the Secretary-General or the Tribunal shall act "in
conformity with the opinion of the Court". (That binding effect is
inferentially confirmed by Article 10 (2) of the Tribunal's Statute:
"Subject to the provisions of Articles 11 and 12, the judgements of the
Tribunal shall be final and without appeal." (Emphasis supplied.)) It should
not be deterred by differences about whether, when it reconsiders a
judgement of the United Nations Administrative Tribunal, it acts as a court
of appeal, of cassation or of more limited review authority. It should not
be deterred by the claim that its lack of "appellate" powers prevents it
from examining and disposing of the merits of the Tribunal's judgement — in
so far as answering the questions put to the Court requires such examination
and disposition. Nor should it be deterred by the claim that the Court is
limited to passing upon "constitutional" questions, a limitation expressed
neither in its Statute nor that of the Tribunal.
6. There is nothing in the Charter of the United Nations or in the Statute
of the Court - or in the standing, station or dignity of the Court – that [p
460] prevents it from dealing with the merits of a judgement of the United
Nations Administrative Tribunal. There is nothing inherent in the judicial
processes of the Court that so prevents it. If, as in the instant case,
those processes ensure equality between the United Nations and Mortished in
the proceedings before the Court, that suffices. "The Court may give an
advisory opinion on any legal question at the request of whatever body may
be authorized by or in accordance with the Charter of the United Nations to
make such a request" (Statute of the Court, Art. 65 (1)). If, as is the case
in respect of Mortished v. the Secretary-General, the Court's advisory
opinion is sought on a "legal question", by a body which has been authorized
in accordance with the Charter to make such a request, the Court should, as
in the Fasla case, simply "reply to the questions put to it regarding the
objections which have been raised to the Judgement of the Administrative
Tribunal" (I.C.J. Reports 1973, p. 182). It should not find reasons why not
to reply which are neither required by its Statute nor justified by the
Statute of the Administrative Tribunal. It is to be regretted that, in the
instant case, that is exactly what the Opinion of the Court does (see paras.
57-65).
7. Of course, the particular extent of the Court's competence to review
judgements of the administrative tribunals is determined by the terms of the
statutes of those tribunals. It is accordingly necessary in the instant case
to consider closely the pertinent provisions of the Statute of the United
Nations Administrative Tribunal. At the same time, that Statute and the
Court's authority under its Statute should be interpreted in the light of
the accepted jurisprudence of the Court, in which it
"has repeatedly stated that a reply to a request for an advisory opinion
should not, in principle, be refused and that only compelling reasons would
justify such a refusal (see, e.g., Judgments of the Administrative Tribunal
of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J.
Reports 1956, p. 86 ; Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276(1970), Advisory Opinion, I.C.J. Reports
1971, p. 27)". (I.C.J. Reports 1973, p. 183.)
It is submitted that the meaning for present purposes of this axiomatic
holding is that the Court should answer the question or questions asked of
it — not, obviously, necessarily providing the answers which the requesting
body may be thought to seek, but providing substantive answers to the
questions posed. It does not comport with the Court's jurisprudence for it
to acknowledge that only compelling reasons would justify the Court's
refusal to reply to a request for an advisory opinion and then to offer a
reply which finds questionable reasons for not answering the substance of
the questions put to it. Among such questionable reasons, it is submitted,
are holdings that the Court lacks "appellate" authority and that it is
confined to disposing of "constitutional" objections to a judgement of the
[p 461] United Nations Administrative Tribunal (see, in this regard, paras.
57-65 of the Court's Opinion in this case). It is true that, in its Advisory
Opinion in the Namibia case, the Court recorded and held that:
"It was argued that the Court should not assume powers of judicial review of
the action taken by the other principal organs of the United Nations without
specific request to that effect, nor act as a court of appeal from their
decisions.
89. Undoubtedly, the Court does not possess powers of judicial review or
appeal in respect of the decisions taken by the United Nations organs
concerned." (Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276(1970), Advisory Opinion, I.C.J. Reports 1971, p. 45.)
But that is by no means to say that, where the Court is entrusted with
specific review authority not in respect of a principal organ of the United
Nations but of its Administrative Tribunal, it lacks powers of "judicial
review or appeal". On the contrary, as that passage of the Court's opinion
imports, where, as in the instant case, the Court is specifically entrusted
with powers of judicial review or appeal in respect of decisions taken by
the United Nations Administrative Tribunal, it should exercise those powers.
For the reason stated in this paragraph, it should exercise those powers to
the full.
2. The Provisions of the Statute of the Administrative Tribunal
A. The terms of those provisions
8. What are the powers of judicial review of the Court as they are set out
in the Statute of the United Nations Administrative Tribunal? Article 11 (1)
of the Statute provides:
"If a Member State, the Secretary-General or the person in respect of whom
a judgement has been rendered by the Tribunal... objects to thejudgement on
the ground that the Tribunal has exceeded its jurisdiction or competence or
that the Tribunal has failed to exercise jurisdiction vested in it, or has
erred on a question of law relating to the provisions of the Charter of the
United Nations, or has committed a fundamental error in procedure which has
occasioned a failure of justice, such Member State, the Secretary-General or
the person concerned may, within thirty days from the date of the
judgement, make a written application to the Committee established by
paragraph 4 of this article asking the Committee to request an advisory
opinion of the International Court of Justice on the matter."
Thus the Statute specifies four grounds on which objection to a judgement of
the Administrative Tribunal may be founded. Two of those grounds are [p 462]
pertinent to the case before the Court, since those are the grounds on
which, as the transcript of its proceedings makes clear, the Committee on
Applications for Review of Administrative Tribunal Judgements relied in
requesting an advisory opinion of the Court: excess of jurisdiction or
competence, and error on a question of law relating to the provisions of the
Charter of the United Nations. The principal focus of the Committee's
concern was error of law; in deciding that "there is a substantial basis"
for the application to the Committee not only on that ground but also on the
ground that the Administrative Tribunal had exceeded its jurisdiction or
competence, the Committee nevertheless gave primary emphasis to the
submission that the Tribunal had erred on a question of law relating to the
provisions of the Charter. That emphasis will be followed in this dissenting
opinion as it is in the Court's Opinion, for the judgment of the
Administrative Tribunal at bar particularly poses that issue. At the same
time, in this case the two grounds of error of law and excess of
jurisdiction are inextricably linked. The terms of the two grounds of
objection as they appear in Article 11(1) will initially be the subject of
comment; then they will be analysed in the light of their travaux
préparatoires.
9. On its face, the ground that the Tribunal "exceeded its jurisdiction or
competence" requires only brief comment. The jurisdiction or competence of
the Tribunal is set forth in its Statute, largely in Article 2, which in
pertinent part states:
"1. The Tribunal shall be competent to hear and pass judgement upon
applications alleging non-observance of contracts of employment of staff
members of the Secretariat of the United Nations or of the terms of
appointment of such staff members. The words 'con-tracts' and 'terms of
appointment' include all pertinent regulations and rules in force at the
time of alleged non-observance, including the staff pension regulations.
………………………………………………………………………………………………
3. In the event of a dispute as to whether the Tribunal has competence, the
matter shall be settled by the decision of the Tribunal."
Provided that the Tribunal passes judgment upon an application alleging
non-observance of a contract of employment or terms of appointment of a
staff member, it acts, prima facie, within its competence. However, that
broad statement is subject to two qualifications of vital import for this
case. First, "the words 'contracts' and 'terms of appointment' include all
pertinent regulations and rules in force at the time of alleged
non-observance ...". Second, there is nothing in the Statute of the
Administrative Tribunal to suggest that its competence extends so far as to
authorize it to determine that a resolution of the General Assembly
regulating the conditions of service of the Secretariat shall not be given
immediate effect if the General Assembly intends it to have that effect.[p
463]
10. The meaning of the clause respecting error on a question of law relating
to the provisions of the Charter also calls for comment. It should be
observed that this ground specifies "error on a question of law", which
suggests that it excludes error on a question of fact. Furthermore, error on
a question of law is qualified by the phrase, "relating to" provisions of
the Charter. That is to say, an error of the Tribunal need not squarely and
directly engage a provision of the Charter. It is sufficient if an error is
"in relationship to" the Charter, "has reference to" the Charter or "is
con-nected with" the Charter. (See the definitions found in Webster's Third
New International Dictionary, Unabridged, 1976, p. 1916.) The phrase "the
provisions" of the Charter clearly cannot mean all the provisions of the
Charter, because no error of the Administrative Tribunal could possibly
relate to all the provisions of the Charter; that phrase must mean, "one or
more provisions" of the Charter. But an error, if it is to furnish ground
for objection to a judgment of the Tribunal, must have a relationship to or
be connected with at least one provision of the Charter.
B. The travaux préparatoires of those provisions
(i) Justification for recourse to preparatory work
11. The true meaning of the terms of Article 11 (1) of the Statute of the
Administrative Tribunal (and thus a proper appreciation of the scope of the
review authority accorded the Court by that Article) can be best understood
in the light of their travaux préparatoires. Thus in this case the Court
should do exactly as it has done in prior cases in which the meaning of a
treaty or legislative text has been at issue: examine the preparatory work
which gave rise to it. If it be objected that resort to this supplementary
means of interpretation is justified only where the text is not clear, it is
submitted that the text's lack of clarity is sufficiently shown by the
differences about its interpretation which are demonstrated as between the
Court's Opinion and dissenting opinions in this case. More than this, it is
instructive to recall that in the case of the Court closest to the case at
bar, the Fasla case, the Court at three points recounts the need for resort
to the travaux préparatoires to elucidate the meaning of Article 11 (1) of
the Statute of the Administrative Tribunal. It points out that, "Although
the records show that Article 11 was not introduced into the Statute of the
Administrative Tribunal exclusively, or even primarily, to provide judicial
protection for officials ..." (I.C.J. Reports 1973, p. 183). It concludes
that, "both the text of Article 11 and its legislative history make it clear
that challenges to Administrative Tribunal Judgements under its provisions
were intended to be confined to the specific grounds of objection mentioned
in the Article" (ibid., p. 188). And it goes back to the recommendations of
the Committee which prepared the draft of Article 11 and to the [p 464]
deliberations over that draft in the Fifth Committee of the General Assembly
to state the following:
"50. Article XII of the Statute of the ILO Administrative Tribunal speaks
only of a challenge to 'a decision of the Tribunal confirming its
jurisdiction', and does not make any mention of a failure of the Tribunal to
exercise its jurisdiction. Similarly, in the draft of Article 11 of the
United Nations Administrative Tribunal's Statute recommended to the General
Assembly by the Special Committee on Review of Administrative Tribunal
Judgements, a challenge on this ground was contemplated only if the Tribunal
had 'exceeded its jurisdiction or competence'. The words 'or that the
Tribunal has failed to exercise jurisdiction vested in it' were added at the
499th meeting of the Fifth Committee on the proposal of the Indian
delegation,...
... It further appears that in accepting failure to exercise jurisdiction
as an additional ground of challenge the General Assembly regarded it as
euisdem generis with cases where the Tribunal had exceeded its jurisdiction
or competence; and the Fifth Committee thus seems to have viewed both excess
and failure in the exercise of jurisdiction as essentially concerned with
matters of jurisdiction or competence in their strict sense. In a more
general way, the comparatively narrow scope intended to be given to failure
to exercise jurisdiction as a ground of challenge is confirmed by the
legislative history of Article 11, which shows that the grounds of challenge
mentioned in the Article were envisaged as covering only 'exceptional'
cases." (I.C.J. Reports 1973, p. 189.)
In the light of the Court's repeated and detailed resort in the Fasla case
to the travaux préparatoires of the very article at issue in the instant
case, scrutiny of that same body of preparatory work is especially
appropriate in this case.
(ii) The Court suggests judicial review of Administrative Tribunal
Judgements
12. The amendments to the Statute of the Administrative Tribunal which are
found in Article 11 appear to have been stimulated by the Court's Advisory
Opinion on the Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal, I.C.J. Reports 1954, p. 56, where the Court, in
addressing the possibility of review of judgements of the Administrative
Tribunal, declared:
"In order that the judgments pronounced by such a judicial tribunal could be
subjected to review by any body other than the tribunal itself, it would be
necessary, in the opinion of the Court, that the statute of that tribunal or
some other legal instrument governing it should con-[p 465]tain an express
provision to that effect. The General Assembly has the power to amend the
Statute of the Administrative Tribunal by virtue of Article II of that
Statute and to provide for means of redress by another organ. But as no such
provisions are inserted in the present Statute, there is no legal ground
upon which the General Assembly could proceed to review judgments already
pronounced by that Tribunal. Should the General Assembly contemplate, for
dealing with future disputes, the making of some provision for the review of
the awards of the Tribunal, the Court is of opinion that the General
Assembly itself, in view of its composition and functions, could hardly act
as a judicial organ — considering the arguments of the parties, appraising
the evidence produced by them, establishing the facts and declaring the law
applicable to them - all the more so as one party to the disputes is the
United Nations organization itself."
It will be observed that the Court spoke in 1954 of "review" of judgements
and awards of the Administrative Tribunal and of the provision of "means of
redress". It spoke of the functions of a reviewing judicial organ (which it
rightly said the General Assembly is not) in broad terms: considering the
arguments, appraising the evidence, establishing the facts and declaring the
law.
(iii) The General Assembly takes up the Court's suggestion
13. That very year, the General Assembly took up the Court's suggestion,
resolving that it:
"Accepts in principle judicial review of judgements of the United Nations
Administrative Tribunal." (Res. 888 (IX).) The text of the resolution in
question initially spoke of the establishment of a procedure for "appeals
against" instead of "review of" the Tribunal's judgements. In introducing an
amendment (which was accepted) to substitute the term "review of", the
delegate of Canada, speaking in plenary session on behalf of the
co-sponsors, stated:
"Members are aware that 'review' is a broader term which would include
appeals and other judicial procedures.
12. The object of this change, therefore, ... is not to limit the special
committee to the consideration of only one specific form of judicial
review." (United Nations, General Assembly Official Records, Ninth Session,
515th Plenary Meeting, p. 542, paras. 11-12.)
Resolution 888 (IX) requested member States to communicate their views "on
the establishment of procedure to provide for review of judgements of the
Administrative Tribunal" and established a Special Committee on Review of
Administrative Tribunal Judgements (hereafter referred to as "the Special
Committee") to study the question of the establishment of such a procedure
in all its aspects.[p 466]
(iv) The report of the Secretary-General on review procedures
14. The Secretary-General assisted the Committee by submitting to it a set
of memoranda and working papers. (See United Nations, General Assembly
Official Records, Tenth Session, Annexes, Agenda Item 49: Report of the
Special Committee on Review of Administrative Tribunal Judgements, Annex II,
pp. 17 ff.) He recalled the history of the adoption of the then existing and
still current provision of Article XII of the Statute of the ILO
Administrative Tribunal, which the International Labour Office described as
a means for "appeal" to the International Court of Justice (p. 19). The
Secretary-General noted that, in supporting adoption of this provision by
the ILO, the Director General of the International Labour Office "explained
that the article did not propose that the International Court of Justice
should re-try a case, but merely that it could be asked to define the
jurisdiction of the Tribunal" (ibid., p. 19).
15. On the scope of the review and powers of the reviewing body of the
United Nations Administrative Tribunal, the Secretary-General saw
essentially three possibilities:
"(a) the review of all aspects of the case,
(b) the review of the law only, and
(c) the review of certain legal issues, such for example as the question of
lack of jurisdiction or fundamental defect in procedure" (ibid., p. 22).
As to (a), the Secretary-General submitted that a review of all aspects of
the case
"would without doubt lead to a great number of unwarranted appeals, and thus
would needlessly increase the burden of litigation. There would seem to be
no good reason why the findings of fact by the Administrative Tribunal
should not be conclusive." (Ibid.)
As to (b) the Secretary-General stated:
"A review of the law would include the interpretation of the Staff
Regulations and the Staff Rules as well as other provisions of the contract
and general principles of law which might be involved. It would include the
interpretation of relevant provisions of the United Nations Charter."
(Ibid.)
As to (c), the Secretary-General noted:
"Finally, there is the possibility of providing only for the review of
certain important legal issues. Article XII of the Statute of the ILO
Administrative Tribunal is an example of this alternative. Under this [p
467] article the International Court of Justice may be asked for an advisory
opinion with respect to two types of questions: (a) lack of jurisdiction of
the Tribunal, and (b) fundamental fault in the procedure followed." (Ibid.)
16. Turning to the possibility of review by the International Court of
Justice, the Secretary-General submitted that advisory proceedings might be
suitable for the review of certain legal questions in determining the
validity of a judgement as is provided by the Statute of the ILO
Administrative Tribunal. However, he believed that if a "broader scope of
review were desired", it might be difficult to fit into advisory
proceedings:
"A re-examination of the merits of the case might involve matters which are
not strictly legal questions within the meaning of Article 65 of the Statute
of the Court, and might also require more active participation of the
parties in the proceedings than would be considered permissible by the
Court. Advisory proceedings would probably not be appropriate for such
re-examination which might even be considered incompatible with the Statute
of the Court." (Ibid., p. 24.)
By his reference to Article 65 of the Statute, the Secretary-General seemed
to suggest that, while it is appropriate to put "any legal question" to the
Court in advisory proceedings, it would not be appropriate to put to the
Court questions of fact, i.e., matters which "are not strictly legal
ques-tions". He concluded:
"There is probably no absolute line between a review for which advisory
proceedings would be possible and one for which they would not. Individual
proposals which may be made would have to be examined in the light of the
Statute of the Court and the nature of advisory proceedings." (Ibid.)
17. The Secretary-General transmitted the views of the United Nations Staff
Council, which maintained that "only important questions of law which touch
upon matters of principle should constitute ground for review" (ibid., p.
32). The Staff Council submitted that : "The scope of the review should not
include questions of fact ; the findings of fact by the Administrative
Tribunal should be conclusive." (Ibid.)
(v) The meetings and report of the Special Committee
18. The Report of the Special Committee on Review of Administrative Tribunal
Judgements is revealing, anticipating as it does questions which have been
debated in the current case. Thus as to the meaning of "judicial review", it
declares:[p 468]
"11. With respect to the meaning of 'judicial review' as used in General
Assembly resolution 888 (IX), two possible interpretations were mentioned.
On the one hand, it might be considered that the phrase referred purely to
an appeals procedure in which the parties to the original action could seek
reconsideration of the case or certain of its aspects before an appellate
body. On the other hand, 'judicial review' could also be taken to refer to a
procedure other than an appeals procedure in the technical sense of the
term. It was pointed out that the draft text of resolution 888 (IX).., had
been amended in the General Assembly ... by replacing the words 'appeals
against' by the words 'review of. The intention of the amendment's sponsors
had been to use a broader term which embraced appeals and other judicial
procedures. It was the view of the majority of the members that the
Committee could consider as judicial review either an appeals procedure in
the narrow sense of the term or some other kind of review procedure which
satisfied judicial requirements such as, for example, review of legal
questions through the advisory procedure of the International Court of
Justice." (Report of the Special Committee, loc. cit., pp. 3-4.)
19. The Special Committee based its general discussion on the
Secretary-General's working paper. On the scope of the power of review to
be accorded the organ of review, the Committee's report records:
"The members of the Committee were in general agreement that review should
be limited to exceptional cases, and further, that there should be no
complete review of all aspects of the case, in particular that there should
not be a review of questions of fact as such. There was considerable
variation of opinion, however, among the members of the Committee as to the
exact grounds for which a review should be provided. One body of opinion
held that review should be on all questions of law, whereas another
maintained that it should be confined to the two grounds specified in
Article XII of the ILO Statute of the Administrative Tribunal, namely,
questions of jurisdiction and of fundamental defect in procedure. Positions
in between these two views were also taken." (Ibid.)
The report adds that the US representative, when arguing that member States
should be empowered to request activation of the review procedure, stated:
"On important questions involving the interpretation or application of the
Charter or the staff regulations, the views of Members should receive a full
hearing and consideration." (Ibid., p. 7; emphasis supplied.)[p 469]
20. In its analysis of the specific proposals advanced on the scope of the
review power, the report contains the following:
"The proposal of France ... and the suggestions of the Secretary-General ...
would limit the grounds for review to those stipulated in article XII of the
Statute of the ILO Administrative Tribunal... there should be no retrial of
the facts, nor of points of law generally.
The proposal of China, Iraq and the United States of America ... defined the
scope of review as 'important legal questions raised by the judgement' and
provided for a committee to decide whether the questions were of such
importance as to warrant judicial review ...
The fundamental difference among these proposals with respect to the scope
of review was, on the one hand, that the review should be strictly limited
to the two grounds specified in the Statute of the ILO Tribunal and, on the
other that it should cover all important questions of law." (Ibid., p. 8.)
21. In an effort to bridge the foregoing differences, a joint compromise
proposal was made by China, Iraq, Pakistan, the United Kingdom and the
United States. In "clarification of the text" of the proposal, the British
representative, Sir Vincent Evans (then the legal adviser of the British
Mission to the United Nations, later the Legal Adviser of the Foreign and
Commonwealth Office) explained, on behalf of the co-sponsors, the
following. (Since this explanation is so important it is quoted not from
the condensed report of the Committee but from the fuller summary record of
its discussions.) The International Court of Justice, he specified, would
have a scope of review authority limited "to three precise grounds":
"The first and third were substantially the same as those in Article XII of
the Statute of the ILO Administrative Tribunal, on which there appeared to
be general agreement in the Committee. The second ground, while attempting
to meet half-way those representatives who favoured the inclusion of any
substantial question of law as a ground for review, provided a safeguard
against the danger that review might become a matter of course in all cases.
It attempted to define with maximum precision what questions of law could be
grounds for review. The words 'relating to the provisions of the Charter'
covered not only interpretations of the provisions of the Charter but also
the interpretation or application of staff regulations deriving from
Chapter XV of the Charter." (A/AC.78/SR.10, p. 3; emphasis added.)[p 470]
22. The representative of the United States followed, stating:
"(2) The adequacy of the joint draft with respect to the scope of the
screening committee's authority to call for an advisory opinion had been a
matter of serious doubt to his delegation, which still felt that there was
great merit in the arguments in favour of the possibility of review of legal
questions generally and of excessive awards, regardless of particular
grounds or merits. (3) However, as a conciliatory gesture, his Government
had decided to support the joint proposal. (4) His Government understood the
second ground mentioned in paragraph 1 to include (a) a question under
Article 101 of the Charter whether the Secretary-General's judgment should
be upheld with regard to the conduct of a staff member under United Nations
standards of efficiency, competence and integrity ; (b) a question under
Article 97 whether the Secretary-General's action in giving directions to or
taking disciplinary action against a staff member should be sustained ; (c)
a question under Article 100 involving a staff member's duty to refrain from
any action which might reflect on his position as an international civil
servant responsible only to the Organization." (Ibid., pp. 5-6 ; emphasis
supplied.)
23. Reception of the compromise proposal was mixed. It was acknowledged on
all sides that, under the joint compromise proposal, the advisory opinion of
the Court would be binding on the parties to the Administrative Tribunal
proceedings (an understanding later repeated in the Fifth Committee). But a
substantial minority of the Committee questioned the propriety of the Court
so settling a dispute between the United Nations and a staff member; it
opposed a member State being empowered to seek such judicial review; and it
maintained that the proposed screening committee would not be properly
composed to carry out its functions. On the immediate question of the
extent of the review authority to be given to the Court, relatively little
was said. The Australian representative, who believed that the review body
should be a judicial body other than the International Court of Justice,
found, "The grounds for review provided for in the joint draft were too
restrictive" (A/AC.78/SR.11, p. 6). The Pakistani co-sponsor submitted that
the proposal should "be construed strictly, in a way consistent so far as
possible with the spirit of Article XII of the Statute of the Administrative
Tribunal of the ILO" (ibid., p. 6). The representative of China associated
himself with the opinions expressed by the representative of the United
Kingdom. He supported inclusion of the proviso on an error of law relating
to provisions of the Charter, "for an earlier decision of the Administrative
Tribunal had been open to criticism on that score. The Chinese delegation
attached a great deal of importance to Article 101, paragraph 3, of the
Charter." (Ibid., p. 7.) The Chairman, speaking as the [p 471]
representative of Cuba, said his delegation would vote for the joint draft
because it favoured both the limitations of the scope of review and the
grant of the right to intervene to member States (ibid). The delegate of
Israel had no objection to the scope of the review as provided for in the
joint proposal (A/AC.78/SR.12, p. 3). The delegate of Iraq explained that he
voted for the joint proposal even though his delegation would have preferred
a broader scope of review (ibid., p. 7).
24. No other delegate to the Special Committee commented on the question of
the scope of review to be accorded to the Court. It will be observed that no
one directly differed with the meaning attached by Sir Vincent Evans to the
phrase, "relating to the provisions of the Charter"; his interpretation
apparently was left intact. However, the report of the Special Committee
does not exactly reproduce his words. While, in Committee, Sir Vincent
specified that the intention of the co-sponsors in using this phrase was to
cover "not only interpretations of the provisions of the Charter but also
the interpretation or application of staff regulations deriving from Chapter
XV of the Charter", the report of the Committee on this key point reads as
follows:
"The co-sponsors intended by the phrase: 'a question of law relating to the
provisions of the Charter' to provide for a case not only where the
Administrative Tribunal might be considered to have misinterpreted the
Charter, but also where the Tribunal might have interpreted and applied the
Staff Regulations in a manner considered to be inconsistent with the
provisions of Chapter XV of the Charter." (Report of the Special Committee,
be. cit., p. 10.)
(vi) Consideration by the Fifth Committee
25. Consideration by the Fifth Committee of the Report of the Special
Committee confirmed what the Report of the Special Committee made clear:
that error "on a question of law relating to the provisions of the Charter
of the United Nations" was not confined only to error relating to the
Charter itself but also embraced error in interpretation or application of
the Staff Regulations. Nevertheless, the Fifth Committee's debate and its
resultant report does not wholly settle the scope of this ground of
objection to a judgement of the Administrative Tribunal.
26. In speaking at the outset of the debate, the representative of the
United Kingdom stated:
"With regard to the scope of review, it had been generally agreed that there
should be no review on questions of fact and that, as the Secretary-General
himself had suggested, review should be excep-[p 472]tional only and should
not be applied to all cases as a matter of course. Opinion had been divided,
however, on whether the scope of review should be confined to the two
grounds set forth in Article XII of the Statute of the ILO Tribunal. The
recommendation in the report was a compromise; it adopted the two grounds in
the ILO Tribunal's Statute and added a third — alleged error on a question
of law relating to the provisions of the Charter. It had been felt that the
third ground was adequate to cover cases where the Tribunal, in interpreting
and applying some of the Staff Regulations, did so in a manner which might
be considered inconsistent with the provisions of the Charter, especially of
Chapter XV." (United Nations, General Assembly Official Records, Tenth
Session, Fifth Committee, 493rd Meeting, p. 36.)
He was followed by the representative of Norway, who opposed the Special
Committee's recommendations dealing with the grounds for review, because
"the broad scope of the review proposed" was seemingly at variance with the
objective of limiting review to exceptional cases (ibid., p. 39). However,
the representatives of Cuba and Pakistan maintained that inclusion of the
ground of error of law "had been considered necessary in order to provide
for cases in which the Tribunal's interpretation of the Charter might be
challenged or in which it might be alleged to have interpreted the Staff
Regulations in a manner inconsistent with Chapter XV of the Charter" (ibid.,
pp. 39, 48). The representative of the Netherlands disagreed:
"there would in practice be no limit set to the competence of the reviewing
organ, because a judgement of the Administrative Tribunal could be
challenged on the ground of an error of law relating to the provisions of
the Charter, which was an instrument very wide in its scope" (loc. cit.,
494th Meeting, p. 48).
The representative of Yugoslavia, also opposing the recommendations of the
Special Committee, maintained that "the procedure proposed would tend to
convert the International Court of Justice into a court of appeal for
international administrative tribunals ..." (ibid., p. 49). Others, such as
the representative of Argentina, replied that the procedure would be invoked
"only in exceptional cases where a Tribunal Judgement was challenged on
clearly specified grounds. The system proposed would safeguard both staff
members and the General Assembly against future discussion of Tribunal
judgements." (Ibid., p. 50.)
The representative of the Philippines maintained that:
"Provision had properly been made in the proposed new article 12 [p 473] for
applications relating to questions of fact to be referred back to the
Administrative Tribunal itself, whereas under article 11 applications based
on questions of law would be referred to the International Court of Justice,
the highest international judicial organ, thus promoting the development of
a consistent international jurisprudence ..." (Ibid., p. 51.)
The representative of New Zealand did not object to the proposed scope of
review procedure,
"which would clearly be confined to questions of law. In cases where the
Tribunal's judgements were challenged, the International Court would be the
sole interpreter of the law and in those circumstances it was certain that
no canons of justice would be violated. It also seemed reasonable that cases
coming within the category of an 'error on a question of law relating to the
provisions of the Charter' should be open to review, if any review procedure
were established." (Loc. cit., 496th Meeting, p. 53.)
However, the representative of Sweden did object:
"Turning to the Special Committee's recommendation that a review of an
Administrative Tribunal judgement might be sought if that judgement erred on
a question of law relating to the provision of the Charter, he pointed out
that ... such a recommendation would embrace all the cases enumerated in
paragraph 82 of the Special Committee's report (A/2909) and would thus cover
all the activities of a member of the United Nations Secretariat." (Ibid.,
p. 57.)
The representative of Mexico also preferred limiting the grounds of review
to questions of jurisdiction or procedural error. (Ibid., p. 59.)
27. The delegation of India, which earlier had moved to add a fourth ground
of objection to the three proposed by the Special Committee, namely, failure
to exercise jurisdiction, at this stage of the Fifth Committee's debate
proposed far-reaching amendments to the Special Committee's proposals which
would have substituted a chamber of the Administrative Tribunal for the
screening committee and the full Administrative Tribunal for the
International Court of Justice. These amendments were opposed by the
co-sponsors of the joint compromise proposal which the report of the Special
Committee embodied. In opposing them, and in supporting adoption of the
compromise proposal, the representative of the United States maintained
that: "it was fitting that the International Court of Justice should be the
final authority on interpretation of the Charter or of staff regulations
based thereon which might be involved in the Tribunal's decisions" (loc.
cit., 498th Meeting, p. 66; emphasis added). The amendments of India were
not adopted.[p 474]
28. The Report of the Fifth Committee itself to the General Assembly sheds
little further light on the scope of the review authority to be afforded to
the Court. It confines itself to the following statements:
"15. The co-sponsors of the revised joint draft resolution explained that
the new draft Article 11 was intended to limit review to exceptional cases.
Two of the grounds for review were those provided in the statute of the ILO
Administrative Tribunal, i.e., questions of competence and of fundamental
error in procedure. One additional ground was provided, i.e., errors on 'a
question of law relating to the provisions of the Charter'. The co-sponsors
of the revised joint draft resolution referred to the statements which they
had made concerning the interpretation of this phrase which were contained
in the report of the Special Committee (A/2909). The opinion was expressed
in the debate that the grounds provided for review were of a fundamental
nature and that as such they could not be ignored, if and when they arose,
in the interest of justice.
16. Under the proposed new Article 11 application for review might be made
by the Secretary-General, the staff member concerned or a Member State. The
supporters of the revised joint draft resolution considered that a Member
State had a legitimate interest in ensuring the proper application of the
Charter and the Staff Regulations, as well as a financial interest in the
matter ; and it was not reasonable to assume that a Member State, in
interceding in a case, would do so solely for political reasons ..
………………………………………………………………………………………………
18. Under the proposed new Article 11, the review of substantive legal
issues was to be made by the International Court of Justice which had been
selected because it was an independent, impartial judicial body of the
highest standing. Supporters of the revised joint draft resolution further
considered that the Court was the appropriate organ to be the final judicial
arbiter on questions of Charter law and that no organ would be more
competent to settle other issues arising from the grounds specified for
review. Since only exceptional cases would come to the Court, it would not
be over-burdened with trivial questions. It was further argued that it would
be neither necessary nor economically justifiable to set up new appellate
machinery. While the contentious proceedings of the International Court of
Justice were limited to disputes between States, advisory opinions upon
legal questions might be requested under Article 96 of the Charter by
authorized organs of the United Nations." (Report of the Fifth Committee,
doc. A/3016, reprinted in United Nations, General Assembly Official Records,
Tenth Session, Agenda item 49, Annexes, p. 40.) [p 475]
C. Conclusions on the scope of the Court's review authority in respect of
error of law
29. In the light of the foregoing analysis of the terms and exposition of
the travaux préparatoires of the Statute of the Administrative Tribunal, it
is believed that the following conclusions may fairly be drawn about the
scope of the Court's review authority, particularly in respect of error on a
question of law relating to the provisions of the Charter:
- In preparing and adopting what is now Article 11 of the Statute of the
United Nations Administrative Tribunal, the General Assembly contemplated
the submission of requests to the Court for advisory opinions which would
entail the Court's passing upon points of law raised by a judgement of the
Tribunal, but not re-trying questions of fact. The Court may consider the
merits of a judgement of the Tribunal on questions of law in so far as its
doing so is consonant with the Court's Statute.
- However, the Court would not be requested to reconsider the merits on all
points of law. It is rather restricted to the four "exceptional" grounds of
objection to a judgment specified in Article 11 (1) of the Tribunal's
Statute.
- Three of those four grounds are essentially procedural: excess of
jurisdiction or competence, failure to exercise jurisdiction, and
fundamental error in procedure which has occasioned a failure of justice.
- The fourth ground is substantive and its substance is error on a question
of law relating to provisions of the Charter. Such error need not be in the
interpretation or application of a provision or provisions of the Charter;
it need merely "relate to" — i.e., be connected with — such provision or
provisions. That is the paramount point. The proceedings of the Special
Committee and the Fifth Committee, moreover, make it clear that the scope of
the Court's review authority is consistent with the extensive import of the
phrase "relating to". In the most exigent interpretation found in the
Report of the Special Committee and in statements in the Fifth Committee, it
includes "not only where the Administrative Tri-bunal might be considered to
have misinterpreted the Charter, but also where the Tribunal might have
interpreted and applied the Staff Regulations in a manner considered to be
inconsistent with the provisions of Chapter XV of the Charter". In its
broader interpretation, the Court's authority covers "not only
interpretations of the provisions of the Charter but also the interpretation
or application of staff regulations deriving from Chapter XV of the
Charter". That is the interpretation placed on the error-of-law proviso by
its British co-sponsor, on behalf of the co-sponsors, when it was
introduced in the Special Committee. Or it covers "interpretation of the
Charter or of staff regulations based thereon which might be involved in the
Tribunal's decisions". That is the interpretation placed on the error-of-law
proviso by its United States co-sponsor at the
[p 476] end of a detailed debate in the Fifth Committee, shortly before its
adoption.
30. These narrower and broader interpretations obviously differ. Yet they
can be read together in a consistent fashion; and in support of so doing, it
may be noted that the British and United States representatives, who played
the leading role in the proposal of Article 11, seem to have used them
interchangeably. If they are so read, it may be argued that the terms used
by these principal co-sponsors inform the meaning of the text used in the
Report of the Committee, especially since the United States co-sponsor
re-stated the broader interpretation after the Report was introduced but
before the text was adopted by the Fifth Committee. Or it can be argued that
the apparently narrower scope of the rendering in the Report of the Special
Committee shows that the broad interpretation of the co-sponsors should not
govern — which is a conclusion that derives distinct support from the fact
that the preoccupations of the United States at the time it took so
prominent a part in seeking a review procedure was with what it saw as
judgements of the Tribunal which conflicted with provisions of Chapter XV.
If the broader interpretation is accepted, as it may reasonably be, then it
is plain that the Court in the instant case is entitled to consider whether
the judgement of the Administrative Tribunal in Mortished v. the
Secretary-General correctly interprets the Staff Regulations. But if the
narrower interpretation is accepted, then the Court in the least is entitled
to consider whether that judgement correctly interprets the Staff
Regulations in so far as the Tribunal might have interpreted and applied
them in a manner inconsistent with the provisions of Chapter XV of the
Charter. And in any event, such an inconsistency need merely "relate to"
such provisions.
3. The Court's Interpretation of the Statutes of the Administrative
Tribunals in the Unesco Officials and Fasla Cases
A. The Unesco Officials case
31. In so far as it may be relevant to the scope of the Court's authority in
this case, the Court's Advisory Opinion on Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion,
I.C.J. Reports 1956, p. 77 (herein referred to as the "Unesco Officials
case"), may be best understood for present purposes if it is considered in
the context of the travaux préparatoires set forth above, together with the
Court's interpretation of the distinguishable Statute of the United Nations
Administrative Tribunal which was construed in the Fasla case.
32. In the Unesco Officials case, the Court exclusively considered the
provisions of Article XII of the Statute of the ILO Administrative Tribu-[p
477]nal. It found that the challenge raised against the Tribunal's
judgements "refer to the jurisdiction of the Administrative Tribunal and to
the validity of the Judgments" (p. 83). It saw its advisory procedure "as
serving, in a way, the object of an appeal" against the Tribunal's judgments
(at p. 84). The Court held that it was not necessary for it to express an
opinion on the legal merits of Article XII of the Statute (p. 85). It then
turned to the first question put to it, which was whether the Administrative
Tribunal was competent under its Statute to hear certain complaints. In
considering the decision of the Tribunal which confirmed its jurisdiction,
the Court held:
"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." (I.C.J. Reports 1956, p. 87.)
The Court continued:
"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 regime 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'." (Ibid.)
33. It is plain that, in reaching the foregoing holding, the Court addressed
itself to the particular "legal regime of the Administrative Tribunal" of
the ILO. The distinction between jurisdiction and the merits is "of great
importance" in that regime, because "Errors of fact or law... on the merits"
by the Tribunal cannot give rise to review by the Court. The situation is
demonstrably otherwise in the regime of the United Nations Administrative
Tribunal, which had been freshly adopted when the Court [p 478] took up the
Unesco Officials case. Thus, in the instant case, it would be wrong simply
to carry over the holding of the Court in the Unesco Officials case that:
"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 jurisdiction cannot properly be transformed into a procedure
against the manner in which jurisdiction has been exercised or against the
substance of the decision." (I.C.J. Reports 1956, p. 98.)
This is because the Court, when reviewing judgements of the United Nations
Administrative Tribunal, acts, in so far as error of law relating to Charter
provisions is alleged, under a review authority which is designedly and
decisively wider than that which applies under Article XII of the Statute of
the ILO Administrative Tribunal.
B. The Fasla case
34. The Fasla case is pertinent to the question under discussion, and
instructive in a number of other respects in regard to the case at bar. In
the Fasla case, the request of the Committee on Applications was for an
advisory opinion regarding alleged failure by the Administrative Tribunal to
exercise jurisdiction vested in it and fundamental errors in procedure which
it was alleged to have committed. "These are," the Court said, "questions
which by their very nature are legal questions ... within the meaning of
Article 96 of the Charter" (Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal, I. C.J. Reports 1973, pp. 166,
175). The Court resorted to "the legislative history of Article 11" to show
that recourse to the Court was to be had "only in exceptional cases" (p.
177). In a passage of particular interest, the Court further held that,
"the proceedings before the Court are still advisory proceedings, in which
the task of the Court is not to re-try the case but to reply to the
questions put to it regarding the objections which have been raised to the
Judgement of the Administrative Tribunal" (p. 182).
In the light of the legislative history of Article 11, it is submitted that,
by this, the Court meant that it would not examine the facts of the case. It
did not and could not have meant that it was barred from considering the
merits, if the questions put to it required considering the merits. The
Court noted that the Committee on Applications "is authorized to request,
and the Court to give, an advisory opinion only on legal questions which may
properly be considered as falling within the terms of one or more of those
[p 479] four 'grounds'" (p. 184). It held, in traditional terms, that, "The
Court may interpret the terms of the request and determine the scope of the
questions set out in it" (ibid.). It further held that: "The Court may also
take into account any matters germane to the questions submitted to it which
may be necessary to enable it to form its opinion." (Ibid.) Thus the records
of the Committee on Applications in the current case may be taken into
account in order to interpret the terms of the request, despite the fact
that the Court is, in principle, "bound by the terms of the questions
formulated in the request" (ibid.). The Court found "no reason to adopt a
restrictive interpretation of the questions framed in the request" (at p.
187). It then declared:
"Under Article 11 of the Statute of the Tribunal, as already indicated, the
task of the Court is not to retry the case but to give its opinion on the
questions submitted to it concerning the objections lodged against the
Judgement. The Court is not therefore entitled to substitute its own opinion
for that of the Tribunal on the merits of the case adjudicated by the
Tribunal. Its role is to determine if the circumstances of the case,
whether they relate to merits or procedure, show that any objection made to
the Judgement on one of the grounds mentioned in Article 11 is well founded.
In so doing, the Court is not limited to the contents of the challenged
award itself, but takes under its consider-ation all relevant aspects of the
proceedings before the Tribunal as well as all relevant matters submitted to
the Court itself by the staff member and by the Secretary-General with
regard to the objections raised against that judgement. These objections the
Court examines on their merits in the light of the information before it."
(I. C.J. Reports 1973, pp. 187-188; emphasis added.)
Once more, it is plain that what the Court meant is that it will not retry
the case in the sense of finding the facts, or generally substitute its
views on the merits for those of the Tribunal. But its role is to determine
if the circumstances of the case, "whether they relate to merits or
procedure", show that any objection made to the judgement on one of the
grounds specified in Article 11 is well-founded. That is precisely the task
of the Court in the instant case. Moreover, in performing that task, the
Court, if it is to follow its holdings in the Fasla case, shall not limit
itself to the contents of the challenged award in Mortished v. the
Secretary-General, but shall take into account all relevant matters
submitted to the Court with regard to the objections raised against that
judgement. Among such matters are the terms and intent of General Assembly
resolution 34/165. The Court accordingly should, in examining the objections
to the Mortished judgement of the Administrative Tribunal, decide upon
those objections — as the Court in the Fasla case specifies — "on their
merits" in the light of the information before it — information which
embraces not only the terms of the General Assembly's resolutions but the
debate which led to their adoption.[p 480]
35. In the Fasla case, the Court further held:
"Furthermore, as the Court pointed out in its Advisory Opinion in the Unesco
case, a challenge to an administrative tribunal judgment on the ground of
unauthorized assumption of jurisdiction cannot serve simply as a means of
attacking the tribunal's decisions on the merits...
………………………………………………………………………………………………
So too, under Article 11 of the Statute of the United Nations Administrative
Tribunal a challenge to a decision for alleged failure to exercise
jurisdiction of [sic. — this should read: 'or'] fundamental error in
procedure cannot properly be transformed into a proceeding against the
substance of the decision. This does not mean that in an appropriate case,
where the judgement has been challenged on the ground of an error on a
question of law relating to the provisions of the Charter, the Court may not
be called upon to review the actual substance of the decision. But both the
text of Article 11 and its legislative history make it clear that challenges
to Administrative Tribunal judgements under its provisions were intended to
be confined to the specific grounds of objection mentioned in the Article."
(I.C.J. Reports 1973, p. 188; emphasis supplied.)
It also held that, "in appreciating whether or not the Tribunal has failed
to exercise relevant jurisdictional powers, the Court must have regard to
the substance of the matter and not merely to the form" (pp. 189-190). Later
it observed that the Court's abstention from carrying out a factual inquiry
"does not mean that, in review proceedings, the Court regards itself as
precluded from examining in full liberty the facts of the case or from
checking the Tribunal's appreciation of the facts" (p. 207).
36. The most essential teaching of the Fasla case for present purposes is
that, in an appropriate case which is precisely that of Mortished, i.e.,
"where the judgement has been challenged on the ground of an error on a
question of law relating to the provisions of the Charter" the Court is
"called upon to review the actual substance of the decision". There is only
one qualification to that charge: challenges are "confined to the specific
grounds of objection" mentioned in Article 11 of the Administrative
Tribunal's Statute. As has been demonstrated above, the ground of error on
a question of law "relating to" the provisions of the Charter is a ground
which, in undeniable measure, embraces interpretation by the Court of the
Staff Regulations. The Court's competence does not extend to every such
case, for the scope of the Court's review authority was meant to be
"exceptional" and construction of the Staff Regulations by the Tribunal is
routine. But certainly it would extend to a case such as Mortished's, in
which the authorized Committee of the General Assembly requests an advisory
opinion on so exceptional a question as whether the Adminis-trative Tribunal
was warranted in not giving immediate effect to a resolution of the General
Assembly. Indeed, as will be shown below, that [p 481] exceptional question,
and error of law in respect of it, unquestionably and in any event "relates
to" Charter provisions.
37. The Fasla case is instructive in still another respect as well. In that
case, the Administrative Tribunal found itself in the situation of having to
translate the injury sustained by the applicant into monetary terms. The
Court found that, under the Tribunal's Statute, the discretion afforded the
Tribunal in that regard is wide. It added:
"If the Court were acting in this case as a court of appeal, it might be
entitled to reach its own conclusions as to the amount of the damages to be
awarded, but this is not the case. In view of the grounds of objection upon
which the present proceedings are based, ... the Court must confine itself
to concluding that there is no such unreasonableness in the award as to make
it fall outside the limits of the Tribunal's discretion. This being so, the
Tribunal cannot be considered as having failed to exercise its jurisdiction
in this respect." (I.C.J. Reports 1973, p. 197; emphasis supplied.)
This passage plainly imports that, if the Court in another review of a
judgement of the Administrative Tribunal were not proceeding on the
procedural grounds of objection which were in play in the Fasla case but on
the substantive ground of objection which is at issue in Mortished, the
Court would indeed act "as a court of appeal".
38. This is precisely the conclusion reached as long ago as 1958 by a
distinguished commentator on the subject, Professor Leo Gross. In appraising
the amended version of Article 11 of the Statute of the United Nations
Administrative Tribunal, Professor Gross wrote that an objection on the
ground that the Tribunal has erred on a question of law relating to a
provision of the Charter "relates not to the validity of the Judgment but to
the merits of the Judgment". This ground, he concluded, affords the
International Court of Justice "a true appellate jurisdiction". He observes
that, "The inclusion of the review of substantive legal issues by the
Court... was considered an essential feature of the compromise among the
different proponents of the review procedure ..." (L. Gross, "Participation
of Individuals in Advisory Proceedings before the International Court of
Justice: Question of Equality between the Parties", 52 American Journal of
International Law, 16, 36 (1958)).
II. The Origins and Development of the Repatriation Grant
39. The judgment of the Administrative Tribunal in the case of Mortished v.
the Secretary-General can be evaluated only in the context of the character
of the repatriation grant and the grant's surrounding debate and development
in the General Assembly. It is accordingly necessary to set out the origins
and evolution of the repatriation grant, and its treatment by the General
Assembly in resolutions 33/119 and 34/165, and to do so in adequate
detail.[p 482]
1. The Initiation and Intent of the Repatriation Grant 1949-1950
40. In 1949, the United Nations Committee of Experts on Salary, Allowance
and Leave Systems proposed that a then existing expatriation allowance be
abolished. Its report recommended, however, that a repatriation grant be
paid to repatriating members of the staff, in the following terms:
"It was recognized ... that upon leaving the Organization and being
repatriated to his home country, a staff member is faced with certain
extraordinary expenses, and that such expenses would fully justify payment
of a special lump-sum grant at that time. Such expenses would arise for
example, as a result of (a) the loss, during United Nations service, of
professional and business contacts with the home country ...(b) the
necessity of giving up residence and liquidating obligations in a foreign
country; and (c) the expenses which a staff member will normally have to
meet in re-establishing himself and his home on return to his own country.
The Committee was, therefore, of the opinion that in place of the present
expatriation allowance there should be substituted a repatriation grant
designed to assist in meeting such extraordinary expenditures. The
substitution of such a grant would not only be in the interest of economy
and of administrative simplicity, but equally in the interest of the staff
member who would receive the payment at the time when it was really needed.
It is proposed that the grant should be payable to all staff members with
respect to whom the Organization is obliged to undertake repatriation to
the home country. Staff members who are terminated by summary dismissal
should not be eligible. The amount of the grant should vary with the length
of service with the United Nations provided that payment of the grant would
begin with staff who had served a minimum of two years." (A/C.5/331, p. 2.)
41. This proposal for a repatriation grant — and the reasons for and purpose
of the grant — were (with modifications in its scale) accepted by the
Advisory Committee on Administrative and Budgetary Questions (ACABQ), which
described the grant as payable to staff members "re-turning to their home
countries" (A/1313, para. 69). The Secretary-General supported the proposal
of the Committee of Experts, which he too saw as designed to cope with "the
expense [of retiring staff] incurred in settling down anew in their own
countries" (A/1378, p. 82). The Fifth Committee likewise accepted the
repatriation grant "in the form of a lump-sum which would be paid to staff
members on their being repatriated to their home countries ..." (A/C.5/400,
p. 104). Thus the General Assembly in 1950 adopted a resolution amending the
then provisional staff regulations to provide:[p 483]
"The Secretary-General shall establish a scheme for the payment of
repatriation grants in accordance with the maximum rates and conditions
specified in annex IIFN1 to the present regulations." (Resolution 470 (V).)
------------------------------------------------------------------------------------------------------------
FN1 In later versions, what was initially entitled Annex II became Annex IV.
------------------------------------------------------------------------------------------------------------
Annex II to the new Staff Regulation specified:
"In principle, the repatriation grant shall be payable to staff members
whom the Organization is obligated to repatriate, except those terminated by
summary dismissal. Detailed conditions and definitions relating to
eligibility shall be determined by the Secretary-General. The amount of the
grant shall vary with the length of service with the United Nations ..."
(Ibid.)
The Secretary-General accordingly put out an Information Circular which
noted:
"The principle of a repatriation grant has been established, the grant to be
payable to staff members returned at United Nations expense to their home
countries. The grant will not be payable to staff members who are serving at
an official duty station in their home country when they are separated from
the service. A staff member who is summarily dismissed will not be entitled
to the grant." (ST/AFS/SER.A/72, p. 7.)
2. Departure from the General Assembly's Intent by the CCAQ in 1951-1952
42. Despite the clarity of the language and intent of all concerned, as
early as 1951 the view appeared within the administrations of the United
Nations and the Specialized Agencies that, notwithstanding the principle
that the repatriation grant may be paid only to those who repatriate, as a
matter of practice it also should be paid to those who do not. Thus a
working paper of the United Nations Secretariat prepared for the
Consultative Committee on Administrative Questions (CCAQ) of the
Administrative Committee on Co-ordination (ACC) contains the following
passage:
"Question 1: The General Assembly has stated that the repatriation grant is
to be paid in those cases where the organization is 'obliged to repatriate'.
Given this basic principle, should the repatriation grant be paid in cases
where the staff member is not actually repatriated, i.e., (a) he remains in
the country of the official duty station, (b) he travels to a country other
than his home country?
Answer: In general, the United Nations would take the view that [p 484] the
General Assembly language requires payment of the grant under either
circumstance, particularly since it would be impossible to control the
final place of residence." (CO-ORDINATION/CC/A.12/ 13.)
The foregoing document, which is dated 20 March 1952 and denominated,
"Restricted", is consonant with an opinion voiced the previous year at the
Eleventh Session of CCAQ. The Provisional Summary Record of the Twelfth
Meeting of that session contains this passage:
"Question 1: Should repatriation grants be paid even although the staff
member was not actually repatriated ?
Mr. McDiarmid (United Nations) said that the United Nations took the view
that if the staff member was entitled to be repatriated he was equally
entitled to the repatriation grant irrespective of whether he returned home
or not. After all, it would be impossible to control his ultimate place of
residence.
Mr. Caldwell (International Labour Organisation) agreed with that principle
and mentioned political considerations as another argument for adopting it.
At the suggestion of Mr. Reymond (International Labour Organisation) it was
agreed to record the view that while such a ruling was not entirely in
harmony with the purposes of the grant, from an administrative point of
view no other procedure was possible." (CC/A.l1/ SR.12 of 5 May 1951, p.
12.)
43. The Twelfth Session of the CCAQ, which met in May 1952, adopted a
report, also denominated "Restricted", which contains the following passages
of particular interest:
"Repatriation grants
This subject is considered of sufficient policy importance to warrant a full
report to ACC, which is asked to concur in the principles here enumerated.
Of the agencies which have accepted the common salary and allowances scheme,
only ICAO has failed to include the repatriation grant among its allowances.
To provide a basis for uniformity in administration where the grant is
paid, the following principles are proposed:
(a) The United Nations regulation provides that the grant is payable where
the Organization is 'obligated to repatriate'. This language has been
followed by FAO and Unesco. The ILO and WHO have adopted the criterion,
'serving at a duty station outside of the home country'. It is felt that the
ILO-WHO formulation is more descriptive of the intent. Without proposing
changes in regulations, it is proposed [p 485] that other organizations
undertake to reflect this concept in their rules.
(b) In the light of (a), it is believed that the grant should be paid after
two years' service abroad, regardless of the conditions of separation
(including resignation but excluding summary dismissal) and regardless also
of whether the staff member is actually repatriated.
(c) However, the organization is not considered obligated where the staff
member voluntarily assumes the nationality of the country of duty station.
…………………………………………………………………………………………………………
(g) In the case of a staff member serving away from his home country who is
then transferred to duty within that country, eligibility for the grant
should continue subject to a reduction factor as follows:
(i) no change in the amount of the entitlement if the separation occurs
within the first three months of service in the home country;
(ii) each month of service beyond three months would, for purposes of
calculation of the grant, cancel one year of qualifying service away from
the home country.
Hence the actual amount of the grant (if any entitlement remained) would
depend upon how long after the transfer the separation took place."
(CO-ORDINATION/R. 124, pp. 6-8.)
44. It will be observed that, in the view of the CCAQ, "the intent" of the
repatriation grant was that it should be paid to those serving at a duty
station outside of the home country, apparently regardless of whether the
staff member relocated from the country of the duty station or not. On what
it based this finding of intent is not revealed. It certainly does not
correspond to the intent of the Committee of Experts which proposed the
grant, or of the ACABQ, the Secretary-General or the Fifth Committee in
accepting such a proposal (see paras. 40-41, supra).
45. Two further points in respect of this report of the CCAQ should be made.
First, it acknowledges that the whole of entitlement to the repatriation
grant might vanish upon transfer of a staff member to duty within his home
country (see subpara. (g) in the above quotation from the report) — an
acknowledgement which is not easily reconciled with treating such
entitlement as an acquired right.
46. Second, while the report asks the ACC "to concur in the principles here
enumerated", no evidence has been submitted to the Court indicating that it
did. It may be presumed that, if the Administrative Committee on [p 486]
Co-ordination actually had concurred in these principles, and evidence so
demonstrating exists, Mortished's able counsel would have presented that
evidence. Moreover, a search of United Nations documentation indicates that
(a) the above-cited documents of the CCAQ, two of which were marked as
restricted, were not submitted to the General Assembly or to the Economic
and Social Council and (b) the reports of the ACC in the years 1951-1953
give no indication whatsoever that the ACC concurred in the principles
enumerated in respect of the repatriation grant; indeed, those reports make
no reference at all to the repatriation grant (cf., docs. E/1865, E/1991,
E/2161, E/2203, E/2340 and E/2446).
3. The General Assembly apparently Is not Informed that Practice Departed
from Principle
47. While apparently in practice the United Nations paid repatriation grants
to those who remained at their last duty station, beginning at a time which
is not clear in the record before the Court, it is equally unclear when
before 1976 the General Assembly was informed that the practice had so far
departed from the principle which it had prescribed. Thus as late as 1963, a
Report of the Secretary-General on personnel questions submitted to the
Eighteenth Session of the General Assembly states:
"The repatriation grant was introduced with effect from 1 January 1951
under the terms of General Assembly resolution 470 (V). Unlike the earlier
expatriation allowance, which it replaced, the repatriation grant was
established as a terminal payment designed to provide compensation for the
extraordinary expenditures incurred by staff members at the time of their
separation from the service and re-establishment in their home country after
a prolonged absence." (A/C.5/979, pp. 18-19, para. 13.)
By that same report, the Secretary-General proposed revisions of the Staff
Regulation and its annex governing the repatriation allowance which are not
relevant for present purposes, except in so far as they maintained the
proviso: "In principle, the repatriation grant shall be payable to staff
members whom the Organization is obliged to repatriate ..." (ibid., p. 20).
The conjunction of these passages would surely suggest to any concerned
delegate in the Fifth Committee that the principle of payment of the
repatriation grant to those who are repatriated was routinely respected.
Thus, for example, in discussing the Secretary-General's proposed
amendments to the Staff Regulation in respect of the repatriation grant,
the representative of Czechoslovakia said:
"It should not be forgotten that the repatriation grant had been conceived
as a 'terminal' benefit designed to compensate staff for the extraordinary
expenditure they incurred when they left the Organi-[p 487]zation and
settled in their own countries again after a prolonged absence." (United
Nations, General Assembly Official Records, Eighteenth Session, Fifth
Committee, 1043rd Meeting, p. 202.)
In reply, Sir Alexander Mac Farquhar, the Director of Personnel, in
explaining the Secretary-General's proposal, spoke of "expatriate staff who
returned home ..." (ibid., p. 203). There was no hint of payment of the
repatriation grant to those who did not return home. None of the proposed
amendments to Annex IV of the Staff Regulations concerning the repatriation
allowance related to any practice of paying the grant to those who remained
at their duty station or gave any indication to the General Assembly that
this was the practice, if indeed at the time it was (see A/5646, p. 46). If
it were the conclusion of the Secretary-General that the practice rightly
did not conform to the principle and that the principle should be revised,
it is difficult to understand why he did not take an opportunity such as
this to propose to amend the Staff Regulations, or to amend the Staff Rules,
or, at least, to air the question in the General Assembly.
4. The General Assembly Is Informed that Relocation to a Third Country
Suffices
48. However, while it is far from clear when — at any rate, before 1976 —
the General Assembly was informed of the practice of paying a repatriation
allowance to those who remained at their last duty station, the General
Assembly was informed as early as 1953 that the term "obligation to
repatriate" was interpreted and defined as meaning the obligation to return
a staff member to a place outside the country of his duty station. The
contrast is instructive. From 1953, Staff Rule 109.5, "Repatriation Grant",
in paragraph (a) provided:
" 'Obligation to repatriate', as used in para. 4 of Annex IV to the Staff
Regulations, shall mean obligation to return of a staff member and his
dependants, upon separation, at the expense of the United Nations, to a
place outside the country of his or her duty station."
This definition of the "obligation to repatriate" informed the General
Assembly that the Secretary-General liberally interpreted the pertinent
Staff Regulation to permit removal to a place outside the country of the
staff member's duty station in addition to the home country. But equally, it
may be said to have imported that a staff member who remained in the country
of his or her last duty station was not eligible for a repatriation
allowance: expressio unius est exclusio alterius. Viewed in this light, the
stress which the Administrative Tribunal places in Mortished v. the
Secretary-General (para. VII) on the 1953 break of the link between the
repatriation grant and return to the home country appears misplaced.[p 488]
5. The CCAQ's Rationale for the Practice
49. In 1974, the Consultative Committee on Administrative Questions
undertook a review of the repatriation grant. Its Secretariat in a working
paper noted that the grant was designed to deal with the "practical and
financial difficulties of [the expatriate staff member] re-establishing
himself in the home country as were foreseen in 1951" (CCAQ/SEC/ 325(PER),
p. 3). It observed that : "Its object certainly was never that of
facilitating establishment in retirement and certainly not in a place other
than in the home country." (Ibid, p. 4.) It continued:
"The whole purpose of the grant is to assist the staff member and his family
to re-establish in the home country and clearly there is no logical
justification for paying the grant to a staff member who remains in the
country of his last duty station. Applying the logic is, however, fraught
with practical difficulties. The organizations have no way of knowing where
a staff member actually resides after he leaves service and in fact there
are a number of cases in which staff have two or more residences. The
secretariat of the Pension Fund has records of the addresses to which
pensions are paid but these are not necessarily the residences of the
pensioners. One could make payment of the grant dependent upon actual
repatriation travel but this would only ensure that the organization
incurred the cost of such travel — the value of the grant is sufficient to
induce staff to accept repatriation and pay their own fares back to the duty
station or to any other place in which they intend to reside. In many cases
staff at the time of leaving service do not really know where they will
reside and to tie the grant to actual repatriation would lead to requests
for keeping the entitlement on the books pending personal decisions of the
staff member. For all these reasons, CCAQ Secretariat doubts the feasibility
of attempting to make payment of the grant dependent on evidence of
repatriation."
50. The foregoing rationale for what the CCAQ Secretariat here implicitly
indicates is the practice of paying the repatriation grant to those who
remain in the country of their last duty station is of high interest. What
is most striking about the rationale is its unpersuasiveness. It appears to
proceed in part on the assumption that staff members of the international
secretariats cannot be trusted to tell the truth about their domicile, even
though they are routinely entrusted with telling the truth about more
important matters and even though sworn statements as to residence or
domicile are a regular incident of the modern life of the taxpayer, spouse
and litigant. It should have been obvious that the least the organizations
could have done was to have made payment of a repatriation grant con-[p
489] ditional upon the staff member's signing an undertaking of removal from
the country of last duty station within a given period. Indeed the
International Civil Service Commission belatedly reached this conclusion.
Moreover, the difficulties of monitoring performance of a pledge of removal
appear to have been exaggerated, as the straightforward rule ultimately
promulgated by the Secretary-General in 1979 indicates.
6. Amendments to the Staff Regulations Do not Inform the General Assembly of
the Practice
51. The seven United Nations agencies which replied to a question posed by
the foregoing working paper on whether payment of the repatriation grant
should be conditional on actual repatriation unanimously said that it should
not be (CCAQ/ SEC/ 325(PER) Add. 1, para. 2). What is of interest for
present purposes is that, apparently as a result of questions discussed by
the CCAQ Secretariat and then moved through the system, amendments were made
in 1974 to the Staff Regulations and Staff Rules and that those amendments
in fact included revision of Staff Regulation 9.4 on the repatriation grant
(res. 3353 (XXIX)). But again no effort was made to amend or clarify the
Regulation or consequential Rules or annexes to justify a practice of paying
the repatriation grant to those who remain in the country of their last duty
station. Nor was light on the practice shed by the Report of the
International Civil Service Commission (ICSC) to the General Assembly of
1976, which, in so far as the record presented to the Court indicates,
nowhere states that repatriation grants are paid to those who do not leave
the country of their last duty station.
7. The Practice Is First Aired in the General Assembly in 1976
52. It was at the General Assembly in 1976 that the practice of payment of
the repatriation grant to those who remain in the country of their last duty
station was first aired. The representative of Austria in the Fifth
Committee, in commenting on the Report of the International Civil Service
Commission, questioned whether it was appropriate to pay the grant to a
staff member who "remained in the country of the duty station after
retirement" (A/C.5/31/SR.32, p. 9). The representative of Australia shared
her concerns (A/C.5/31/SR.34). Consequently, the Report of the Fifth
Committee noted that:
"The view was also expressed that the Commission should consider [p 490]
whether staff members who did not return to their country of origin on
retirement should be entitled to the grant." (A/31/449, p. 4.)
The resolution adopted by the General Assembly contains the following
provision:
"Requests the Commission to re-examine, in the light of the views expressed
in the Fifth Committee at the current session:
(a) the conditions for the provision of terminal payments (for example,
repatriation grant, termination indemnities), in particular on retirement
and the possibility of establishing a ceiling for the maximum aggregate of
entitlements to these payments;
(b) the possible introduction of an 'end-of-service' grant with particular
attention to the conditions in which such payment might be justified"
(ibid., p. 6).
It should be noted that this resolution belies any contention that, in
practice, the repatriation grant had evolved into a severance grant, since
it speaks of no more than the "possible introduction" of an end-of-service
grant.
8. The CCAQ Does not Mention the Practice
53. In response to the General Assembly's request that the International
Civil Service Commission re-examine the conditions for payment of the
repatriation grant, studies were undertaken. In a paper submitted to the
Commission by the Consultative Committee on Administrative Questions dated
6 February 1978, under "Conditions of Entitlement", the following
description of the repatriation grant is found:
"Grants designed to assist the staff member and his dependents, to
re-establish themselves in the home country upon completion of his service
with the organization (repatriation grant and grant on death)
(CO-ORDINATION/R.1263/Add.3, p. 3).
The paper continues as follows:
"(b) Repatriation Grant
13. Unlike the termination indemnity, the conditions of entitlement for
which have been extensively reviewed and most recently revised, those
governing the repatriation grant have remained essentially unchanged since
they were first laid down with effect from 1 January 1951 ...
14. The grant is payable to staff members whom the organization is obligated
to repatriate at the end of their service, except in cases of summary
dismissal and abandonment of post. The obligation to[p 491] repatriate is
interpreted to mean the obligation which the organization assumes when it
recruits a staff member who is a national of a country other than that of
the duty station to return him or her at the expense of the organization to
the home country recognized for purposes of home leave, the place from which
he or she was recruited or, exceptionally, such other country as the
executive head may determine in the light of the circumstances affecting the
staff member's status at the time of separation. The purpose of the
grant,... is to assist the staff member in meeting the extraordinary
expenses he or she is faced with on leaving the organization and returning
to the home country ...
15. In one particular respect [not relevant to the issue of relocation], the
purpose of the grant has undergone some modification since it was first
defined ...
16. Entitlement to the grant is further determined by the staff member's
personal status ... In the case of the single staff member, the grant is
half the amount payable to the married staff member. The rationale behind
this sharp distinction,... is the assumption that the expenses of
re-establishing a family after an extended absence from the home country are
substantially higher than those of a single person.
17. The organizations believe that the concept of the grant, as evolved over
the years and as currently applied in the varying circumstances under which
the grant is paid adequately responds to employment policies laid down by
their respective governing organs." (CO-ORDINATION/R.1263/Add.3, pp. 4-6.)
This is an extraordinary statement. It is longer and more detailed than the
foregoing quotations indicate. It accurately sets out the original and
continuing rationale for payment of the repatriation grant. It summarizes
the changes that have been made in eligibility for the grant. It purports to
set out, presumably exhaustively, the terms of entitlement to the grant. It
says that only in "one particular respect" has the purpose of the grant
undergone some modification since it was first defined. Yet scrutiny of
this statement demonstrates that it contains no indication that in fact
United Nations officials were being paid the grant even if outside the terms
it describes as those of "entitlement".
9. The Revealing Report of the ICSC of 1978
54. The International Civil Service Commission, in its Report to the General
Assembly in 1978, recites the facts which are summarized in the foregoing
quotation (United Nations, General Assembly Official Records, Thirty-Third
Session, Supplement No. 30 (A/33/30), pp. 59-60), and then continues:[p 492]
"181. The Commission's examination in 1978 centred on two questions:
(a) the justification for the progressive scale of amounts of the grant;
(b) the appropriateness of paying the grant to a staff member who, upon
separation, does not return to his home country.
182. If the purpose of the grant was to meet exceptional expenses incurred
in resettling oneself in one's own country, it could be questioned why the
amount should increase with the number of years of service (up to a fixed
maximum). It could be argued that the expenses in question were no greater
after 20 years' expatriation than after one year's; indeed, they might be
less if the separation and repatriation had been foreseen and planned for
some time than if they occurred unexpectedly as might be the case in the
first few years of service. By its progressive character, the grant
undoubtedly had some of the characteristics of an earned service benefit, as
well as of an ad hoc subsidy. The Commission recognized this duality, due,
no doubt, to the fact that the grant was introduced to replace a previously
existing expatriation allowance and also to the influence of the progressive
pattern of many other such indemnities (e.g., the termination indem-nity or
the severance pay of the United States civil service; the same pattern was
found in the repatriation or resettlement grants of a number of national
foreign services)... The Commission believed there would be logic in
standardizing the repatriation grant as a flat amount or as the equivalent
of a number of days' daily subsistence allowance at the rate applicable to
the place to which the former staff member moved (so as to reflect
differences in cost of living); at the same
time, it doubted the wisdom of eliminating entirely from the salary system
all trace of a separation benefit reflecting length of service..."
This quotation is significant, for it places in appropriately modest context
any contention that the staff member "earns" the repatriation allowance
which thus is an accrued and vested right. As to the immediate issue of the
case, the Commission made the following extremely important state-ment:
"183. Having regard to remarks made in the discussion in the Fifth Committee
at the thirty-first session of the General Assembly, the Commission
considered the question of whether it was appropriate that a repatriation
grant be paid to a staff member who did not, in fact, return to his or her
home country upon separation from the organization. Strictly speaking, it
was clear that to do so would be inconsistent with the stated purpose of
the grant. The staff member who [p 493] remained in the country of the last
duty station incurred none of the expenses of dislocation and reinstallation
which the grant was intended to meet (or none more than would be incurred by
a non-expatriate staff member, who would not be entitled to the grant in any
case). The staff member who removed to a country other than the home
country, either to work there or to retire there, did incur expenses of
relocation and installation, but the strict purpose of the grant was not
complied with. To say that the staff member had earned the entitlement to
the grant through having been expatriate during his service and should
receive it upon separation wherever he went, then, would be to change the
nature of the entitlement and to make it a kind of deferred expatriation
allowance, so raising the question of possible duplication with that part of
the margin included in base salary which is defined as compensation for
expatriation.
184. The representatives of the organizations, while recognizing the
problem, pointed out to the Commission the practical difficulties they would
have in keeping track of the movements of a former staff member after he had
left the service. The fact that he had used his entitlement to repatriation
travel would not be conclusive, since he might travel to his home country
but return immediately afterwards to settle in his last duty station country
or go to some third country. (Some members, however, believed that if a more
rigorous control was exercised over repatriation travel than appeared to be
the case at present, it could provide considerable indications as to where
former staff members had gone on separation.)
185. The Commission acknowledged these practical difficulties and had no
desire to see an international information network set up to keep track of
the movements of former staff members. It did believe, however, that to pay
repatriation grant to a person who remained permanently in the country of
his last duty station was incompatible with the purpose of the grant and
could also be seen as discriminatory by non-expatriate staff members. The
expatriate staff member's choice to remain in the duty station country
certainly meant that he had, for some time, intended to make that country
his home and so had, to some extent, ceased to be truly expatriate.
186. The Commission considered the possibility that the grant be paid only
to a staff member who supplied evidence that he had settled in his
recognized home country. It rejected that solution because it would penalize
those staff members who, during service, had acquired family or other ties
with a country other than that from which they were originally recruited,
those who on leaving United Nations service were obliged to go to a third
country in order to find work and those [p 494] who, for political or other
reasons were unable to return to their home country. It considered
nevertheless that the grant should not be paid to a staff member who, on
separation, remained permanently in the country of his last duty station and
so incurred none of the expenses of dislocation and relocation which the
grant was intended to meet. The Commission recognized the difficulties of
exercising administrative control over the movements of former staff members
after they had left the organizations. Considering that the proportion of
staff members who did not return to their home country on separation was in
any case very small, the Commission was of the opinion that the setting up
of cumbersome watertight controls would not be warranted. It believed that
the staff member's good faith should be sufficient guarantee of his
intentions. It recommends, therefore, that payment of the repatriation grant
should be made conditional upon signature by the staff member of a
declaration that he does not intend to remain permanently in the country of
his last duty station. That requirement should come into effect from 1
January 1979 for new staff members. If the organizations consider that some
period of grace should be allowed to serving staff members who may already
have planned the place where they will reside after their separation on the
assumption that they will receive the grant, CCAQ should agree on a common
transitional measure." (Ibid.)
This statement is notable in several respects, especially in that:
- it affirms, in 1978, that payment to non-repatriating staff is, strictly
speaking, "inconsistent with the stated purpose of the grant";
- it recognizes that, in 1978, there is a case, in terms of the grant's
purposes, for payment to a staff member who relocates to a third country,
but no such case for the staff member who remains in the country of the last
duty station;
- it recognizes that to make payment to staff who remain in the country of
the last duty station "would be to change the nature of the entitlement",
which would raise question of duplicating payments already made;
- it notes the practical difficulties of monitoring the movement of retiring
staff and suggests that reliance be placed on the good faith of the staff
member in undertaking to move as a condition of payment;
- it suggests that if the organizations consider that "some period of grace"
should be allowed to serving staff members who have made their retirement
plans, a common transitional measure should be agreed upon.
It will be observed that the Commission's exposition and analysis made[p
495] little room for the contention that serving staff members have an
acquired right to payment of the repatriation grant; it spoke, in tentative
terms, of a "period of grace".
55. In introducing the Commission's report to the Fifth Committee, the
Chairman of the International Civil Service Commission stated that:
"The Commission had made a careful study of the entitlement... it believed
that the repatriation grant should not be paid when the staff member, at the
end of his service, remained in the place of his last duty station and
accordingly did not incur the removal and reinstallation expenses which the
grant was intended to meet." (A/C.5/33/SR.32, p. 11.)
10. Fifth Committee Response to the ICSC Report
56. In the discussion that ensued in the Fifth Committee, the following
views were expressed. The representative of Italy uniquely opposed
requiring the retiring staff member to sign a declaration that he did not
intend to remain permanently in the country of his last duty station
"because it would infringe the right of an individual to move freely from
one place to another" (A/C.5/33/SR.37, p. 17). The representative of Japan,
while approving the Commission's proposal, considered that signature of such
a declaration was not a "sufficient guarantee against its abuse" (ibid, p.
22). The representative of Austria maintained that the grant was designed to
assist a staff member in re-establishing himself or herself in the country
of origin long before reaching retirement age; payment to a retiring
official who remained at the last duty station was "wasteful", the more so
since Pension Fund arrangements permitted drawing one-third of the capital
value of a pension in a lump-sum to cover costs of relocation. Her
Government would accept the Commission's recommendation for a declaration
on a provisional basis "to avoid continuing the current practice..."
(A/C.5/33/SR.38, p. 6). The representative of Belgium maintained that the
repatriation grant, "which had been $5,000 in 1963, had grown out of all
proportion ... The grant should be strictly limited to staff members who
resettled in their home countries and, despite the arguments in ... the
Commission's report, administrative control of their movements was
warranted." (A/C.5/33/SR.40, p. 5.) The representative of the United States
accepted "without question" the condition which the ICSC recommended be
imposed with respect to the repatriation grant. The condition was
"completely in accord with the spirit and letter of the Staff Regulations,
which represented the final authority for interpreting conditions of
service" (A/C.5/33/SR.40, p. 8). The representative of France declared that
his delegation was, on the whole, against all special grants paid at the end
of service and believed that the existing repatriation grant should be
"strictly limited" (ibid., p. 11). The representative of Trinidad and Tobago
found that a declaration of intent was not sufficient to ensure payment of
[p 496] the repatriation grant in the circumstances for which it was
intended (A/C.5/33/SR.41, p. 9). The representative of Canada agreed with
the Commission that the grant should not be paid to a staff member who
remained in the country of his last duty station; a declaration did not seem
a sufficient guarantee against abuse (ibid., p. 13).
57. In reply to these remarks, the Chairman of the Commission stated that
its proposed reliance on the good faith and word of honour of international
civil servants should be sufficient "as a first step in introducing
administrative control". In its study, the Commission had found that "in a
few cases" grants had been paid to non-relocating staff and the
Commission's proposal "was intended to eliminate what was considered to be
an unjustifiable and anomalous payment in such cases" (A/C.5/33/SR.42, p.
17).
11. The General Assembly Bars Payment to Non-Relocating Staff by Resolution
33/119
58. Thereafter, a resolution on the Report of the International Civil
Service Commission was introduced — the resolution which was to become
resolution 33/119. In introducing the resolution on behalf of the sponsors,
the representative of Japan declared:
"On the question of the repatriation grant, paragraph 4 made it clear that
evidence of actual relocation would be required, in addition to a signed
declaration by the staff member. It would be the Commission's task to
establish the exact terms." (A/C.5/33/SR.56, p. 10.)
This statement is important, for it indicates that all the Commission and
the Secretary-General were to do in implementing resolution 33/119 was to
establish the exact terms of provision of evidence of relocation. It thus
inferentially indicates that what the Commission and the Secretary-General
actually did - to promulgate the transitional provision at issue in Staff
Rule 109.5 (f) — conflicted with the clear intent of General Assembly
resolution 33/119.
59. In the debate on the resolution, Mr. Davidson, Under-Secretary-General
for Administration and Management, stated:
"32. Where payment of the repatriation grant was concerned, he took it that
the Commission would show some flexibility in imple-[p 497]meriting the
practice proposed in section IV, operative paragraph 4. Since acquired
rights were involved, it might prove necessary to refer the matter to the
Administrative Tribunal, and that could create problems unless the
Commission could find some means of resolving the difficulty."
(A/C.5/33/SR.56, p. 10.)
Moments later, the representative of Barbados stated that his delegation
"would have preferred the deletion of the phrase 'subject to the terms to be
established by the Commission' " in Section IV, paragraph 4, of the draft
resolution ; "unless repatriation was established, he saw no occasion for
payment of the repatriation grant" (ibid, p. 11). The representative of
Belgium followed with this statement:
"As for section IV, paragraph 4, he agreed with the representative of
Barbados that the essential phrase was that referring to the need for
presentation by the staff member of evidence of actual relocation, rather
than the mention of terms to be established by the Commission." (Ibid, p.
14.)
This exchange then took place:
"Mr. Akashi (Japan) explained that the final phrase of paragraph 4 was
considered necessary because certain ambiguous circumstances could arise in
which more specific guidelines would prove necessary. For example, would a
staff member who presented evidence of relocation years after his
repatriation still be entitled to a grant? Or, should a staff member who
needed the grant to pay for tickets to return to his country be required to
submit evidence of relocation? Many such situations could arise, but he
trusted that the Commission would be able to draw up appropriate conditions
and terms. However, he assured the representative of Belgium that the phrase
in question in no way diluted the thrust of the decision in paragraph 4 but
merely provided for its administrative implementation. Moreover, the
Commission would inform the Fifth Committee of the terms and procedures it
established.
52. Mr. Pirson (Belgium) said that, if that was the case, he would not
object to the wording of the paragraph." (Ibid., p. 14.)
Apart from the foregoing inferential rejection of the
Under-Secretary-General's assumption that the Commission would "show some
flexibility" in implementing the resolution, nothing was said of his claim
that acquired rights were involved. Thereupon resolution 33/119 was adopted
by which the General Assembly:
"4. Decides that payment of the repatriation grant to entitled staff [p 498]
members shall be made conditional upon the presentation by the staff member
of evidence of actual relocation, subject to the terms to be established by
the Commission."
12. The Frustration of Resolution 33/119
A. The Secretary-General's circular
60. After the adjournment of the Thirty-third Session of the General
Assembly, the Secretary-General issued an Information Circular of 22 January
1979 to members of the staff on the Assembly's action on personnel
questions. On the repatriation grant, the Circular declared:
"20. The General Assembly decided that payment of the repatriation grant to
entitled staff members should be made conditional upon the presentation by
the staff member of evidence of actual relocation, subject to the terms to
be established by the Commission. It will, therefore, remain for the
International Civil Service Commission to determine the specific terms in
implementation of that decision, including their applicability to staff
members in service as of the end of 1978." (ST/IC/79/5, pp. 6-7.)
On what basis the Secretary-General ventured to transmute the clear charge
of the relevant paragraph of resolution 33/119, as explained on behalf of
its co-sponsors, from that of ensuring no payment to retiring staff who do
not relocate to making an exception from that rule in favour of "staff
members in service as of the end of 1978" is not apparent. He could rely
solely on the statement of his Under-Secretary, which no delegation had
supported and which three delegations had pointedly not supported.
B. The ICSC recommends a transitional rule
61. Thereafter, the International Civil Service Commission took up its
charge under resolution 33 /119 to establish terms to make payment of the
repatriation grant "to entitled staff members" conditional upon the
presentation by the staff member of evidence of actual relocation. It
describes its performance of that task in these terms:
"23. Finally, the Commission recalled that in its proposal to the General
Assembly it had foreseen the possibility that some special provision would
be needed regarding staff members who had an expectation of receiving the
grant under the existing rule but would no [p 499]longer be entitled to it
under the new rule. The Commission was informed that the legal advisers of
several organizations had studied the question and come to the conclusion
that any entitlement already earned by a staff member could not be affected
retroactively by the changing of the rule; but the exercise of further
entitlements accruing after the date of the change would be subject to
compliance with the new condition. That view was supported by the
jurisprudence of the United Nations Administrative Tribunal as quoted by the
Tribunal in paragraph XVI of its judgement ATI DEC/237.
24. Some members questioned whether any acquired right could be said to
exist to payment of the repatriation grant to a staff member who did not
repatriate or relocate himself. In their view, such acquired rights as might
be deemed to exist could only be in respect of persons who had retired and
could not accrue to the benefit of existing employees whose rights must rest
on a true interpretation of the existing staff regulations rather than an
administrative practice contrary to the regulation which expressly related
repatriation grant to those employees whom the organizations had an
obligation to repatriate. The Commission sought an opinion from the Office
of Legal Affairs of the United Nations Secretariat, which indicated that, in
so far as the United Nations Organization itself was concerned, there was no
express or implied provision that only those who actually made use of the
travel entitlement should receive the grant; the relevant Staff Rules had
been reported to and noted by the General Assembly, which must accordingly
have deemed the rule to be consistent with the intent and purpose of the
Regulations which it had itself approved. On the basis of the advice
received the Commission decided that the require-ment of relocation should
apply only to that part of a staff member's entitlement which was earned
after the date on which the rule was changed." (Report of the International
Civil Service Commission, A/34/30.)
C. The opinion of the Office of Legal Affairs
62. It may be useful to consider the cited legal opinion of the United
Nations Office of Legal Affairs in conjunction with the foregoing passages
of the Commission's Report and appraise them together, since the latter so
heavily relies upon the former. The whole of the legal opinion, which is
undated but apparently was given to the ICSC in the first quarter of 1979,
reads as follows:
"Advice has been requested on the question whether United [p 500]Nations
Staff Rules and the practice within the common system under which
repatriation grants are paid to certain staff members, even if they remain
in the country of their last duty station after separation, has been
consistent with staff regulation 9.4 and annex IV. It has been suggested
that if such payment had not been within the then applicable Regulations,
then a new regulation discontinuing such grants would simply constitute a
discontinuance of an erroneous practice which by its nature could not have
given rise to any legally cognizable expectancy.
The history of the repatriation grant as well as the wording and schedule
contained in annex IV of the Regulations suggest that the number of years of
expatriate service was considered by the General Assembly to be the most
significant element of the entitlements. Although the General Assembly
defined the recipients of the grant by reference to the definition of those
entitled to repatriation travel, there is no express or implied provision to
the effect that only those who actually made use of the travel entitlement
should receive the grant.
In annex IV of the Regulations, the General Assembly specifically left it to
the Secretary-General to establish the conditions for payment of the
repatriation grant, and the Secretary-General did this by promulgating
staff rule 109.5 and also by establishing a practice in an agreement within
the Consultative Committee on Administrative Questions. Staff rule 109.5
(f), which even provided for discretion to pay the grant to persons whose
final service is within their home country and who could not therefore be
entitled to repatriation travel, was — like all Staff Rules — reported to
and noted by the General Assembly, which must accordingly have deemed the
rule to be consistent with the intent and purpose of the Regulation.
It is therefore clear from the legal viewpoint (and indeed unquestionable
under recent United Nations Administrative Tribunal Judgements) that the
Staff Rules and payment practices hitherto governing entitlement to the
repatriation grant were within the Secretary-General's authority ; and,
although subject to change to the same extent as other conditions of
appointment of staff, they gave rise to valid and enforceable entitlements
and obligations." (A/C.5/34/ CRP.8.)[p501]
D. The texts of Staff Regulation 9.4, Annex IV and Staff Rule 109.5
63. In order to analyse the opinion of the Office of Legal Affairs and the
reliance of the ICSC upon it, it is necessary to set out the texts of the
pertinent Staff Regulation and Rule as they then were. They read:
"Regulation 9.4: The Secretary-General shall establish a scheme for the
payment of repatriation grants within the maximum rates and under the
conditions specified in annex IV to the present regulations."
"Annex IV
Repatriation grant
In principle, the repatriation grant shall be payable to staff members whom
the Organization is obligated to repatriate. The repatriation grant shall
not, however, be paid to a staff member who is summarily dismissed. Detailed
conditions and definitions relating to eligibility shall be determined by
the Secretary-General. The amount of the grant shall be proportional to the
length of service with the United Nations, as follows:
Years of continuous service away from home country Staff member with a
spouse or dependent child at the time of separation
(Weeks of pensionable remuneration less staff assessment, where applicable)
1 4
12 or more 28
"Rule 109.5
Repatriation grant
Payment of repatriation grants under regulation 9.4 and annex IV to the
Staff Regulations shall be subject to the following conditions and
definitions:
(a) 'Obligation to repatriate', ... shall mean the obligation to return a
staff member and his or her spouse and dependent children, upon separation,
at the expense of the United Nations, to a place outside the country of his
or her duty station.[p 502]
(b) 'Home country', ... shall mean the country of home-leave entitlement...
………………………………………………………………………………….
(d) Payment of the repatriation grant shall be calculated on the basis of
the staff member's pensionable remuneration ...
(e) Payment shall be at the rates specified in annex IV to the Staff
Regulations.
(f) No payments shall be made to local recruits under rule 104.6, to a staff
member who abandons his or her post or to any staff member who is residing
at the time of separation in his or her home country while performing
official duties, provided that a staff member who, after service at a duty
station outside his or her home country, is transferred to a duty station
within that country may be paid on separation a full or partial repatriation
grant at the discretion of the Secretary-General.
(g) A dependent child, for the purpose of repatriation grant, shall mean a
child recognized as dependent... at the time of the staff member's
separation from service. The repatriation grant shall be paid at the rate
for a staff member with a spouse or dependent child to eligible staff
members regardless of the place of residence of the spouse or dependent
child.
…………………………………………………………………………………………
(i)Loss of entitlement to payment of return travel expenses under rule 107.4
shall not affect a staff member's eligibility for payment of the
repatriation grant.
(j) In the event of the death of an eligible staff member, no payment shall
be made unless there is a surviving spouse or one or more dependent children
whom the United Nations is obligated to return to their home country ..."
E. Analysis of the opinion of the Office of Legal Affairs
64. The opinion of the Office of Legal Affairs makes, in its fourth and last
paragraph, an important point which, to the extent that the judgement of the
Administrative Tribunal in Mortishedv. the Secretary-General can be
sustained, is vital to that judgement: "the Staff Rules and payment
practices hitherto governing entitlement to the repatriation grant were
within the Secretary-General's authority". But much of the remainder of the
opinion does not withstand analysis, for these reasons:
- The opinion assumes, and repeats the assumption, that the pertinent United
Nations Staff Rules and "the practice within the common system" were
consistent, and, after so assuming, asks whether those rules and that [p
503] practice have been consistent with Staff Regulation 9.4 and its Annex
IV. The opinion, by so assuming, takes a large step towards the conclusion
which the opinion reaches. But the assumption is unjustified. The practice
within the common system was not (and is not) consistent with the Staff
Rules of the United Nations. To the extent that the specialized agencies had
different staff rules from those of the United Nations, as certainly they
did, the practice may have been consistent with the rules of those agencies.
But to treat the United Nations situation as the same as that of the
specialized agencies is inaccurate, because of their differing rules. The
Staff Rules of the United Nations were indeed consistent with its Staff
Regulations, as the opinion of the Office of Legal Affairs correctly
concludes. By the terms of Rule 109.5 (a), the "obligation to repatriate",
as used in Annex IV of the Staff Regulations, shall mean the obligation to
return a staff member to a place outside the country of his or her duty
station. This rule is consistent with Regulation 9.4 and its Annex IV, in so
far as it excludes payment of repatriation grants to non-relocating staff.
But the practice has been to the contrary.
- The opinion, in its second paragraph, states that the most significant
element of the entitlement to the repatriation grant was considered by the
General Assembly to be the number of years of expatriate service. In view of
the history of the grant (see, in particular, paras. 54 and 116), that is a
questionable conclusion. (The ICSC re-stated the questionable character of
that conclusion at another point in its 1978 report in addition to that
quoted in para. 54: see A/33/30, para. 191.) The number of years of service
appears to have been taken primarily as a convenient formula for calculating
the amount of, rather than entitlement to, the grant.
- The opinion, in its second paragraph, declares that there is no express or
implied provision to the effect that only those who actually made use of the
travel entitlement should receive the grant. The inference seems to be that
those who receive the grant need not travel. Any such inference is
unwarranted. First, the definition of "obligation to repatriate" of Rule
109.5 (a) clearly imports returning to a place outside the country of the
last duty station. Second, the provision of Rule 109.5 (g) - to which the
opinion does not refer - that the repatriation grant shall be paid to
eligible staff members "regardless of the place of residence of the spouse
or dependent child" infers that it shall not be paid to the staff member
regardless of the place of his or her residence. Third, if there is no
express or implied provision to the effect that only those who actually made
use of the travel entitlement should receive the repatriation grant, it does
not follow that those receiving the grant need not travel. Any such
implication is disposed[p 504] of by the terms of Staff Rule 107.4 (b),
which provides, "Entitlement to return travel expenses shall cease if travel
has not commenced within six months after the date of separation", when
those terms are read together with the practice of treating a staff member
as eligible for payment of the repatriation grant for a longer period. (That
practice was codified in August 1979, with the issuance of Staff Rule 109.5
(e) : "Entitlement to repatriation grant shall cease if no claim for payment
of the grant has been submitted within two years after the effective date of
separation.")
- The second sentence of the third paragraph of the legal opinion relies on
the Staff Rule 109.5 (f) (as it then was) "which even provides for
discretion to pay the grant to persons whose final service is within their
home country and who could not therefore be entitled to repatriation
travel...". This rule, the opinion notes, was "reported to and noted by the
General Assembly, which must accordingly have deemed the rule to be
consistent with the intent and purpose of the Regulation". This is a
remarkable reading of what was Rule 109.5 (f). That paragraph then provided
that,
"No payments shall be made to ... any staff member who is residing at the
time of separation in his or her home country while performing official
duties, provided that a staff member who, after service at a duty station
outside his or her home country, is transferred to a duty station within
that country may be paid on separation a full or partial repatriation grant
at the discretion of the Secretary-General."
That is to say, a staff member who has already been repatriated may be paid,
at the discretion of the Secretary-General, either a full or partial
repatriation grant. To infer from this that the Secretary-General is free
-still less obliged — to make repatriation payments to those who never
repatriate but who remain indefinitely abroad at their last duty station is
extraordinary. Any implication that this discretionary authority of the
Secretary-General gave non-repatriating staff members "valid and
enforceable entitlements" would seem unsustainable. The fact that Rule
109.5 (f) was communicated to the General Assembly which must have viewed it
as consistent with Regulation 9.4 proves nothing for the issue which the
legal opinion addresses, and for the opinion to suggest that it does is
profoundly questionable.
- The last sentence of the opinion conjoins a correct statement about the
scope of the Secretary-General's authority with a conclusion about "valid
and enforceable entitlements and obligations" which is not wholly correct or
complete. Once again the Staff Rules and the practice are [p 505]
assumed to be consistent. The opinion acknowledges that what it views as
valid and enforceable entitlements are "subject to change to the same extent
as other conditions of appointment of staff", which of itself is no
affirmation of any acquired right. The opinion does not expressly state that
any such entitlements are valid and enforceable only while in force, though
this may be taken for granted. But where it enters upon questionable ground
is in its inference that the Staff Rules and practice gave rise to valid and
enforceable entitlements and obligations in respect of payment of the
repatriation grant without provision of evidence of relocation. As has been
shown, the arguments it advances to support that conclusion do not support
it, certainly not sufficiently. Arguments which have been elsewhere
advanced to support the more far-reaching — and even less sustainable —
conclusion that such entitlements constitute an acquired right will be
addressed in their place.
13. The Failure to Apply Staff Rule 104.7
65. It is noteworthy that Staff Rule 104.7 does not figure in the opinion of
the Office of Legal Affairs, in the practice of the Secretary-General in
respect of the repatriation grant in so far as the Court has been informed
of it, or in the judgement of the Administrative Tribunal in Mortished v.
the Secretary-General. That rule in pertinent part provides:
"Rule 104.7
International recruitment
(a) Staff members other than those regarded under rule 104.6 as having been
locally recruited shall be considered as having been internationally
recruited. The allowances and benefits in general available to
internationally recruited staff members include: payment of travel expenses
upon initial appointment and on separation for themselves and their spouses
and dependent children, removal of household effects, non-resident's
allowance, home leave, education grant and repatriation grant.
………………………………………………………………………………………………
(c) A staff member who has changed his or her residential status in such a
way that he or she may, in the opinion of the Secretary-General, be deemed
to be a permanent resident of any country other than that of his or her
nationality may lose entitlement to non-resident's allowance, home leave,
education grant, repatriation grant and payment of travel expenses... if the
Secretary-General considers that the continuation of such entitlement would
be contrary to the purposes for which the allowance or benefit was created
..."[p 506]
66. The rule is relevant in more than one respect. In paragraph (a), it
lists the repatriation grant as an "allowance and benefit" which is "in
general available". That is not language suggestive of an acquired right.
Paragraph (c) does speak of an "entitlement" to the repatriation grant, but
provides that that entitlement may be lost - again, not a proviso suggestive
of an acquired right. The entitlement may be lost if, in the opinion of the
Secretary-General, a staff member is "deemed to be a permanent resident" of
a country other than his or her nationality. That is to say, such a staff
member need not have been granted permanent residence as a matter of the law
of the country of the duty station; if the Secretary-General deems the staff
member to have become a permanent resident, that suffices. The
Secretary-General could reasonably conclude that a staff member who declines
to provide evidence of relocation from the country of last duty station, and
who indeed affirms an intention to live indefinitely in the country of the
last duty station, is to be deemed a permanent resident of that country and
that, in that circumstance, continuation of entitlement to payment of the
repatriation grant "would be contrary to the purposes for which the
allowance or benefit was created". As the 1978 Report of the International
Civil Service Commission puts it,
"to pay repatriation grant to a person who remained permanently in the
country of his last duty station was incompatible with the purpose of the
grant... The expatriate staff member's choice to remain in the duty-station
country certainly meant that he had, for some time, ceased to be truly
expatriate." (A/33/30, p. 62.)
And in view of the fact that the Secretary-General possesses such express
discretionary authority in respect of the repatriation grant, it is the more
difficult to regard entitlement to the grant as an acquired right.
14. The Secretary-General Issues Transitional Rule 109.5 (f)
67. The Secretary-General issued a Bulletin of 22 August 1979 which, "with
effect from 1 January 1979", amended the Staff Rules "as a consequence of
the changes to ... the repatriation grant... adopted by the General Assembly
in its resolution 33/119 of 19 December 1978". It specified that Rule 109.5
on the repatriation grant "is amended to make the payment of the grant
conditional upon presentation of actual evidence of relocation with respect
to periods of eligibility arising after 1 July 1979" (ST/SGB/Staff Rules/
l/Rev.5). Rule 109.5 as amended in pertinent part provided:[p 507]
"(d) Payment of the repatriation grant shall be subject to the provision by
the former staff member of evidence of relocation away from the country of
the last duty station. Evidence of relocation shall be constituted by
documentary evidence that the former staff member has established residence
in a country other than that of the last duty station.
(e) Entitlement to repatriation grant shall cease if no claim for payment of
the grant has been submitted within two years after the effective date of
separation.
(f) Notwithstanding paragraph (d) above, staff members already in service
before 1 July 1979 shall retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the grant
which they already had accrued at that date without the necessity of
production of evidence of relocation with respect to such qualifying
service."
15. Reaction in the General Assembly Against the Interpretation of
Resolution 33/119 by the ICSC and the Secretary-General: the Adoption of
Resolution 34/165
68. Reaction in the General Assembly in 1979 to the interpretation of
resolution 33/119 by the ICSC and the Secretary-General was critical. That
reaction will be set forth in extenso, because the construction of it by the
Administrative Tribunal is important to its judgement in Mortished v. the
Secretary-General and because the question of whether or not the judgement
of the Administrative Tribunal gave effect to or derogated from General
Assembly resolution 34/165 is central to the question before the Court.
69. The representative of Australia, referring to the pertinent paragraph of
the ICSC report, expressed interest in the opinion of the Office of Legal
Affairs which, "surprising as it might seem ... made the repatriation grant
appear to be an acquired right" (A/C.5/34/SR.38, p. 16). The representative
of the United States then declared:
"65. In establishing the conditions for entitlement to repatriation
grants,... ICSC had stipulated that staff members already in service before
1 July 1979 should retain the entitlement to repatriation grant
proportionate to the years and months of service qualifying for the grant
which they had already accrued at the date without the necessity of
production of evidence of relocation... The United States Government
strongly believed that that decision distorted the General Assembly's
original intent at the time when the repatriation grant had been instituted.
Nor was it in accordance with the provisions of resolution 33/119 ...[p 508]
66. Because the United Nations administration had failed to provide
adequate internal controls to ensure that the grant was paid only to
individuals who actually left their last country of assignment, the General
Assembly had decided to include in resolution 33/119 the requirement that
payment of the repatriation grant should be 'conditional upon the
presentation by the staff member of evidence of actual relocation, subject
to the terms to be established by the Commission' ... As a sponsor of that
resolution, the United States believed that all member States had understood
that the phrase 'subject to the terms to be established by the Commission'
meant solely establishing the documentation which a former staff member must
submit in order to qualify for a repatriation grant. The United States was
unable to accept the reasoning that the absence of United Nations internal
controls entitled an expatriate employee to receive a repatriation grant for
service prior to the institution of such controls, even though they were not
in fact repatriated outside the country of last service." (A/C.5/34/SR.46,
pp. 13-14.)
70. The representative of Italy followed. He advocated that without
precluding staff's freedom of movement, "a system should be evolved for
determining fulfilment of the conditions for entitlement to the relocation
grant". His delegation had misgivings about the terms of entitlement
promulgated which "required the approval of the General Assembly" (ibid., p.
15).
71. The representative of Japan stated:
"His delegation was prepared to support the decision of ICSC appearing in
paragraph 25 of its report concerning the repatriation grant in the case of
present staff members. The repatriation grant should be paid in accordance
with the rules in force at the time of repatriation. His delegation
regretted, therefore, that the Commission had approved different treatment
for services performed before 1 July 1979." (Ibid., p. 19.)
72. The representative of Australia then declared:
"3. ... his delegation supported the proposal... whereby in future the
repatriation grant would be paid only to staff members who were indeed
repatriated. That proposal, if adopted, would override the legal opinion
referred to in paragraph 24 of the report of ICSC.
4. As indicated in the note by the Secretariat... staff rule 109.5 had been
reported to and noted by the General Assembly, which must accordingly have
deemed the rule to be consistent with the intent and purpose of the staff
regulation. His delegation noted, however, that [p509] nowhere in the
document was it stated that the repatriation grant was payable whether or
not the staff member was repatriated. Staff rule 109.5 (f) indeed gave the
opposite impression, in that it gave the Secretary-General discretion to pay
a grant to a staff member who at the time of separation resided in his home
country. In effect, the rule appeared to permit the payment of travel costs
of, for example, a United States staff member whose home was in Honolulu and
who, after long service in Tokyo, had been transferred and served for a few
years in New York prior to retirement. That in no way implied endorsement of
the idea of paying a repatriation grant to a person who was not repatriated.
5. The legal opinion, in fact, appeared to assume that the repatriation
grant was equivalent to something like the payment of travel costs on
retirement... however ... It was impossible to interpret the rule as meaning
that the repatriation grant would be paid to any staff member who was
entitled to be repatriated, irrespective of whether or not he was
repatriated. For reasons of language, common sense and even law, the opinion
given by the Office of Legal Affairs was wrong." (A/ C.5/34/SR.47, pp. 3-4.)
73. He was followed by the representative of the Syrian Arab Republic, who
stated:
"15. His delegation supported the view of a number of delegations that the
repatriation grant should be paid only to staff members who returned to
their country of origin." (Ibid, p. 5.)
74. The representative of the Federal Republic of Germany concluded:
"With regard to the repatriation grant, the major question in that
connection appeared to be acquired rights, because in order to protect
acquired rights to the repatriation grant the interpretation that had been
used in the past would have to be maintained. However, in the event that an
unduly liberal interpretation had prevailed, to continue to use the same
criterion would be tantamount to carrying the principle of the protection
of acquired rights too far; his delegation therefore supported the view of
the representative of the United States that the repatriation grant should
be given only to those who really were repatriated." (Ibid., p. 7.)
75. The representative of the United Kingdom held that:
"34. With regard to the repatriation grant, his delegation ... did not agree
with the opinion of the Office of Legal Affairs. Although the wording of the
Staff Regulation was somewhat ambiguous, it should [p 510] be recognized
that the grant in question was a repatriation grant, not a resettlement
grant or an extra lump-sum received on retirement. It could not be claimed
that the repatriation grant should be paid in all cases, irrespective of
whether or not the staff member in question returned to his country of
origin. The grant should be given only to those who actually made use of
their travel entitlement in order to return to their own country. His
delegation would support the draft resolution to be submitted by the United
States delegation, since it believed that the draft resolution reflected the
correct interpretation of the Staff Rules and Regulations and that no
acquired rights could be deemed to exist." (Ibid., p. 8.)
76. He was followed by the representative of Spain, who stated:
"38. ... In addition to measures in conformity with the mandate given in
General Assembly resolution 33/119, that document also provided that 'staff
members already in service before 1 July 1979 shall retain the entitlement
to repatriation grant...'. In connection with that striking exception to the
provisions of the rest of the document, his delegation wished to make it
quite clear that the relevant Spanish word 'repatria' was defined by the
Dictionary of the Spanish Academy as 'to return one to his homeland'.
Therefore his delegation shared the view of the ICSC members who,... had
'questioned whether any acquired right could be said to exist to payment of
the repatriation grant to a staff member who did not repatriate or relocate
himself. His delegation did not understand the motivation for what was
stated ... concerning the conditions fixed by ICSC for the repatriation
grant, regarding it as a partial distortion of the clear mandate contained
in General Assembly resolution 33/119,... and believing that in the face of
that unequivocal requirement there could be no distinction of retroactivity
..." (A/C.5/34/SR.47, p. 9.)
77. The representative of the Union of Soviet Socialist Republics declared:
"9. The Soviet delegation was also concerned about the way in which the
provisions relating to the repatriation grant were applied. Under a General
Assembly decision, the grant was to be paid only to persons who returned to
their own countries. Non-adherence to the principle had resulted in
unjustified expenditure and showed the inadequacies of the internal control
system." (A/C.5/34/SR.55, p. 9.)
78. The Chairman of the International Civil Service Commission defended the
action of the ICSC in these terms:
"39. In its report to the General Assembly at its thirty-third session ...
ICSC had stated that it had formed the view that the repa-[p 511]triation
grant should not be paid to staff members who, on separation remained in the
country of their last duty station and so incurred no expenses of
relocation. The Fifth Committee had endorsed the Commission's view and had
included in General Assembly resolution 33/119 a paragraph ... which read:
'Decides that payment of the repatriation grant to entitled staff members
shall be made conditional upon the presentation by the staff member of
evidence of actual relocation, subject to the terms to be established by the
Commission.' That paragraph called for two comments. Firstly, the General
Assembly had clearly mandated the Commission to establish the terms under
which the grant would be paid. Secondly, the resolution, like the
Commission's own report, referred to 'relocation'. The reasons why the
Commission had concluded that the grant should be paid only to a staff
member returning to his own home country were explained in ... the 1978
report.
40. The Commission ... considered the extent to which the restriction now
placed on the enjoyment of the grant could be made applicable to serving
staff members... the relevant provisions of the Staff Rules and Regulations
referred explicitly not to staff members who returned to their home country
but to 'staff members whom the Organization is obligated to repatriate'. It
was on that basis that the practice of paying the grant to staff members who
did not leave their duty station had been established. The majority of
members of the Commission had felt that that practice was in conformity with
the provisions of the Staff Rules and Regulations. Consequently, the
Commission had ruled that the staff members concerned had in fact earned an
entitlement, since the repatriation grant was calculated on a progressive
scale ...
41. The Commission had taken heed of the legal advice given it, not only by
the Legal Counsel of the United Nations but also by the legal advisers of a
number of other organizations; it had also taken into account a judgment by
the Administrative Tribunal of ILO which stated categorically that 'benefits
and advantages accruing to a staff member for service rendered before the
entry into force of an amendment cannot be prejudiced'. The Commission,
which did not claim to be a legal committee, had taken a pragmatic decision
in the interests of economy, judging that it would be unreasonable to impose
upon organizations a measure which would certainly be appealed by staff
members and which, given its jurisprudence, at least one of the
administrative tribunals would reject as being contrary to the fundamental
principles of labour law. The General Assembly was, of course, free to
overrule the Commission, but it should be noted that the governing bodies of
the majority of the other organizations in the common system had, since July
1979, approved the incorporation of the measures announced by the Commission
into their organizations' staff regulations." (Ibid., pp. 9-10.)[p 512]
79. The Under-Secretary-General for Administration, Finance and Management
followed. He stated:
"59. ... he considered it his duty to stress that the decisions taken by
ICSC under its mandate in General Assembly resolution 33/119 were already
being implemented by all the agencies belonging to the common system with
effect from 1 July 1979, which was the date stipulated by ICSC in its
decision. Moreover, it should be mentioned that, in a number of agencies,
the ICSC decision had been considered and accepted by the respective
legislative organs when they had adopted the revisions to their respective
staff rules and regulations. In the United Nations, the ICSC decision had
already been incorporated into the Staff Rules. The provisions contained in
part II of draft resolution A/C.5/34/L.23 would have the effect of revoking
a decision which was in process of implementation by the agencies of the
common system.
60. Thus, the most important consideration to be borne in mind was that the
proposed decision would raise serious doubts as to whether ICSC would be
able to discharge authoritatively the highly important task entrusted to it,
namely to regulate and co-ordinate the conditions of service applied by the
United Nations and the specialized agencies ... Such a decision would also
inevitably be viewed by the United Nations staff as discriminatory treatment
and would undoubtedly lead to appeals to the Administrative Tribunal with
all the potential consequences that such action might entail.
61. Finally, it should be noted that it had been the long-standing practice
in the Organization to implement policy change in the least disruptive
manner, either in order to respect acquired rights or simply to ensure a
smooth transition from one set of arrangements to another... It was in the
same spirit that the Secretary-General and his colleagues in ACC believed
that the Fifth Committee should accept the transitional arrangments
reflected in the ICSC decision regarding the requirement for evidence of
relocation as a condition for payment of the repatriation grant."
(A/C.5/34/SR.60, pp. 11-12.)
80. When the representative of Sierre Leone asked for a clarification of the
draft resolution before the Fifth Committee, the Under-Secretary-General
made the following important statement about the intent and effect of what
came to be General Assembly resolution 34/165:
[p 513] "draft resolution A/C.5/34/L.23 derogated from the ICSC decision in
stipulating that, with effect from 1 January 1980, staff members would not
be entitled to any repatriation grant unless they provided evidence of
relocation away from the country of their last duty station. In effect, that
meant that no period of service by staff members prior to 1 January 1980
would be taken into account unless they also fulfilled the conditions
required to establish their entitlement to the repatriation grant. Hence,
the ICSC decision not to apply the new provisions to any period of service
prior to 1 July 1979 would simply be revoked." (Ibid., p. 23.)
81. An exchange then ensued among the representatives of Syria, Morocco and
the Federal Republic of Germany, in which the former two representatives
advocated restricting payment of the repatriation grant to those who return
to their home country while the latter supported the provision of the draft
resolution before the Committee which provided that the repatriation grant
should be paid to any staff member who relocated away from the country of
the last duty station, no matter what the country. The
Under-Secretary-General then spoke for a third time, declaring that:
"he did not agree with the statement by the representative of the Federal
Republic of Germany that resolution 33/119 made no provision for
transitional measures similar to those submitted in the ICSC report. In
fact, resolution 33/119 stated that 'payment of the repatriation grant to
entitled staff members shall be made conditional upon the presentation by
the staff member of evidence of actual relocation' and it went on to say
'subject to the terms to be established by the Commission'. ICSC had taken a
decision on the matter and had set 1 July 1979 as the date after which those
concerned should pro-vide evidence of their relocation." (Ibid., p. 14.)
82. The representative of the Federal Republic of Germany replied:
"74. ... that the intention of the sponsors of the draft resolution was not
to change the terms of payment of the repatriation grant but simply to
specify that staff members should provide evidence of relocation away from
the country of the last duty station and to set a date for the
implementation of that provision" (A/C.5/34/SR.60, p. 15).
83. The representative of Morocco then asked what documentary evidence of
relocation should be produced (ibid.). The representative of Algeria
cautioned that more study was needed before a decision was taken [p 514] on
the repatriation grant (ibid.). But the Chairman indicated that he did not
agree with the Algerian representative (ibid).
84. The Under-Secretary-General then intervened on the issue for the fourth
time, in a statement which once again is significantly revealing of the
intent of the draft resolution then before the Fifth Committee:
"78. MR. DEBATIN (Under-Secretary-General for Administration, Finance and
Management) recalled that at the previous session, the General Assembly had
decided that the repatriation grant should be made conditional upon the
presentation by the staff members of evidence of actual relocation, subject
to the terms to be established by ICSC. ICSC had subsequently decided that,
with effect from 1 July 1979, payment of the repatriation grant would be
subject to the provision by the former staff member of evidence of
relocation away from the country of the last duty station. As for the
evidence of relocation, ICSC had decided that it would be constituted by
documentary evidence furnished by certain authorities of the country, by
the senior United Nations official in the country, or by the former staff
member's new employer. The effect of the draft resolution would be that
staff members who, by virtue of the ICSC decision, would be entitled to part
of the repatriation grant for periods of service prior to 1 July 1979
without providing evidence of relocation would be unable to receive that
part of the repatriation grant." (Ibid, pp. 15-16.)
85. The representative of the United States made this immediate reply:
"79. ... when the General Assembly had adopted resolution 33/ 119, it had
wanted to make sure that the repatriation grant would be paid only to staff
members relocating away from the country of the last duty station, and it
had asked ICSC to specify what documentary evidence of relocation that staff
members should provide, but not to set dates on which the new provisions
would come into effect" (ibid., p. 16).
86. The representative of Sierre Leone then proposed deletion from the draft
resolution before the Committee of the passage concerning the repatriation
grant (which was the very passage adopted in what came to be resolution
34/165 and which is at issue in the Mortished proceedings) (ibid.). His
proposal was opposed by the representative of Tunisia (ibid.). The
representative of the USSR supported an amendment which would make clear
that those receiving a repatriation grant must return to their countries of
origin (ibid.). That, the representative of Morocco observed was what the
Arabic version of the document said (ibid).
87. At the next meeting, the representative of the Federal Republic of
Germany made the following statement:[p 515] "after holding consultations on
draft resolution A/C.5/34/L.23 the sponsors still believed that paragraph 2
of part II was valid in substance, but recognized that new facts had
emerged. The principal fact was that several agencies had already adopted
the ICSC recommendations, so that adoption of the paragraph might lead to
divergencies in the system. As the sponsors considered that the matter was a
relatively minor one, they had decided to delete paragraph 2 of part II and
to renumber paragraph 3 accordingly." (A/C.5/34/SR.62, p. 2.)
88. An untidy exchange then ensued. The United States reintroduced what the
sponsors had just withdrawn, proposing to add to the draft resolution the
provision:
"Decides that effective 1 January 1980 no staff member shall be entitled to
any part of the repatriation grant unless evidence of relocation away from
the country of last duty station is provided." (Ibid.)
In substance, the position of the United States was opposed by the
representatives of Sierre Leone, Nigeria and Peru and supported by the
representatives of Canada, the Syrian Arab Republic, the USSR, Morocco,
apparently India, Australia, Japan, New Zealand, Yugoslavia, Uruguay and
Spain. Some of these representatives also supported a subamendment to the US
amendment introduced by the representative of the Syrian Arab Republic which
would have confined payment of the repatriation grant to those returning to
their country of origin. That subamendment was defeated by a vote of 45 to
18, with 26 abstentions (ibid., p. 5). The United States amendment was
thereupon adopted by 59 votes to 5, with 24 abstentions. Thereafter, the
whole draft section was adopted by a vote of 87 to none, with 3 abstentions,
and later, the resolution as a whole was adopted with no negative votes in
Committee and in plenary session.
16. The Intent of the General Assembly in adopting Resolution 34/165
89. The debate in the Fifth Committee has been so fully reproduced because
it is critical to an understanding of what the General Assembly intended in
adopting resolution 34/165. It is believed that that record demonstrates the
following:
- the large majority of the General Assembly was of the view that payment of
the repatriation grant to staff members who remain in the country of their
last duty station was not consistent with the Staff Regulations and Rules
as they existed before the promulgation of the transi-
[p 516]tional Staff Rule 109.5 (f) and as they would be with the repeal of
that transitional rule (see paras. 52, 56, 59, 69-77, 82-83, 85-88, supra);
- the large majority of the General Assembly was of the view that, in
issuing the transitional rule, the ICSC and the Secretary-General acted in
derogation of the terms and intent of resolution 33/119 (see paras. 68-77,
81-88, supra);
- the responsible United Nations Under-Secretary-General recognized and
affirmed that, if resolution 34/165 were to be adopted (in the terms in
which it was adopted), it would manifest the intent of the General Assembly
to deny all staff members any part of the repatriation grant unless they
provided evidence of relocation away from the country of their last duty
station, and would have that effect; that no period of service prior to 1
January 1980 would be taken into account unless staff members fulfilled this
evidentiary condition of entitlement; and that the ICSC recommendation and
the transitional rule implementing it would "simply be revoked". "The effect
of the draft resolution would be that staff members who, by virtue of the
ICSC decision, would be entitled to part of the repatriation grant for
periods of service prior to 1 July 1979 without providing evidence of
relocation would be unable to receive that part of the repatriation grant"
(see paras. 80, 84, supra);
- the General Assembly heard, understood and accepted these conclusions of
the Under-Secretary-General and adopted resolution 34/165 with a view to
assuring that these conclusions would be given effect as of 1 January 1980.
90. Despite the clarity and vigour of this record, the Administrative
Tribunal took another view of it which will be shortly examined.
III. The Administrative Tribunal's Judgement in Mortished v. the
Secretary-General
91. In its judgement in Mortished v. the Secretary-General of the United
Nations the Administrative Tribunal concluded that,
"By making payment of the Applicant's repatriation grant conditional on the
production of evidence of relocation, the Respondent failed to recognize the
Applicant's acquired right, which he held by virtue of the transitional
system in force from 1 July to 31 December 1979 and set forth in Staff Rule
109.5 (f)." (Para. XVI.) [p 517]
In so deciding, the Tribunal reached certain anterior conclusions, which
will be addressed in the turn in which the Tribunal proffered them. Then the
Tribunal's main conclusion will be analysed.
1. Were Special, Contractual Obligations of Relevance Assumed
TowardsMortished ?
92. In paragraph VI of its judgement, the Tribunal held:
"The Tribunal must now consider whether the Applicant has rights on which he
may rely as regards the repatriation grant.
The Tribunal notes that at the time of his appointment to the United Nations
on 30 July 1958, the Applicant, who had started work with ICAO on 14
February 1949, received from the Office of Personnel a personnel action form
which expressly stated: 'Service recognized as continuous from 14 February
1949' and 'Credit towards repatriation grant commences on 14 February 1949.'
Although these statements do not appear in the letter of appointment
itself, they nevertheless unquestionably constitute the explicit recognition
by the United Nations of entitlement to the repatriation grant, and
validation for that purpose of more than nine years' service already
completed with ICAO.
In the Applicant's case, a formal reference was thus made at the time of
appointment to the repatriation grant and to the principle of the
relationship between the amount of that grant and length of service. As a
result, the Applicant is in the position noted by the Tribunal in Judgements
Nos. 95 and 142 cited above, namely, that special obligations towards him
were assumed by the United Nations."
It is submitted that the conclusions which the Administrative Tribunal draws
from its analysis of the personnel action form are unfounded for several
reasons.
93. The "Letter of Appointment" of Mortished to which the Tribunal makes
reference in general terms in paragraph II of its judgement begins:
"You are hereby offered a permanent appointment in the Secretariat of the
United Nations, in accordance with the terms and conditions specified below
and subject to the provisions of the Staff Regulations and Staff Rules
together with such amendments as may from time to time be made to such Staff
Regulations and such Staff Rules ..."[p 518]
The letter dated 5 August 1958 describes Mortished's initial assignment and
salary but says nothing of the various allowances to which Morti-shed is
entitled except that the salary specified does not include such allowances.
Mortished accepted appointment on 15 August 1958 in these terms:
"I hereby accept the appointment described in this letter, subject to the
conditions therein specified and to those laid down in the Staff Regulations
and the Staff Rules. I have been made acquainted with these Regulations and
Rules, a copy of which has been transmitted to me with this letter of
appointment." (Mortished v. the Secretary-General of the United Nations,
Respondent's Answer, Annex 14.)
A letter to Mortished of 21 March 1958 (negotiations about Mortished's
proposed transfer took some time) attaches an Annex which sets out his
various allowances. Specification is extensive: the Annex covers travel
expenses, movement of household goods, excess baggage, costs of
installation, dependency allowances, education grant, non-resident's
allowance, pension fund rights, and home leave entitlements. Nothing
whatsoever is said of a repatriation grant. (Ibid., Ann. 15.)
94. When Mortished was about to enter upon duty at the United Nations, he
received from the Office of Personnel a personnel action form which
contained footnoted notations to his designation of a "Permanent
Appointment", among which were the following:
"Service recognized as continuous from 14 February 1949.
Entitled to Installation Grant and Dependency Rate. Credit toward
repatriation grant commences on 14 February 1949. Entitled to transportation
of household effects. Next home leave entitlement in 1960."
(Emphasis supplied.) (As quoted in I.C.J. Pleadings, Application for Review
of Judgement No. 273 of the United Nations Administrative Tribunal, Written
Statement of the United States of America, II, A.)
It is understood that, in United Nations contractual usage, a personnel
action form such as this is not regarded as part of the contract between a
staff member and the United Nations. However, even if it is treated as part
of the contract — and the Tribunal infers that it is, for this is the whole
basis of its concluding that "special obligations" were assumed by the
United Nations towards Mortished in respect of the repatriation grant — the
notation does not sustain the conclusion which the Tribunal reaches. On the
contrary, the notation belies the Tribunal's conclusion, for two reasons:
- The personnel action form itself specifies that Mortished is "entitled to
an installation grant and dependency rate, "entitled" to transportation of
household effects, that he enjoys home leave "entitlement", but only that,
"Credit toward repatriation grant commences on 14 February 1949".[p 519]
The Administrative Tribunal disregards this distinction by concluding that
the notation constitutes "the explicit recognition" by the United Nations of
"entitlement" to the repatriation grant. Yet the distinction between an
entitlement and a credit is considerable. One has a rightful claim to an
entitlement but a "credit toward" something is or may be merely computative.
- But, if one overlooks the distinction made in the personnel action form on
which the Tribunal relies between "entitlements" to various benefits and
"credit" toward the repatriation grant, what does the notation about the
repatriation grant say? From the weight which the Tribunal assigns to this
notation — that by reason of it "special obligations towards" Mortished
"were assumed by the United Nations" — one would suppose that special
relevant obligations were so assumed. In fact, this is not the case. The
notation simply speaks of "repatriation grant". It says nothing whatsoever
about the conditions of that grant. It sheds no light whatsoever on whether,
as a condition of entitlement to the grant, Mortished would or would not
have to leave the country of his last duty station, or furnish evidence in
that regard. Thus, in regard to the question at issue, at issue before the
Administrative Tribunal and now before this Court, the notation on which
the Tribunal relied to show that the United Nations assumed special
obligations towards Mortished shows no such thing.
95. The Tribunal's reliance on the notation on the personnel action form is
the less persuasive since the Tribunal does not cite and cannot cite any
evidence to sustain the claim that Mortished in 1958 understood that
notation to mean that he would be entitled to a repatriation grant
regard-less of whether he left the country of his last duty station. That is
understandable, for any such claim would be inherently implausible, and for
more than one reason. First, the question of a repatriation grant was not
brought to Mortished's attention in the annex to the letter of 21 March 1958
which listed his various allowances and said nothing of it. Second, if
Mortished's reading of the Staff Regulations and Rules brought the subject
to his mind, nothing in them would have given any suggestion that he would
be entitled to the repatriation grant were he to remain at his last duty
station. Third, it would be hard to believe that, in 1958, Mortished, in
Montreal, contemplated retiring some 20 years later in New York or Geneva in
which he was yet to work and that this contemplation was a material
consideration in his agreement to his contract with the United Nations.
Fourth, there is no evidence that the terms and conditions to be met in
order to receive the repatriation grant were the subject of discussion or
correspondence with Mortished at the time he transferred to the United
Nations; if there were any such evidence, it can be assumed that his counsel
would have produced it.
96. The Administrative Tribunal states that Mortished "is in the posi-[p
520] tion noted by the Tribunal in Judgements Nos. 95 and 102... namely,
that special obligations towards him were assumed by the United Nations".
But this is just the position in which Mortished was not, for no special
obligations towards Mortished were assumed by the United Nations in respect
of the issue at bar, i.e., entitlement to a repatriation allowance
regardless of relocation. The contrast with the cases relied upon by the
Tribunal is instructive. In Judgement No. 95 Sikand v. the Secretary-General
of the United Nations, the Tribunal, while rejecting the Applicant's claim,
held that its
"jurisprudence has established that the terms and conditions of employment
of a staff member with the United Nations may be expressed or implied and
may be gathered from correspondence and surrounding facts and circumstances"
(para. III)
and it held that, in that case, there was correspondence which upheld one of
the Applicant's claims. But in this case, no correspondence, conversation,
paper or surrounding fact can be cited, apart from the notation on the
personnel action form which, for the reasons set forth above, hardly
provides support for the conclusion that the United Nations assumed any
special obligations towards Mortished on the matter at issue. In Judgement
No. 142, Bhattacharyya v. the Secretary-General of the United Nations, the
Tribunal relied on the quoted passage from the Sikand case and held that
conversations and correspondence with the Applicant at the time he was
engaged about the prospects of renewal of a fixed-term contract created in
the Applicant's mind "a legitimate expectancy of continued employment with
UNICEF ..." (para. IV). But in this case, relevant conversations,
correspondence, memoranda, etc., running between the United Nations and
Mortished are lacking. Nor are the surrounding circumstances at the time of
the transfer of Mortished in 1958 probative. There was no evidence before
the Tribunal that, as early as 1958, it actually was the practice of the
United Nations to pay repatriation grants to those who remained at their
last duty station. If it be presumed that that was the practice, which may
be a reasonable presumption, there is no evidence that Mortished knew or
cared about any such practice. There was no reduction of any such practice
to a Staff Regulation, Rule, Information Circular or other administrative
paper of general distribution of which Mortished would have had the benefit
whether or not he knew of it. Thus the cases cited by the Administrative
Tribunal appear to derogate from rather than support Mortished's claim.
97. Does the Tribunal hold in paragraph VI of its judgement that Mortished
had a contractual right to a repatriation grant and one which obtains
regardless of his remaining at his last duty station? A passage from
paragraph XV of the judgement so infers:[p 521]
"The Tribunal has been required to consider on a number of occasions
whether a modification in the pertinent rules could affect an acquired
right. It has held that respect for acquired rights carries with it the
obligation to respect the rights of the staff member expressly stipulated in
the contract. The Tribunal pointed out, in paragraph VI above, that
entitlement to the repatriation grant has been explicitly recognized at the
time of the Applicant's appointment, together with the relationship between
the amount of the grant and the length of service. The Tribunal also pointed
out in paragraph VII above that at the time of the Applicant's entry on
duty, payment of the grant did not require evidence of relocation to a
country other than that of the last duty station."
98. For the reasons set out above, it is submitted that any claim that
Mortished has a special, contractual right to payment of a repatriation
grant regardless of his failure to present evidence of his relocation from
the country of his last duty station cannot be sustained. Not only cannot it
not be sustained under the facts of this case; it appears difficult to
sustain under the jurisprudence of the Administrative Tribunal.
2. Case-Law of the Administrative Tribunal's Cuts Against Mortished's Claim
99. A number of cases are in point. In Judgement No. 19, Kaplan against the
Secretary-General of the United Nations, the Tribunal held that:
"In determining the legal position of staff members a distinction should be
made between contractual elements and statutory elements:
All matters being contractual which affect the personal status of each
member — e.g., nature of his contract, salary, grade.
All matters being statutory which affect in general the organization of the
international civil service, and the need for its proper functioning —
e.g., general rules that have no personal reference.
While the contractual elements cannot be changed without the agreement of
the two parties, the statutory elements on the other hand may always be
changed at any time through regulations established by the General Assembly,
and these changes are binding on staff members.
………………………………………………………………………………………………
With regard to the case under consideration the Tribunal decides that a
statutory element is involved and that in fact the question of the
termination of temporary appointments is one of a general rule subject to
amendment by the General Assembly and against which acquired rights cannot
be invoked." (Para. 3.) [p 522]
If the terms of termination of temporary appointments are subject to
"statutory" amendment by the General Assembly, terms which though of general
application have the most immediate effect on particular individuals, is
the General Assembly less free to legislate on evidence of eligibility for
a repatriation grant? Conditions for entitlement to the repatriation grant
apply to all staff members equally and therefore would seem to be
"statutory" as that term is used in the Kaplan case. Moreover, as the
Administrative Tribunal points out in its Judgement in Mortished v. the
Secretary-General of the United Nations,
"The summary provisions contained in the letter of appointment are
supplemented by documents of general application which are much more
detailed. The letter of appointment refers to these in stipulating that the
appointment is offered 'subject to the provisions of the Staff Regulations
and Staff Rules, together with such amendments as may from time to time be
made to such Staff Regulations and such Staff Rules'. Thus, by virtue of
that provision, documents of general application are made an integral part
of the contract and the staff member accepts in advance any amendments which
may be made to them." (Para. II.)
100. In Judgement No. 202, Quéguiner v. the Secretary-General of the
Inter-Governmental Maritime Consultative Organization, the issue at bar was
dealt with by the United Nations Administrative Tribunal in the following
way:
"The question posed by the present case is thus to determine whether the
Applicant has an acquired right to the education grant system as established
when he entered upon his duties, an acquired right which cannot be
prejudiced unless compensation is paid.
At the time when the Staff Rules were amended, the Applicant was bound by a
contract whose terms, set out in a letter from the Secretary-General dated 2
April 1971, were accepted by the Applicant on 30 April 1971. This letter,
which extended a previous contract, contains a number of provisions
concerning the Applicant personally: post, duration of contract,
administrative status, salary, obligation to subscribe to IMCO accident
insurance. It also refers to the conditions of employment and fundamental
rights, and the duties and obligations, laid down in the Staff Regulations
and Staff Rules of the Organization, 'due account being taken of any
subsequent amendments to those texts'.
This latter provision expressly records an essential element in the
Applicant's contractual situation. He agreed in advance that amendments to
the Staff Regulations and Staff Rules would be applicable to him. Thus, the
competent authorities of the Organization may in [p 523]
principle amend unilaterally the conditions of employment and fundamental
rights and the rights and obligations laid down in the Staff Regulations and
Staff Rules.
The limitation of the right of amendment set out in Staff Regulation 12.1
obviously concerns the rights of the staff member expressly stipulated in
the contract. In Judgement No. 19 (Kaplan), the Tribunal stated that all
matters were contractual which affected 'the personal status of each member
— e.g., nature of his contract, salary, grade'. In the present case, no
benefit accruing to the Applicant, apart from his salary, was mentioned in
his contract.
Respect for acquired rights also means that the benefits and advantages
accruing to a staff member for services rendered before the entry into force
of an amendment cannot be prejudiced. An amendment cannot have an adverse
retroactive effect in relation to a staff member, but nothing prevents an
amendment to the Staff Rules where the effects of such amendment apply only
to benefits and advantages accruing through service after the adoption of
such amendment (Judgement No. 82, Puvrez).
The Applicant contends that the education grant, although it constitutes
additional remuneration, is of a personal nature, and hence contractual, and
that it constitutes a determining consideration in acceptance of the
contract which binds a staff member to the Organization.
………………………………………………………………………………………………
The legality of comparable measures concerning the non-resident's allowance
(Judgment No. 51, Poulain d'Andecy, ILO Tribunal) and the allowances payable
under the definition of dependency (Judgements No. 82, Puvrez and No. 110,
Mankiewicz) has been recognized, and the Tribunal sees no valid reason for
treating the education grant differently." (Paras. IV-VI.)
If IMCO is free to alter the conditions of payment of an education
allowance, why is not the United Nations free to alter the conditions of
payment of a repatriation grant? Why is it not the more free since in the
Mortished case the rights of the staff member were not "expressly
stipu-lated in the contract"? (There is the distinct argument, noted in
Qu!!!eguiner, that benefits and advantages accruing to a staff member for
services rendered before the entry into force of the amendment cannot be
prejudiced; that is an argument which will be addressed in the Mortished
context below.)
101. Further light on the contractual bounds of acquired rights of
international civil servants is shed by the recent decision of the ILO
Administrative Tribunal in In re de los Cobos and Wegner, Judgment No. 391,
where it was held:[p 524]
"6. A right is acquired when he who has it may require that it be respected
notwithstanding any amendments to the rules. A right is acquired, for
example, in one or other of the following circumstances. First, a right
should be considered to be acquired when it is laid down in a provision of
the Staff Regulations or Staff Rules and is of decisive importance to a
candidate for appointment. To impair that right without the official's
consent is to impair terms of appointment which he expects to be maintained.
Alternatively, a right will be acquired if it arises under an express
provision of an official's contract of appointment and both parties intend
that it should be inviolate. Thus not all rights arising under a contract of
appointment are acquired rights, even if they relate to remuneration: it is
of the essence that the contract should make express or implied provision
that the rights will not be impaired. Thus there may be an acquired right to
application of the principle that an allowance will be paid, but not
necessarily to the method of calculation — in other words, to the actual
amount — of that allowance." (At pp. 7-8.)
Can it be maintained in the Mortished case that Mortished's right to a
repatriation allowance regardless of remaining at his last duty station was
laid down in a provision of the Staff Regulations or Rules and was of
"decisive importance" — or any importance — to that candidate for
appointment? Can it be maintained that that right arises "under an express
provision" of Mortished's contract which both parties intended to be
"inviolate"? If there is an acquired right to an allowance, but not
necessarily to the method of its calculation, can it not be said that, at
most, Mortished has an acquired right to a repatriation grant but not to the
conditions of eligibility for its payment?
102. Similar reasoning was advanced by the ILO Administrative Tribunal in
In re Elsen and Elsen-Drouot, Judgment No. 368, p. 7, where it held:
"7. It is quite clear that expatriation, education and leave expense
allowances are matters of importance to someone who joins the staff of an
international organization. The question therefore arises whether the
outright abolition of such allowances would in principle violate an acquired
right. There is, however, no acquired right to the amount and the conditions
of payment of such allowances. Indeed the staff member should expect
amendments to be prompted by changes in circumstances if, for example, the
cost of living rises or falls, or the organization reforms its structure, or
even finds itself in financial difficulty. Hence the reduction in the
expatriation allowance paid to the complainants does not infringe any right
which was of decisive importance to them in accepting appointment and which
may be regarded as acquired. Moreover, there is no clause in their
contract[p 525]which even tacitly guaranteed them any such right. The plea
that acquired rights were infringed therefore fails."
103. Another case of special relevance is that of Ho v. the
Secretary-General of the United Nations, Judgement 125. In that case, Ho
complained that he had been wrongfully deprived of his entitlement to home
leave. He had previously enjoyed home leave when he held the status of
internationally recruited official. However, he opted to change his status
to that of a permanent resident of the United States. The Secretary-General,
exercising his authority under Rule 104.7 (quoted supra in para. 65),
decided that Ho had lost his entitlements to all international benefits,
including home leave, because he had acquired permanent US residence status.
The Administrative Tribunal relied on Rule 104.7, and held that, in
accordance with it, Ho, "by acquiring permanent resident status, lost his
home leave entitlement" from the date on which the United States Immigration
and Naturalization Service made effective his permanent residence (at p.
122). It held that,
"The decision taken ... on behalf of the Secretary-General ... constitutes a
legally unassailable application of Staff Rule 104.7, which authorizes a
decision that the 'continuation of such entitlement ... would be contrary
to the purposes for which the allowance or benefit was created'. The
Tribunal considers that, generally speaking, to authorize a staff member to
benefit from home leave when as a permanent resident he is considered as
having been recruited locally would be an anomaly contrary to the spirit -
that is, the meaning and purpose — of home leave as established and
regulated by the Staff Regulations and Rules." (Ibid.)
The Tribunal continued:
"In order to determine whether all the conditions laid down in the Staff
Rules (Rules 104.7 and 105.3) are fulfilled and whether home leave
entitlement exists, it is necessary to consider the staff member's legal
status at the time when that entitlement should have been exercised.
Hence there cannot be a question of home leave entitlement acquired
previously nor of a possible restoration of that entitlement: even assuming
that a staff member has fulfilled all the other conditions required for the
possible existence of that entitlement, the en-titlement can only exist in
law if the staff member, at the time when he is to begin exercising that
entitlement, meets all the requirements laid down in the Staff Rules,
particularly the rule which provides that he must have been recruited
internationally." (Pp. 122-123.)[p 526]
104. The applicability of the Ho case to Mortished's is striking. In both
cases, the "entitlements" of home leave and the repatriation grant are
referred to, together, in the same way and on the same plane, in Rule 104.7.
In both cases, the matter of residential status is paramount, and, in both
cases, Messrs. Ho and Mortished opted to change their residential status so
as to take up permanent residence in the country of their duty station, in
Ho's case, de jure, in Mortished's case, apparently de facto. Consequently,
by the terms of Rule 104.7, in both cases the Secretary-General was and is
free to consider that Mortished as well as Ho became a permanent resident of
a country other than that of his nationality. (If he could not reasonably
reach that opinion, the point of Mortished's claim is questionable: he
cannot at once argue that he wishes to buy a house in and live on in
Switzerland indefinitely and wishes neither to return to Ireland nor go to a
third country and yet maintain that he cannot be "deemed" to have changed,
in fact if not in law, the residential status he originally enjoyed as an
internationally recruited official; see para. 66, supra.) In any event, even
if Mortished, unlike Ho, is not deemed to have changed his permanent
residence, in both cases whether the "entitlement exists" must be decided
"at the time when the entitlement should have been exercised" — "the
entitlement can only exist in law" if the staff member, "at the time when he
is to begin exercising that entitlement", meets all the requirements laid
down by the Staff Rules. Thus Mortished, like Ho, having chosen to exercise
an entitlement when the entitlement on which he relies no longer exists, as
a matter of law must fail. And finally, to deny Ho his home leave while
granting Mortished the repatriation grant "would be an anomaly contrary to
the spirit - that is, the meaning and purpose" of the repatriation grant as
established and regulated by the Staff Regulations and Rules.
105. However, it may be argued that, if paying Mortished is contrary to "the
spirit — that is, the meaning and purpose" of Staff Rule 109.5 as it existed
before 1979 and is contrary to it as it exists today, it is not contrary to
the spirit or terms of Staff Rule 109.5 (f) as that transitional rule
existed in 1979. That is quite true. However, a difficulty with that
argument is that, in fact, Mortished exercised his claimed entitlement to a
repatriation grant when that entitlement no longer existed, that is to say,
he relied upon the transitional rule when the transitional rule had
transited and was no longer in force.
3. The Tribunal's Summary of the Evolution of Practice concerning the
Repatriation Grant
106. The Tribunal turns after its conclusion about "the special
obligations" assumed towards Mortished to a description of the evolution of
the repatriation grant. It notes in paragraph VII that the link between the
repatriation grant and return to the home country was broken in the Staff
Rules as early as 1953. "The literal meaning of the term 'repatriation' was
abandoned." It cites in paragraph VIII the recommendations submitted in[p
527]
1952 by the Consultative Committee on Administrative Questions to the
Administrative Committee on Co-ordination, and concludes:
"However, the Tribunal observes that the document produced in 1974 [by the
CCAQ] proves that the system proposed by the Consultative Committee on
Administrative Questions as early as 1952 was in effect followed to the
benefit of staff members, even though it was not explicitly embodied in any
United Nations regulation. The Parties considered the question whether a
practice followed consistently for nearly 30 years could generate an
acquired right within the meaning of Staff Regulation 12.1. In view of the
particular situation of the Applicant, the Tribunal finds that it is not
required to adjudicate that question in abstracto."
Thus the Tribunal does not pass in its judgement on whether the practice of
paying repatriation grants to those remaining in their last duty station
"could generate an acquired right".
107. The Tribunal proceeds to describe the respective spheres of competence
of the General Assembly and the Secretary-General in respect of the
repatriation grant (paras. IX and X). It concludes that the Staff
Regulations "expressly acknowledge that the repatriation grant scheme falls
within the scope of the rule-making authority of the Secretary-General ..."
(para. IX).
108. The Tribunal then turns to the pertinent ICSC reports and to the
discussions of the General Assembly, particularly in adopting resolution
33/119. In describing the adoption of resolution 33/119, the Tribunal
acknowledges that, when Japan proposed that "payment of the repatriation
grant to entitled staff members shall be made conditional upon the
presentation by the staff member of evidence of actual relocation, subject
to the terms to be established by the Commission", the terms the Japanese
representative had in mind related to the provision of evidence. But it then
quotes from the intervention of the Under-Secretary-General (see para. 59,
supra) in which "some flexibility" was suggested since "acquired rights were
involved", and states: "The Tribunal notes that these arguments [of the
Under-Secretary-General] were not challenged and that at no point in the
discussion was the nature of the terms to be established by ICSC specified."
(Para. XI.)
109. It is submitted that, in concluding the arguments of the
Under-Secretary-General were not challenged, the Tribunal did not construe
the record accurately. As is pointed out above in paragraph 59, right after
the Under-Secretary-General spoke, three representatives replied in terms
which demonstrate that they wished no "flexibility" to be shown. No one
expressly referred to the Under-Secretary-General's reference to acquired
rights, but the tenor of the remarks of the three representatives gives no
trace of acquiescence in that argument. Moreover, the Tribunal is impre-[p
528] cise in stating that at no point in the discussion was the nature of
the terms to be established by the ICSC specified, for the representative of
Japan, as sponsor, spoke explicitly to that point (he is quoted in para. 59,
supra). These are points of importance, because they bear on whether, in
issuing the transitional Rule 109.5 (f), the ICSC and the Secretary-General
acted within the scope of the authority afforded them by resolution 33 /119.
The Tribunal maintains (in para. XIV) that the transitional rule was adopted
by the Secretary-General "in accordance with a procedure laid down by the
General Assembly in its resolution 33/119 ...". But in truth the
Secretary-General acted in derogation of the terms of resolution 33/119 and
the intent of the General Assembly in adopting those terms.
110. The Tribunal then proceeds to recall the action of the ICSC in 1979 in
promulgating the transitional rule, noting that it relied on the advice
received from the Office of Legal Affairs of the United Nations. The
Tribunal itself does not dissect the legal opinion which contained that
advice. It notes that the Secretary-General, "exercising the authority
vested in him by Staff Regulation 9.4 and Annex IV to the Staff
Regulations", inserted into Staff Rule 109.5, subparagraphs (d) and (f),
which provided for evidence of relocation and for the transitional provision
waiving that requirement for staff members in service before 1 July 1979
(para. XII). The Tribunal observed that this was "the first time that a
provision of the Staff Rules acknowledged that entitlement to the
repatriation grant might exist without evidence of relocation being
provided" (para. XIII).
4. The Question of Retroactive Effacement of Mortished's Entitlement
111. The Tribunal next poses the question of retroactive effacement in these
terms:
"XIV. The question therefore arises whether the entitlement as described in
the provision quoted above, which came into force on 1 July 1979, having
been adopted by the Secretary-General in accordance with a procedure laid
down by the General Assembly in its resolution 33/119, can have been effaced
retroactively by the Secretary-General's deletion of subparagraph (f) in
pursuance of resolution 34/165."
This statement about retroactive effacement appears to assume a position
rather than to justify it. Resolution 34/165 is prospective in effect. It
applies to staff members retiring after 1 January 1980. It does not purport
to require staff members who earlier retired, and who received the
repa-triation grant even though they remained within the country of their
last duty station, to return their grants. Thus resolution 34/165 can be
reasonably regarded as retroactively effacing an acquired right of those
who retire after 1 January 1980 only if there was such an acquired right.
That is[p 529] the paramount issue at bar. But posing the question in terms
of retroactive effacement adds nothing to the analysis of the problem one
way or the other.
5. The Tribunal's Construction of the Intent of the General Assembly in
Adopting Resolution 34/165
112. The Tribunal's Judgement continues by reciting the action in the
General Assembly leading to the adoption of resolution 34/165, and makes the
following surprising statements in that regard:
"The Tribunal notes that at no time did the General Assembly contemplate
supplementing or amending the provisions relating to the repatriation grant
contained in the Staff Regulations. Nor did the Assembly examine the text of
Staff Rules in force since 1 July 1979, and it never claimed that there was
any defect in the provisions introduced on that date which diminished their
validity. The Assembly simply stated a principle of action which the
Secretary-General acted upon in establishing a new version of Staff Rule
109.5 which, from 1 January 1980, replaced the version previously in force
on the basis of which the Applicant could have obtained the repatriation
grant."
The Tribunal might have noted that the General Assembly did not supplement
or amend the Staff Regulations because it was of the view that they said
what the General Assembly had always intended them to say; in the General
Assembly's view, they were not legitimately open to a con-struction which
permitted payment of the repatriation grant to those remaining at their last
duty station. As for the Tribunal's statement that the General Assembly did
not examine the text of the Staff Rules in force since 1 July 1979 and never
claimed that there was any defect in the provisions introduced on that date
which diminished their validity, it is difficult to reconcile with the
record. In a literal sense, it is true that General Assembly resolution
34/165 does not expressly criticize the ICSC and the Secretary-General for
misconstruction and misapplication of resolution 33/119; that is not the way
in which General Assembly administrative resolutions are customarily cast.
But a review of the record of the Fifth Committee in adopting resolution
34/165 (see paras. 68-90, supra) demonstrates that, contrary to what the
Tribunal says, the Committee energetically and critically examined the text
of the pertinent Staff Rules in force since 1 July 1979, and that the large
majority of those who spoke (and presumably of those who voted for) the
United States amendment to what became resolution 34/165 believed that
those Rules contained a glaring departure from resolution 33/119 - the
transitional clause. If it is correct to infer, as the Tribunal appears to
do, that the General Assembly did not go further to hold that the
transitional clause was invalid even during the period when it was in force,
that hardly supports construing resolution 34/165 to permit [p 530] payment,
whether direct or indirect, to those who thereafter claim the repatriation
grant without providing evidence of relocation.
6. The Tribunal's Holding that the Repatriation Grant Was Earned
113. The Tribunal comes to the heart of its Judgement in paragraphs XV and
XVI. Paragraph XV reads:
"The Tribunal has been required to consider on a number of occasions
whether a modification in the pertinent rules could affect an acquired
right. It has held that respect for acquired rights carries with it the
obligation to respect the rights of the staff member expressly stipulated in
the contract. The Tribunal pointed out, in paragraph VI above, that
entitlement to the repatriation grant had been explicitly recognized at the
time of the Applicant's appointment, together with the relationship between
the amount of the grant and the length of service. The Tribunal also pointed
out in paragraph VII above that at the time of the Applicant's entry on
duty, payment of the grant did not require evidence of relocation to a
country other than that of the last duty station. Further, the Tribunal held
that respect for acquired rights also means that all the benefits and
advantages due to the staff member for services rendered before the coming
into force of a new rule remain unaffected. The repatriation grant is
calculated according to length of service. The amount of the grant is
'proportional to the length of service with the United Nations', as stated
in Annex IV to the Staff Regulations. This link was explicitly reaffirmed in
Staff Rule 109.5 (f), which refers to 'the years and months of service
qualifying for the grant which [staff members] already had accrued' as of 1
July 1979. Consequently, the link established by the General Assembly and
the Secretary-General between the amount of the grant and length of service
entitles the Applicant to invoke an acquired right, notwithstanding the
terms of Staff Rule 109.5 which came into force on 1 January 1980 with the
deletion of subparagraph (f) concerning the transitional system. As in the
case of Judgement No. 266 (Capio), it is incumbent upon the Tribunal to
assess the consequences of any failure to recognize an acquired right."
114. The foregoing conclusions are open to question on more than one count.
The Tribunal begins with restating its reliance on the rights of the staff
member "expressly stipulated in the contract". But, as noted above, it does
not point out that Mortished's contract as such says nothing about a
repatriation allowance, expressly or otherwise, and that the "credit" re-[p
531]ferred to in the personnel action form says nothing of whether it goes
to a repatriation grant that does or does not require relocation as a
condition of its payment.
115. The Tribunal then reaffirms that, at the time of Mortished's entry on
duty, payment of the grant did not require evidence of relocation to a
country other than that of the last duty station. It does not state what is
the factual basis for the conclusion that, as early as 1958, the United
Nations actually was paying repatriation grants to those who remained at the
last duty station. It is not a supposition lightly to be made because, in
1958, the number of officials who had retired was still relatively small in
view of the fact that the Organization had been in existence only for some
12 years. But there is no evidence to the contrary. It then proceeds to
maintain that "respect for acquired rights also means that all the benefits
and advantages due to the staff member for services rendered before the
coming into force of a new rule remain unaffected". To show that the
repatriation grant is compensation for services rendered, the Tribunal
argues that it is "calcu-lated according to length of service" and
concludes: "Consequently, the link established by the General Assembly and
the Secretary-General between the amount of the grant and length of service
entitles the Applicant to invoke an acquired right ..."
116. It is submitted that the foregoing analysis is unpersuasive for the
following reasons. The drafting history of the repatriation grant shows that
the purpose of the grant was not a salary supplement progressively earned,
but rather an end-of-service payment to help meet the costs which a
repatriating staff member would incur after service abroad (see para. 54,
supra). Such end-of-service payments are no more "earned" during service
than a termination indemnity is "earned" during service. Terminal or
separation payments are meant to assist a staff member to cope with
circumstances arising on separation, they are not a reward for current
service. The amount payable on separation, but not the entitlement as such,
is determined by reference to years of service abroad. The
Secretary-General's answer in the proceedings before the Administrative
Tribunal in the Mortished case correctly summarizes the situation:
"39. Annex IV to the Staff Regulations contains a table which indicates how
repatriation grant benefits are calculated. The criteria used in determining
the amounts of the benefits are 'years of continuous service away from home
country', the status of the staff member at the time of separation (i.e.,
the staff member's category and whether he or she has spouse or dependants)
and the pensionable remuneration of the staff member at the time of
separation. The crucial time of assessment is always the time of separation.
40. The 'years of continuous service away from home country' may [p 532] be
reduced or even totally eliminated if a staff member, after service away
from the home country, is transferred back to a duty station within his or
her own country. In 1964, the CCAQ agreed that entitlements in years of
continuous service away from the home country should be reduced by one year
in respect of each six months of completed service in the home country and
that in the event of a reposting abroad credit should be restored at that
rate until the full previous credit is restored and thereafter credit should
increase at the normal rate ... Since a staff member is always subject to
assignment to any duty station in the interest of the Organization (Staff
Regulation 1.2) it follows that the number of 'years of continuous service
away from home country' that has been accumulated may always be subject to
reduction (or at least until six months prior to separation). As this
'credit balance' of years of continuous service is subject to reduction or
elimination during service it is submitted that it is not correct to
maintain ... that a staff member has during his career an 'acquired right'
to the amount of repatriation grant calculated by reference to the 'credit
balance' of years of continuous service away from the home country available
to the staff member at any point of time prior to separation.
41. A staff member may lose all rights to obtain payment of the repatriation
grant if he is summarily dismissed (Annex IV to the Staff Regulations) or if
he abandons his post (Staff Rule 109.5 (i), or if he dies and leaves no
surviving dependants (Staff Rule 109.5 (m)). The benefit may be reduced if
there is a change in the staff member's status (Staff Rule 109.5 (j)) or by
demotion (Annex IV to the Staff Regulations).
42. It is submitted that when the legislative components of the scheme,
which can reduce, increase or even eliminate the benefit during service, are
examined in their total context it is apparent that no right to payment of
the repatriation benefit or to any part of it can be 'earned' during a staff
member's service. Entitlement to the grant is dependent upon all the
circumstances existing at the time of separation and necessarily depends
upon fulfilling the eligibility rules in force at the time of separation.
………………………………………………………………………………………………
45. It might be remarked that the Applicant's contention that entitlement to
the repatriation grant and all its eligibility conditions are 'earned'
during service would constitute a far-reaching definition of 'acquired
rights' which would substantially derogate from the authority of the General
Assembly under Article 101.1 of the United Nations Charter to establish
conditions of service for United Nations staff and would practically destroy
the significance of the provisions for amendment made in the regulations
themselves as well as in letters[p 533] of appointment." (Mortished v. the
Secretary-General of the United Nations, Respondent's Answer, pp. 17-19.)
117. In short, the most reasonable interpretation of the link between the
amount of a repatriation grant and the length of a retiring staff member's
service is that it is simply a convenient formula for calculating the amount
of the grant. The question of whether a staff member is entitled to the
grant at all need not and should not be determined by the existence of the
link.
7. The Tribunal's Conclusion that the Transitional Rule of Itself Is the
Source of an Acquired Right
118. It will be observed that the judgement of the Administrative Tribunal,
before it reaches its principal, conclusory holding, bases its finding of an
acquired right on two grounds: first, that the United Nations assumed
special, contractual obligations towards Mortished of relevance to the issue
in the case; and second, that Mortished "earned" the repatriation
allowance. The first ground has been shown to be baseless. The second ground
has been shown to be unconvincing. The Tribunal also raised the possibility
of a third ground - generation of an acquired right through practice - but
it retreated from that ground without developing it, presumably conscious of
the difficulties of so doing. Let us turn to the Tribunal's remaining
argument, which is stated in paragraph XVI of its Judgement in these terms:
"By making payment of the Applicant's repatriation grant conditional on the
production of evidence of relocation, the Respondent failed to recognize
the Applicant's acquired right, which he held by virtue of the transitional
system in force from 1 July to 31 Decem-ber 1979 and set forth in Staff Rule
109.5 (f).
The stand taken by the Respondent has had the effect of depriving the
Applicant of payment of the repatriation grant. Recognizing that the
Applicant was entitled to receive that grant on the terms defined in Staff
Rule 109.5 (f), despite the fact that that rule was no longer in force on
the date of the Applicant's separation from the United Nations, the Tribunal
finds that the Applicant sustained injury as the result of a disregard of
Staff Regulation 12.1 and Staff Rule 112.2 (a). The Applicant is thus
entitled to compensation for that injury. The injury should be assessed at
the amount of the repatriation grant of which payment was refused.
Accordingly, the Tribunal rules that the Respondent shall pay to the
Applicant, as compensation, a sum equal to the amount of the repatriation
grant calculated in accordance with Annex IV to the Staff Regulations."[p
534]
119. It is striking that the Tribunal's most substantial argument is
presented in a few conclusory sentences. The second sentence of the
Tribunal's holding is inaccurate, in stating that: "The stand taken by the
Respondent has had the effect of depriving the Applicant of payment of the
repatriation grant." The fact is that Mortished was entitled to receive
payment of the repatriation grant within two years of his retirement, on
provision of evidence of relocation of his residence outside Switzerland.
Staff Rule 109.5 (e) provided as of 1 July 1979 and thereafter that:
"En-titlement to repatriation grant shall cease if no claim for payment of
the repatriation grant has been submitted within two years after the
effective date of separation." Thus Mortished could have received payment of
the repatriation grant on presentation of evidence of relocation until any
time before 30 April 1982. When his case was heard by the Administrative
Tribunal, Mortished had approximately still one year within which to
relocate in order to qualify for the grant (see the dissenting opinion of
Mr. Herbert Reis in Mortished v. the Secretary-General, para. 1). But the
essence of the Tribunal's judgement is in the first sentence of paragraph
XVI: Mortished's "acquired right" was held "by virtue of the transitional
system in force from 1 July to 31 December 1979 ...". That this is indeed
the core of the Tribunal's reasoning is confirmed by paragraph XIV, where
the Tribunal declares that Mortished's "entitlement... came into force on 1
July 1979 . ..".
120. The inarticulate essence of this argument may be said to be this.
Whether or not practice in paying the repatriation grant was consistent with
the Staff Regulations and Rules, and whether or not issuance of the
transitional rule was consonant with resolution 33/119, the facts are that
the practice was followed for some 30 years and the transitional rule was
issued. Acting in pursuance of his delegated and apparent authority, the
Secretary-General's practice gave rise to an expectation on the part of
Mortished and others similarly situated that they would be paid the
repatriation grant whether or not they relocated from the country of their
last duty station. That expectation was confirmed and entrenched in 1979 by
the issuance of the transitional rule. Mortished accordingly is entitled to
rely on the transitional rule, which vested in him an acquired right which
survives the deletion of that rule from the Staff Rules. The authority to
which the staff member must look is the Secretary-General. He cannot be
charged with challenging the regularity of the Secretary-General's
interpretation of the Staff Regulations or the resolutions of the General
Assembly. If the General Assembly is dissatisfied with the
Secretary-General's interpretations, it may take appropriate measures but
those measures may not trench upon the acquired rights of innocent
bystanders such as Mortished.
121. There is substance in this approach. If the Judgement of the
Administrative Tribunal in Mortished v. the Secretary-General can be sus-[p
535]tained, it is only on this basis. It is certainly reasonable to assume
that Mortished and others similarly situated, having informally heard about
the practice of payment of the repatriation grant to those who did not
relocate, and perhaps having witnessed examples of that practice, expected
that they too would be similarly treated. Yet the Judgement of the
Administrative Tribunal rightly and expressly eschews basing itself on the
contention that the acquired right was generated by practice. Equitable
considerations in favour of Mortished remain, but the practice of itself
does not create the right. What, in the last analysis, the Tribunal
maintains is the source of the acquired right is the fact that, for some
seven months, transitional Rule 109.5 (f) was on the books. That rule was
indeed on the books; clearly it was in force in the brief period before the
General Assembly in effect directed the Secretary-General to delete it. Is
it sufficient to endow Mortished with an acquired right which extends
beyond the period when that rule applied?
122. It is believed that the transitional rule is not sufficient to endow
Mortished with an acquired right which otherwise he would not have, for two
reasons. First, under the Statute of the Administrative Tribunal and its
jurisprudence, an entitlement such as the repatriation grant may be
exercised only in accordance with the conditions governing the entitlement
as of the time its exercise is sought. Second, under the Statute of the
Administrative Tribunal and its jurisprudence, the General Assembly retains
the right to issue or require "statutory" amendments to the governing Staff
Regulations or Rules which, even though they impinge upon benefits accorded
to staff members, are not regarded as giving rise to payment of compensation
because of derogation from acquired rights.
123. Mortished could have retired at any time between 30 April 1980 and 30
April 1982 and received the repatriation grant upon presentation of evidence
of relocation. He could have retired and received the grant without evidence
of relocation when transitional Rule 109.5 (f) was in force; he was offered
that opportunity but declined. From the viewpoint of his personal interest,
it is understandable that he did decline but his personal interest does not
give him an immunity from the operation of the law. Under the interpretation
which the Administrative Tribunal itself has given to the law "the
entitlement can only exist in law if the staff member, at the time when he
is to begin exercising that entitlement, meets all the requirements laid
down in the Staff Rules..." (Ho v. the Secretary-General of the United
Nations, loc. cit. See also Majid v. the United Nations Joint Staff Pension
Board, Judgement No. 141, para. IV.) The terms of the Statute of the
Administrative Tribunal itself are drafted consistently with this rule, for
Article 2 provides that the Tribunal shall be competent to hear and pass
judgement upon applications alleging non-observance of the contracts of
staff members or their terms of appointment and the words "contracts" or
"terms of appointment" include all pertinent regulations [p 536] and rules
"in force at the time of alleged non-observance...". (Not only did Mortished
fail to exercise his rights under the transitional rule at a time when the
rule was in force. That rule also was not in force when Mortished
transferred to the United Nations in 1958. And it was not in force in 1963
when, after 12 years' service in the United Nations system, Mortished
accumulated his maximum allowance under the repatriation grant.)
124. Moreover, any right with which Mortished was invested by reason of the
transitional rule was subject to divestment. Regulation 12.1 of the Staff
Regulations provides:
"These Regulations may be supplemented or amended by the General Assembly,
without prejudice to the acquired rights of staff members."
It is not a sufficient answer to say that Mortished had an acquired right by
reason of the transitional rule and that therefore provision for amendment
of the Regulations (or consequential Rules) cannot prejudice that acquired
right. For the amendment to the Staff Rules which the Secretary-General made
in implementation of the directive contained in General Assembly resolution
34/165 to delete Rule 109.5 (f) was an amendment of a statutory and not a
personal character. The amendment generally affected the conditions of
eligibility for the repatriation grant. It did not affect a contractual
element of the relations running between Mortished and the
Secretary-General. Rather, because conditions of eligibility for the
repatriation grant apply to all staff members equally and therefore are, in
the words of the United Nations Administrative Tribunal "matters being
statutory which affect in general the organization of the international
civil service, and the need for its proper functioning" (the Kaplan case,
quoted above at para. 97), these eligibility conditions "may always be
changed at any time through regulations established by the General Assembly,
and these regulations are binding on staff members" (ibid).
8. The Balance of Equitable Considerations
125. It is clear that Mortished had reason to expect that he would be paid
the repatriation grant regardless of provision of evidence of relocation;
the equitable considerations running in his favour are substantial. At the
same time, it would be implausible to conclude that Mortished did not gain
an acquired right by reason of his contract, did not by reason of
administrative practice, but did gain an acquired right not to provide
evidence of relocation by reason of a transitional rule in force for seven
months but not in force when he sought to exercise the right allegedly
acquired, when it is also considered that:[p 537]
- the administrative practice did not conform to the letter or the spirit of
Rule 109.5, notably Rule 109.5 (a), as that Rule has stood since 1953;
- the administrative practice did not conform to the letter or the spirit of
Rule 104.7 (c), which, as far as is known, was in force at all relevant
times;
- there is no evidence that the General Assembly was informed of, still less
approved, the administrative practice before 1976 and, from the time at
which it clearly was informed of the practice, it grew increasingly critical
of it, passing two resolutions expressly designed to overrule it;
- the transitional rule was issued in clear conflict with the terms and
intent of the General Assembly resolution governing it, resolution 33/ 119;
- the General Assembly overturned the transitional rule with unusual speed
and decisiveness as soon as it could possibly do so.
126. Room remains for a difference of opinion as to which way the balance of
equities in this case inclines. It may well be said that Mortished should
not be penalized for the actions of the Secretary-General's associates. But
the equities are not one-sided.
9. Was the Administrative Tribunal Entitled to Apply Resolution 34/165?
127. It might be maintained that the Administrative Tribunal was not
entitled to apply resolution 34/165 on the ground that that resolution did
not amend the Staff Regulations or expressly and in terms direct the
Secretary-General to issue a Staff Rule. The competence of the Tribunal is
defined by Article 2 of its Statute, which provides that it shall hear and
pass judgement upon applications alleging non-observance of staff contracts
or terms of appointment. Article 2 defines "contracts" and "terms of
appointment" to include "all pertinent regulations and rules in force at the
time of the alleged non-observance ...". It does not refer to resolutions of
the General Assembly which do not contain amendments to those Staff
Regulations or Rules. Hence, it may be argued, if the Administrative
Tribunal did not give immediate effect to resolution 34/165, its judgement
was warranted for it was not competent to give any effect to that
resolution.
128. Such an argument would be unsound. As this Court in the Fasla case has
"pointed out... under Article 101, paragraph 1, of the Charter the General
Assembly is given power to regulate staff relations ..." (I. C.J. Reports
1973, p. 173). This holding mirrors that of the Court in Effect of [p 538]
Awards of Compensation Made by the United Nations Administrative Tribunal,
Advisory Opinion, I. C.J. Reports 1954, pp. 47,58,61, where the Court also
held that, "The General Assembly could at all times limit or control the
powers of the Secretary-General in staff matters by virtue of the provisions
of Article 101" (ibid., p. 60). "In regard to the Secretariat, the General
Assembly is given by the Charter a power to make regulations ... There is no
lack of power to deal effectively with any problem that may arise ..."
(Ibid., p. 61.) There is no prescription that the Assembly's power to
regulate must be exercised solely in the form of the Staff Regulations and
amendments thereto. No provision of the Charter or resolution of the General
Assembly or article of the Staff Regulations so indicates. As the Court
earlier held, it must be acknowledged that its Members, by entrusting
certain functions to the United Nations, "have clothed it with the
competence required to enable those functions to be effectively discharged"
(Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 179). "Under international law,
the Organization must be deemed to have those powers which, though not
expressly provided in the Charter are conferred upon it by necessary
implication as being essential to the performance of its duties." (Ibid., p.
182.)
129. The General Assembly has not infrequently adopted resolutions which are
meant to regulate and do regulate staff relations but have done so in a form
which does not prescribe or amend the Staff Regulations or direct changes in
the Staff Rules. Among such resolutions are: 976 (X) on cost-of-living
adjustment and dependency allowances for Headquarters personnel; 1310 (XIII)
on pensionable remuneration of staff; 2480 (XXIII) on composition of the
Secretariat; 2736 (XXV) on composition of the Secretariat; 3198 (XXVIII) on
standards of accommodation for official travel of United Nations staff;
3418 (XXX) on the United Nations Salary system; 31/26 on composition of the
Secretariat; 31/193 (B), on Joint Inspection Unit (Salaries and Conditions
of Service for Members of the Secretariat); 33/143 on personnel questions;
and 35/210 on person-nel questions. Examination of these resolutions
demonstrates how significantly and in what varied ways the General Assembly
has chosen to exercise its authority to regulate staff relations while at
times not choosing to do so by way of amendment of the Staff Regulations or
consequential Rules. Examples of such resolutions are referred to in the
next paragraph, in which precedents for the Administrative Tribunal taking
account of such resolutions are cited.
130. The Administrative Tribunal of the United Nations has amassed ample
precedent for taking account in its judgements of resolutions of the General
Assembly which regulate the staff without amending the Staff Regulations or
necessarily entailing revision of the Staff Rules. For exam-[p 539]ple, in
Judgement No. 67, Harris et al. v. the Secretary-General of the United
Nations, the Tribunal held as follows:
"5. It is therefore necessary to consider whether, as the Applicants
maintain, their claim to tax reimbursement receives any support from the
resolutions of the General Assembly.
These resolutions have not been embodied in the Staff Rules, but the
Respondent does not dispute that the resolutions, together with the
Secretary-General's circulars by which they were put into effect, are, with
respect to the staff members to whom they apply, part of the terms of
appointment which it is the Tribunal's duty to take into account under
Article 2 of the Statute.
Until 1955 the Assembly did not adopt any resolution making permanent
provision for the reimbursement of national taxes; but as a result of the
permanent staff assessment scheme and the unaltered position of the United
States, the reimbursement system was carried over from year to year without
being embodied in the Staff Rules." (Judgements of the United Nations
Administrative Tribunal, AT/DEC/ 1 to 70, p. 395.)
In Powell v. the Secretary-General of the United Nations, Judgement No. 237,
the Administrative Tribunal recalled that:
"It was not until the tax reimbursement system had been established on a
permanent basis that the provisions relating to staff assessment and to tax
reimbursement were introduced by General Assembly resolution 1095 (XI) into
the Staff Regulations as Regulation 3.3" (P. 14.)
There is no suggestion that the Administrative Tribunal regarded such
provisions as any the less effective or in any measure beyond its
competence in the period before they were introduced into the Staff
Regulations.
131. One further case, among a number which could be cited, establishes
that, in the case-law of the Administrative Tribunal, the Tribunal is
entitled to take account of and apply General Assembly resolutions which
affect the status of the staff but do not necessarily amend the Staff
Regulations or require amendment of the Staff Rules:
"The Tribunal has consistently maintained that the Resolutions of the
General Assembly constitute, as far as the staff members to whom they apply
are concerned, conditions of employment to be taken into account by the
Tribunal (Judgements No. 67, Harris et al., para. 5; No. 236, Belchamber,
para. XVI; No. 237, Powell, para. XI). The Tribunal therefore holds that
resolution 31/193 B II could be relied upon as a basis for the non-payment
of salary in circumstances such as those of the present case, even before
being incorporated in the Staff Regulations pursuant to General Assembly
decision 33/433.[p 540]
VIII. The Applicant contends further that the Respondent was estopped by his
own conduct and by the conduct of his representatives from relying on
resolution 31/193 B II. She argues that the Respondent, by failing to take
any steps for two years to incorporate resolution 31 /193 BII into the
Staff Regulations, demonstrated his intention not to act on it...
IX. The Tribunal, having determined that a resolution of the General
Assembly was binding on the Applicant, observes that the fact that the
Respondent did not press for General Assembly action to incorporate the text
into the Staff Regulations did not affect his right to apply the resolution
to the Applicant." (Smith v. the Secretary-General of the United Nations,
Judgement 249, pp. 17 to 18.)
10. Did the Administrative Tribunal Determine that Resolution 34/165 Could
not Be Given Immediate Effect?
132. It has been maintained that the judgement of the Administrative
Tribunal in Mortished v. the Secretary-General did not determine that
resolution 34/165 could not be given immediate effect in requiring, for
payment of repatriation grants, evidence of relocation to a country other
than the country of the staff member's last duty station. It thus is
suggested that the question put to the Court for an advisory opinion
misconstrues the Tribunal's judgement. This conclusion is indeed shared by
the Opinion of the Court (see para. 55).
133. The reasons that may be advanced in support of this conclusion are
several, and not wholly consistent. One is that the Tribunal barely referred
in its judgement to resolution 34/165 and made no express determination that
it could not be given immediate effect. A second is that the Tribunal did
give immediate effect to resolution 34/165 in so far as it could be given
such effect without impairing acquired rights. A third is that not only did
the Tribunal give immediate effect to resolution 34/165 but that its so
doing is the precondition of its judgement. These reasons will be
considered in turn.
134. It is true that the judgement of the Administrative Tribunal in
Mortished v. the Secretary-General does not extensively refer to resolution
34/165, and it contains no express refusal to apply that resolution. That
hardly shows that the Tribunal did not fail to give that resolution
immediate effect. In any event, what is essential is the real effect of the
Tribunal's judgement, however modest its references to resolution 34/165 and
however lacking the judgement is in an express determination that
resolution 34/165 could not be given immediate effect. As the Court put it
in the Fasla case, "... the Court must have regard to the substance of the
matter and not merely to the form" (I.C.J. Reports 1973, pp. 189-190). If in
substance, if in reality, the judgement of the Administrative Tribunal in
the Mortished[p 541] case did not give immediate effect to resolution
34/165, then the Committee on Applications did not misconstrue that
judgement in requesting an Advisory Opinion on whether the Tribunal's
determination was war-ranted.
135. It is perfectly plain that, in fact, the judgement of the
Administrative Tribunal in the Mortished case does not give immediate
effect to resolution 34/165, except, arguably, in a marginal fashion. It is
a fact that the judgement of the Administrative Tribunal actually determined
that General Assembly resolution 34/165 could not be given substantial
immediate effect. This is so because Mortished and staff members similarly
situated may rely on the transitional rule so as to avoid the requirement of
providing evidence of relocation to a country other than that of their last
duty station. For some years, virtually every retiring or resigning staff
member eligible for a repatriation grant will rely, in the computation of
the amount of the grants claimed to be due, on years and months of service
rendered before 1 July 1979. By reason of the judgement of the
Administrative Tribunal, they
"shall retain the entitlement to repatriation grant proportionate to the
years and months of service qualifying for the grant which they had already
accrued at that date without the necessity of production of evidence of
relocation with respect to such qualifying service" (former Rule 109.5 (f)).
By sustaining the Tribunal's judgement, as the Court's Opinion does, it is
difficult to see what, if any, immediate effect resolution 34/165 will have,
except as regards the odd staff member who will shortly retire or resign but
who did not accrue service before 1 July 1979. As time passes, more and more
of those leaving the Organization will not have accrued some or all of their
credit towards the repatriation grant before that date; accordingly,
resolution 34/165 will have increasing effect. But its immediate effect is
modest. Moreover, resolution 34/165 prescribes that "no" staff member shall
be entitled to "any part" of the repatriation grant unless evidence of
relocation is provided. For years, virtually every retiring or resigning
staff member will seek credit for some part of the repatriation grant which
accrued before 1 July 1979. By reason of the Tribunal's judgement in the
Mortished case, staff members not providing evidence of relocation will be
entitled to that part of the grant that accrued before 1 July 1979, a result
which cannot be reconciled with giving immediate effect to resolution
34/165.
136. If it be argued that the Tribunal's Mortished judgement gave immediate
effect to resolution 34/165 in so far as it could be given such effect
without impairing acquired rights, and therefore, that the judgement was
warranted (see, in this regard, paras. 75-76 of the Court's Opinion), it can
[p 542] only be so if the finding of acquired rights is warranted. For the
reasons which have been set out in this dissenting opinion, a finding of
acquired rights was not warranted and, as just shown, by reason of its
finding of acquired rights, the practical, immediate effect given by the
Tribunal to resolution 34/165 is so slender as to justify a request for an
advisory opinion in the stated terms. It may be observed that this argument
for the conclusion that the Tribunal did give effect to resolution 34/165
requires the Court to look at the merits of the Tribunal's holding on
acquired rights, for, if acquired rights do not obtain in this case, then
the claimed basis for the Tribunal's treatment of resolution 34/165
vanishes. Resolution 34/165 can have been rightly reconciled by the Tribunal
with acquired rights only if there were such rights. The Court's Opinion
appears to recognize this, yet it shrinks from appraisal of the validity of
the Tribunal's holding on acquired rights which this recognition demands by
taking shelter in its claim that the business of the Court is not to pass
upon the merits of that holding (paras. 74, 76).
137. The third argument is the subtlest. In maintains that the very
existence of resolution 34/165 was the precondition of the Tribunal's
judgement in the Mortished case and, that being so, the Tribunal
necessarily gave effect - indeed, immediate effect — to it. On what ground,
this line of reasoning asks, did the Tribunal arrive at the conclusion that
Mortished should be paid compensation for an injury assessed in a sum equal
to the amount of the repatriation grant? On the ground that it recognized
that the Secretary-General had given effect to resolution 34/ 165 in denying
Mortished his repatriation allowance; that this denial injured Mortished by
violating his acquired rights; and that compensation must be paid for the
injury. So there is no reason to complain that the Tribunal failed to give
immediate effect to resolution 34/165; on the contrary, its judgement is
posited on its having done so. The Court's Opinion takes such an approach
(see paras. 55-56).
138. This reasoning is both logical and unpersuasive. Rather than giving
genuine effect to the terms and intent of resolution 34/165, it stands that
resolution on its head. This argument in actuality says to the General
Assembly: resolution 34/165 admittedly provides and means to provide "that
effective 1 January 1980 no staff member shall be entitled to any part of
the repatriation grant unless evidence of relocation away from the country
of the last duty station is provided". Thus no staff member shall be paid
any part of the repatriation grant without provision of such evidence.
However, such staff members shall be paid a sum equal to the amount to which
they would have been entitled had not resolution 34/165 been adopted. That
fact does not mean that resolution 34/165 is not given immediate effect. Why
not? Because the sums paid to the staff members are not payment of the
repatriation grant, but payments in compensation for the denial of payment
of the repatriation grant.[p 543]
139. Simply to state this argument is to declare its disability. The General
Assembly had an object in view in adopting resolution 34/165, namely, to
require that any staff member leaving the Organization who seeks to receive
a sum of money calculated on the basis of the repatriation grant shall
receive any part of that sum only if he or she provides evidence of
relocation. That object is in no way given immediate or any effect by paying
the whole of that very sum to a staff member who does not provide that
evidence, not as a repatriation grant but as compensation for its denial. On
the contrary, such a process defeats the terms of resolution 34/165 and the
intent of the General Assembly in adopting that resolution.
140. But it may be said, the General Assembly is not a judicial body and it
is not for it to judge whether such staff members had an acquired right to
payment of the repatriation grant regardless of relocation; the General
Assembly did not by resolution 34/165 or otherwise purport to override
acquired rights; on the contrary, Staff Regulation 12.1 remains in force, in
general and accordingly with reference to the repatriation grant; thus the
General Assembly - which had been warned by the United Nations
Under-Secretary-General and the legal counsel of the various United Nations
agencies of the existence of an acquired right — must be deemed to have left
it to the Administrative Tribunal to decide whether or not an acquired right
obtains. The Administrative Tribunal has decided that staff members do have
an acquired right to payment of the repatriation grant, and that should be
the end of the matter.
141. It is true that the General Assembly is not a judicial body; it is also
true that it did not decide to override acquired rights; and it is true that
it left the initial judicial decision over whether there is an acquired
right to the repatriation grant to the Administrative Tribunal. But the
authorized organ of the General Assembly has requested this Court to review
that judgement of the Administrative Tribunal because it has concluded that
there is substantial basis for challenging it on the grounds that that
judgement embodies error on a question of law relating to the provisions of
the Charter of the United Nations and constitutes an excess of jurisdiction
or competence. That challenge cannot be disposed of by a kind of legal
legerdemain, which suggests to the General Assembly that all is
definitively and well settled because Mortished will be paid the exact sum
of money in controversy from one account rather than another.
11. The Tribunal's Judgement Erred on Questions of Law Relating to
Provisions of the Charter and Exceeded the Tribunal's Jurisdiction
142. When measured against the grounds of objection listed in Article 11 of
the Statute of the Administrative Tribunal which have been invoked by the
Committee on Applications, the Tribunal's judgement in the Mortished case
presents essentially these questions:[p 544]
- Did the Administrative Tribunal have the jurisdiction or competence not to
give immediate effect to resolution 34/165?
- Was the exercise of such authority error on a question of law relating to
provisions of the United Nations Charter?
- Did the Tribunal's finding of acquired rights afford it an authority to
avoid giving effect to resolution 34/165 which it otherwise lacks?
143. It is submitted that it has been shown above (paras. 132-139) that what
the Administrative Tribunal actually did by the force of its judgement in
Mortished v. the Secretary-General was to deprive of substantial, immediate
effect a resolution of the General Assembly by which the Assembly meant to
regulate and did regulate an aspect of staff conditions of service as of 1
January 1980. In so doing, the Administrative Tribunal exceeded its
jurisdiction. That jurisdiction is defined by the Tribunal's Statute. The
Court has rightly treated the Tribunal's "acting within the limits of its
statutory competence" (as well as its being a "properly constituted
Tribunal") as preconditions of its rendering a valid award (Effect of Awards
of Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1954, pp. 50, 51). The definition of the Tribunal's
jurisdiction in Article 2 of its Statute does not provide for or imply a
power to override resolutions of the General Assembly. Indeed, the travaux
préparatoires indicate the contrary. The report of the Fifth Committee on
the establishment of the Administrative Tribunal states, in respect of
Article 2 of the Statut:
"the tribunal would have to respect the authority of the General Assembly to
make such alterations and adjustments in the Staff Regulations as
circumstances might require. It was understood that the Tribunal would bear
in mind the General Assembly's intent not to allow the creation of any such
acquired rights as would frustrate measures which the Assembly considered
necessary ... No objection was voiced in the Committee to those
interpretations, subject to the representative of Belgium expressing the
view that the text of the Statute would be authoritative and that it would
be for the Tribunal to make its own interpretations." (United Nations,
General Assembly Official Records, Fourth Session, Annexes, Agenda Item 44,
p. 166.)
144. To posit an authority of the Administrative Tribunal to set aside or
overrule decisions of the General Assembly is to invest the Tribunal with a
power of judicial review vis-à-vis the Assembly. But the Tribunal does not
enjoy that extraordinary power. Broadly speaking, the General Assembly
itself lacks legislative authority; its resolutions are recommendatory. But
in the very restricted sphere of its law-making competence, which includes
establishing conditions of service of the staff pursuant to Article 101 (1)
of the Charter, the law laid down by the General Assembly binds not only the
Secretary-General and the staff but the Administrative Tribunal as well.[p
545]Accordingly, when the Administrative Tribunal in substance sets aside
that law, it exceeds its jurisdiction.
145. The Court's Opinion holds otherwise. The Court's conclusion that the
Tribunal's judgement does not override resolution 34/165 and hence exceed
the Tribunal's jurisdiction appears to be based on the following holdings:
the Tribunal acted within the limits of Article 2 of its Statute; and, even
if the Tribunal's judgement on acquired rights with which the Tribunal gave
effect to rather than overrode resolution 34/165 is wrong on the merits,
that judgement on the merits has nothing to do with an excess of
jurisdiction (para. 80). The Court avoids the question of whether the
Tribunal's judgement misconstrues the intent of the General Assembly in
adopting resolution 34/165.
146. It is submitted that the Court's reasoning is unpersuasive, for these
reasons. First, there is no justification for avoiding the intent of the
General Assembly in adopting resolution 34/165 (see para. 89, supra). The
language of the resolution is plain; and the tenor of the debate which
preceded its adoption even plainer. The Under-Secretary-General of the
United Nations understood perfectly the meaning of resolution 34/165 before
its adoption — i.e., complete revocation of the transitional rule — and
explicitly warned the Assembly against adopting it for that very reason
(supra, paras. 79, 80, 81, 84). It is accordingly the harder to credit the
failure of the Court to recognize what the record so emphatically
demonstrates. Second, it is perfectly true that the Tribunal acted, prima
facie, within its jurisdiction or competence in ruling on Mortished's claim.
But that is not the issue. The issue rather is: did it act within its
jurisdiction in not giving immediate effect to resolution 34/165? The Court
deals with that issue by advancing arguments designed to show that actually
the Tribunal did give effect to resolution 34/165. But, since, as this
dissenting opinion has endeavoured to demonstrate, those arguments do not
withstand analysis, it is believed that this endeavour of the Court fails.
Third, the Court's conclusion that, even if the Tribunal's holding on
acquired rights was erroneous, such error would not constitute an excess of
jurisdiction, is a conclusion which is, it is submitted, unduly simplistic.
The essence of the defence of the Tribunal's judgement to the charge of
excess of jurisdiction is that there was no excess but simply a
reconciliation of resolution 34/165 with pre-existing and continuing
acquired rights. But if there were no acquired rights, then there could not
have been such a reconciliation. The Court itself does not pass upon whether
there were acquired rights; it contents itself with reciting the reasoning
of the Tribunal's judgement and stating that it is not its business to
judge it. But when the merits of the Tribunal's judgement are examined, it
is clear that its judgement on this critical question is predominantly
unpersuasive. If it is accepted that the Tribunal's holding on acquired
rights is unsound, then it follows that the Tribunal did not give effect to
resolution 34/165, from which it follows that it exceeded its jurisdiction
by failing to do so. Its not giving effect to resolution 34/165 also
constituted an error on a question of
[p 546] law relating to provisions of the United Nations Charter, but that
fact does not weaken the conclusion about jurisdictional excess. It may be
said to make that conclusion unnecessary, because, on the ground of error on
a question of law alone, the Tribunal's judgement in Mortished v. the
Secretary-General of the United Nations should not be sustained.
147. The question of whether the Administrative Tribunal exceeded its
jurisdiction — the question of the relative powers of the General Assembly
and the Administrative Tribunal and the interplay of their exercise in this
case — also is a question of law relating to provisions of the United
Nations Charter. That question engages primarily Article 101 (1), for it is
by that provision that, as the Court has more than once held, "the General
Assembly is given power to regulate staff relations..." (see para. 128,
supra). But the question relates or may relate to other Charter articles as
well : to the authority of the Secretary-General as chief administrative
officer of the Organization under Article 97, to the budgetary authority of
the General Assembly under Article 17 and to the General Assembly's power to
establish subsidiary organs under Article 22. It may relate to the
distribution of implied powers which arise by intendment from the Charter.
But for present purposes, all that need be recalled is that neither under
Article 101 nor any other Charter article, nor under its Statute, is the
Administrative Tribunal authorized to vitiate a resolution adopted by the
General Assembly.
148. The failure of the Administrative Tribunal to give immediate effect to
a binding resolution of the General Assembly constituted error on a question
of law relating to provisions of the United Nations Charter. Article 101(1)
provides that the staff shall be appointed by the Secretary-General under
regulations established by the General Assembly — regulations which "embody
the fundamental conditions of service... of the United Nations Secretariat"
(Staff Regulations, scope and purpose). "Under Article 101, paragraph 1, of
the Charter, the General Assembly is given power to regulate staff
relations..." (I.C.J. Reports 1973, p. 173). Resolution 34/165, while it did
not amend the Staff Regulations, constituted a regulation of the conditions
of service of the Secretariat, a regulation which the Administrative
Tribunal was bound to apply by reason of Article 101 (1) (and its own
jurisprudence interpreting that article ; see paras. 130-131, supra). By not
giving effect to that resolution, the Administrative Tribunal acted in
derogation of Article 101 (1) and so erred on a question of law "relating
to" a provision of the Charter. That is all that is required by Article 11
of the Tribunal's Statute. The Tribunal need not have acted in direct
contravention of a Charter provision ; it need merely err in relation to a
Charter provision. That it did by failing to give effect to an exercise of
the General Assembly's regulatory [p 547]
authority under Article 101 (1) by reason of unfounded reliance on acquired
rights.
149. While the essential error of law relating to a Charter provision is the
Tribunal's failure to give effect to an exercise of the General Assembly's
regulatory authority under Article 101 (1), that error embraces more
particular errors. Regulation 11.2 of the Staff Regulations provides that
the Administrative Tribunal shall, "under conditions prescribed in its
Statute", pass judgement upon applications from staff members alleging
non-observance of their terms of appointment, including "all pertinent
regulations and rules". The conditions of the Statute, in Article 2,
prescribe that the Tribunal shall apply "all pertinent regulations and rules
in force at the time of the alleged non-observance ...". The Tribunal erred
in applying in favour of Mortished a rule not in force at the time of the
alleged non-observance, namely, the deleted Rule 109.5 (f), which had been
deleted by reason of the application of resolution 34/165. Its applying
that deleted rule thus conflicted with an exercise of the General Assembly's
authority under Article 101(1). The Tribunal also may have erred in failing
to apply a pertinent rule which was in force at the time of the alleged
non-observance, namely, Rule 104.7 (c). Its interpretation of Annex IV to
the Staff Regulations — "In principle, the repatriation grant shall be
payable to staff members whom the Organization is obligated to repatriate"
— also erred in derogating from the General Assembly's authority to regulate
staff relations under Article 101 (1) because it failed to give adequate
weight to the reiterated intent of the General Assembly in adopting and
maintaining that provision. Moreover, in so far as the Administrative
Tribunal deflected the incontestable intent of the General Assembly in
adopting resolutions 33 /119 and 34/165, and construed those resolutions in
a fashion inconsonant with that intent, it erred on a question of law
relating to a provision of the Charter, namely, the authority of the General
Assembly to regulate the staff under Article 101 (1).
150. The Court's Opinion makes no room for the conclusion that the judgement
of the Administrative Tribunal erred on a question of law relating to
provisions of the United Nations Charter. It agrees that the Tribunal must
"accept and apply the decisions of the General Assembly made in accordance
with Article 101 of the Charter". It concludes that the Tribunal did. Why ?
Because it [p 548]
"was faced ... not only with resolution 34/165 ... but also with Staff
Regulation 12.1 ... it had therefore to interpret and apply these two sets
of rules ... The question is not whether the Tribunal was right or wrong in
the way it performed this task ... the question — indeed, the only matter on
which the Court can pass, — is whether the Tribunal erred on a question of
law relating to the provisions of the Charter of the United Nations. This it
clearly did not do when it attempted only to apply to Mr. Mortished's case
the relevant Staff Regulations and Rules made under the authority of the
General Assembly." (Para. 76.)
151. It is submitted that this is the central error of the Court's Opinion.
For the reasons advanced in the preceding paragraphs, precisely what the
Tribunal did in purporting to reconcile resolution 34/165 with non-existent
acquired rights was to commit an error of law in relation to provisions of
the Charter, notably, Article 101 (1). By resolution 34/165 the General
Assembly, acting under Article 101 (1), regulated the terms of eligibility
for the repatriation grant; by its judgement, the Tribunal avoided giving
immediate effect to the Assembly's regulation; on this count above all but
on others as well {supra, paras. 147-149), the Tribunal thereby erred on a
question of law relating to a provision of the Charter, since it frustrated
the express and intended effect of an exercise of the Assembly's
Charter-given regulatory power. It avails the Court nothing to take refuge
in the conclusion that it cannot properly resolve whether or not the
Tribunal's holding on acquired rights was right but that "clearly" whether
the Tribunal was right or wrong did not constitute an error of law relating
to Charter provisions. That conclusion is not clear at all. It takes not
merely a narrow construction of the Court's authority which is questionable
(paras. 19-29, supra). Even on the Court's own constrained construction of
its jurisdiction, it is unsupportable because the Tribunal's conclusions so
clearly derogate from the regulatory authority of the General Assembly.
152. It may be added that the question of whether Mortished has an acquired
right in this case relates not only to Article 101(1), but, arguably, to
Articles 101 (3) and 100 of the Charter as well. It has been maintained, and
reasonably maintained, that the implementation of acquired rights where
justified bears upon the realization of the staffs efficiency, competence
and integrity for which provision is found in Article 101 (3), and that it
relates as well to the maintenance of the exclusively international
responsibility of the staff under Article 100. It is worth emphasizing that
the Mortished case does not deal with questions of acquired rights in the
abstract or in the many contexts in which they may arise. It rather concerns
the very particular question of the acquired rights of international civil
servants, a question which must be considered in the singular context of [p
549] international organizations and in the light of the jurisprudence
concerning acquired rights which has developed in the international
administrative tribunals. Thus, while what those tribunals and this Court
may say about acquired rights in this context may have little or no
application to acquired rights in other contexts, it may certainly "relate
to" those Charter articles that are the foundation of the international
legal character of the United Nations Secretariat. Even if a narrow view of
the Court's jurisdiction under Article 11 of the Tribunal's Statute is
taken, there accordingly may be ground for examining the merits of the
Tribunal's holding of acquired rights in this case in addition to that so
clearly provided by Article 101(1). If the Tribunal's holding is found to be
flawed, if it is found to extend the doctrine of acquired rights to an
unreasonable extent, its so doing may be said not only to prejudice the
regulatory powers of the General Assembly under Article 101 (1), but to bear
adversely on Articles 101 (3) and 100 in so far as undue extension of
acquired rights may weaken those rights within their proper limits, rights
which, when so limited, reinforce the effectiveness of those articles. For
the reasons set out in this dissenting opinion, it is submitted that the
holding of the Administrative Tribunal in the case of Mortished v. the
Secretary-General of the United Nations is seriously flawed and does extend
the doctrine of acquired rights unreasonably.
153. Did the Administrative Tribunal's finding of Mortished's acquired
rights afford it an authority to avoid giving effect to resolution 34/165
which it otherwise lacks? As noted, it has been maintained that the Tribunal
did not so much fail to give immediate effect to resolution 34/165 as to
weigh against that resolution Mortished's acquired rights. It is maintained
that what the Tribunal did was to reconcile resolution 34/165 with his
pre-existing and continuing acquired rights; since it upheld those rights,
it could give effect to resolution 34/165 only in so far as it was
consistent with them.
154. As submitted above, this approach can be persuasive only in so far as
the holding that Mortished had acquired rights is soundly based. It is
believed that it has been shown above that it is not soundly based. Thus in
so far as the Tribunal's finding of acquired rights is the justification for
not giving immediate effect to resolution 34/165 in accordance with its
terms and the intent of the General Assembly, that justification fails,
i.e., the finding of acquired rights is the source of the Tribunal's error
in frustrating the Charter-given authority of the General Assembly to
regulate staff relations pursuant to Article 101 (1). Of course, this
conclusion can be reached only by an analysis of the merits of the
Tribunal's holding that Mortished had an acquired right to a repatriation
grant without provision of evidence of relocation. For this reason of
itself, it is submitted that the Court could not and should not avoid
evaluating the merits of the [p 550] judgement of the Administrative
Tribunal in Mortished v. the Secretary -General.
155. Finally it may be noted that the Tribunal's judgement on acquired
rights relates not only to Article 101 (1) by reason of its frustrating the
exercise of the Assembly's authority under that article. If the broader view
of the jurisdiction of the Court under Article 11 of its Statute is taken
(supra, paras. 18-29), the Court then has an additional jurisdictional
ground for consideration of the merits of the Tribunal's judgement, namely,
that it is entitled to review on its own merits the Tribunal's
interpretation of the Staff Regulations that derive from Article 101 (I) —
provided that review is of an "exceptional" case. The Mortished case, the
first case brought to the Court under Article 11 at the initiative of a
member State, clearly is exceptional, because it raises extraordinary issues
of the relations and relationships between the General Assembly on the one
hand, and, on the other, the Secretary-General, the International Civil
Service Commission, the Advisory Committee on Co-ordination, the
Consultative Committee on Administrative Questions, and, most of all, the
Administrative Tribunal. Should the Court exercise that jurisdiction, it
cannot, for the reasons set forth above, conclude that the Tribunal's
interpretation of acquired rights in the Mortished case is consistent with
the Staff Regulations as that concept has been developed in the
jurisprudence of the Administrative Tribunals of the United Nations System.
(Signed) Stephen M. Schwebel.
[p 551]
Table of Contents
|
|
Paragraphs |
|
Summary
(pp.
454-457) |
|
|
I. |
The
Competence of the Court
|
2-38 |
|
|
|
|
|
1. |
The provisions of the
Statute of the Court and the Court's judicial character
|
3-7 |
|
2. |
The provisions of the
Statute of the Administrative Tribunal
|
8-30 |
|
|
|
|
|
A. |
The terms of those
provisions |
8-10 |
|
B. |
The
travaux préparatoires of
those provisions
|
11-28 |
|
|
|
|
|
(i) |
Justification for recourse
to preparatory work
|
11 |
|
(ii) |
The Court suggests judicial
review of Administrative Tribunal Judgements
|
12 |
|
(iii) |
The General Assembly takes
up the Court's suggestion
|
13 |
|
(iv) |
The report of the
Secretary-General on review procedures
|
14-17 |
|
(v) |
The meetings and report of
the Special Committee
|
18-24 |
|
(vi) |
Consideration by the Fifth
Committee |
25-28 |
|
|
|
|
|
C. |
Conclusions on the scope of
the Court's review authority in respect of error of law
|
29-30 |
|
3. |
The Court's interpretation
of the Statutes of the Administrative Tribunal in the
Unesco Officials
and
Fasla
cases
|
31-38 |
|
A. |
The
Unesco
Officials
case
|
31-33 |
|
B. |
The
Fasla
case
|
34-38 |
|
|
|
|
|
II. |
The
Origins and Development of the Repatriation Grant
|
39-90 |
|
|
|
|
|
1. |
The initiation and intent
of the repatriation grant
19491950
|
40-41 |
|
2. |
Departure from the General
Assembly's intent by the CCAQ in
1951-1952
|
42-46 |
|
3. |
The General Assembly
apparently is not informed that practice departed from principle
|
47 |
|
4. |
The General Assembly is
informed that relocation to a third country suffices
|
48 |
|
5. |
The CCAQ's rationale for
the practice |
49-50 |
|
6. |
Amendments to the Staff
Regulations do not inform the General Assembly of the practice
|
51 |
|
7. |
The practice is first aired
in the General Assembly in
1976
|
52 |
|
8. |
The CCAQ does not mention
the practice |
53 |
|
|
[p
552] |
|
|
9. |
The revealing report of the
ICSC of 1978 |
54-55 |
|
10. |
Fifth Committee response to
the ICSC Report |
56-57 |
|
11. |
The General Assembly bars
payment to non-relocating staff by resolution 33/119
|
58-59 |
|
12. |
The frustration of
resolution 33/119
|
60-64 |
|
|
|
|
|
A. |
The Secretary-General's
Circular |
60 |
|
B. |
The ICSC recommends a
transitional rule
|
61 |
|
C. |
The opinion of the Office
of Legal Affairs
|
62 |
|
D. |
The texts of Staff
Regulation 9.4, Annex IV and Staff Rule
109.5 63 |
63 |
|
E. |
Analysis of the opinion of
the Office of Legal Affairs
|
64 |
|
13. |
The failure to apply Staff
Rule 104.7 |
65-66 |
|
14. |
The Secretary-General
issues transitional Rule 109.5
(f)
|
67 |
|
15. |
Reaction in the General
Assembly against the interpretation of resolution 33/119 by the ICSC
and the Secretary-General: the adoption of resolution 34/165
|
68-88 |
|
16. |
The intent of the General
Assembly in adopting resolution
34/165
|
89-90 |
|
|
|
|
|
III. |
The
Administrative Tribunal's Judgement in
Mortished
v.
Secretary-General
|
91-155 |
|
|
|
|
|
1. |
Were special, contractual
obligations of relevance assumed towards Mortished ?
|
92-98 |
|
2. |
Case law of the
Administrative Tribunal's cuts against Mor-
tished's claim
|
99-105 |
|
3. |
The Tribunal's summary of
the evolution of practice concerning the repatriation grant
|
106-110 |
|
4. |
The question of retroactive
effacement
of Mortished's entitlement
|
111 |
|
5. |
The Tribunal's construction
of the intent of the General Assembly in adopting resolution 34/165
|
112 |
|
6. |
The Tribunals' holding that
the repatriation grant was
earned
|
113-117 |
|
7. |
The Tribunal's conclusion
that the transitional rule of itself is
the source of an acquired
right |
118-124 |
|
8. |
The balance of equitable
considerations |
125-126 |
|
9. |
Was the Administrative
Tribunal entitled to apply resolution
34/165 ?
|
127-131 |
|
10. |
Did the Administrative
Tribunal determine that resolution
34/165 could not be given
immediate effect ?
|
132-141 |
|
11. |
The Tribunal's judgement
erred on questions of law relating to provisions of the Charter and
exceeded the Tribunal's jurisdiction
|
142-155 |
|
|
