20 July 1982

 

General List No. 66

 
     

international Court of Justice

     
     
     

Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal

 

 

 

     
     
 

Advisory Opinion

 
     
  Return Home
 
 
     
     
 
BEFORE: President: Elias;
Vice-President: Sette-Camara;
Judges: Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1982.07.20_judgment273.htm
   
Citation: Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, 1982 I.C.J. 325 (July 20)
 
     
 
 
     
 

[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/Prιcis-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 Lacharriθre 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 Lacharriθre 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 Lacharriθre, 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 Bernαrdez,
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-ΰ-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." (Arrκt n° 16488, 20 juin 1974, A.S.B.L. Institut technique libre Georges Cousot et consort c. Etat belge, Recueil des arrκts 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 (Seρor 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", "LΙGITIMEMENT" 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 prιparatoires of Article 11 (paras. 11-30). Those terms and travaux prιparatoires 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 prιparatoires, 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 rιgime 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 prιparatoires, 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 prιparatoires.

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 prιparatoires 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 prιparatoires. 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 prιparatoires 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 prιparatoires 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 prιparatoires 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 prιparatoires 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, Quιguiner 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 prιparatoires 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-ΰ-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 prιparatoires 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

 
     

 

 

 

 

African Commission on Human and Peoples' Rights | Central American Court of Justice | Committee Against Torture
Committee on the Elimination of Discrimination against Women | Committee on the Elimination of Racial Discrimination
Economic Court of the Commonwealth of Independent States | International Commissions of Inquiry | International Court of Justice
International Prize Court | Permanent Court of International Justice

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.