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The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 48, 65 and 66, paragraphs 2 and 4, of the Statute
of the Court and to Articles 13, paragraph 3, and 104 of the Rules of Court,
Makes the following Order:
Whereas on 22 April 2010, at its Ninety-ninth Session, the Executive Board
of the International Fund for Agricultural Development adopted the following
resolution:
“The Executive Board, . . .
Whereas, by its judgment No. 2867 of 3 February 2010, the Administrative
Tribunal of the International Labour Organization (ILOAT) confirmed its
jurisdiction in the complaint introduced by Ms A.T.S.G. against the
International Fund for Agricultural Development,
Whereas article XII of the Annex of the Statute of the Administrative
Tribunal of the International Labour Organization provides as follows:
‘1. In any case in which the Executive Board of an international
organization which has made the declaration specified in Article II,
paragraph 5, of the Statute of the Tribunal challenges a decision of the
Tribunal confirming its jurisdiction, or considers that a decision of the
Tribunal is vitiated by a fundamental fault in the procedure followed, the
question of the validity of the decision given by the Tribunal shall be
submitted by the Executive Board concerned, for an advisory opinion, to the
International Court of Justice.
2. The opinion given by the Court shall be binding.’
Whereas the Executive Board, after consideration, wishes to avail itself of
the provisions of the said Article,
Decides to submit the following legal questions to the International Court
of Justice for an advisory opinion:
I. Was the ILOAT competent, under Article II of its Statute, to hear the
complaint introduced against the International Fund for Agricultural
Development (hereby the Fund) on 8 July 2008 by Ms A.T.S.G., an individual
who was a member of the staff of the Global Mechanism of the United Nations
Convention to Combat Desertification in Those Countries Experiencing Serious
Drought and/or Desertification, Particularly in Africa (hereby the
Convention) for which the Fund acts merely as housing organization?
II. Given that the record shows that the parties to the dispute underlying
the ILOAT’s Judgment No. 2867 were in agreement that the Fund and the Global
Mechanism are separate legal entities and that the Complainant was a member
of the staff of the Global Mechanism, and considering all the relevant
documents, rules and principles, was the ILOAT’s statement, made in support
of its decision confirming its jurisdiction, that ‘the Global Mechanism is
to be assimilated to the various administrative units of the Fund for all
administrative purposes’ and that the ‘effect of this is that administrative
decisions taken by the Managing Director in relation to staff in the Global
Mechanism are, in law, decisions of the Fund’ outside its jurisdiction
and/or did it constitute a fundamental fault in the procedure followed by
the ILOAT?
III. Was the ILOAT’s general statement, made in support of its decision
confirming its jurisdiction, that ‘the personnel of the Global Mechanism are
staff members of the Fund’ outside its jurisdiction and/or did it constitute
a fundamental fault in the procedure followed by the ILOAT?
IV. Was the ILOAT’s decision confirming its jurisdiction to entertain the
Complainant’s plea alleging an abuse of authority by the Global Mechanism’s
Managing Director outside its jurisdiction and/or did it constitute a
fundamental fault in the procedure followed by the ILOAT?
V. Was the ILOAT’s decision confirming its jurisdiction to entertain the
Complainant’s plea that the Managing Director’s decision not to renew the
Complainant’s contract constituted an error of law outside its jurisdiction
and/or did it constitute a fundamental fault in the procedure followed by
the ILOAT?
VI. Was the ILOAT’s decision confirming its jurisdiction to interpret the
Memorandum of Understanding between the Conference of the Parties to the
United Nations Convention to Combat Desertification in Those Countries
Experiencing Serious Drought and/or Desertification, Particularly in Africa
and IFAD (hereby the MoU), the Convention, and the Agreement Establishing
IFAD beyond its jurisdiction and/or did it constitute a fundamental fault in
the procedure followed by the ILOAT?
VII. Was the ILOAT’s decision confirming its jurisdiction to determine that
by discharging an intermediary and supporting role under the MoU, the
President was acting on behalf of IFAD outside its jurisdiction and/or did
it constitute a fundamental fault in the procedure followed by the ILOAT?
VIII. Was the ILOAT’s decision confirming its jurisdiction to substitute the
discretionary decision of the Managing Director of the Global Mechanism with
its own outside its jurisdiction and/or did it constitute a fundamental
fault in the procedure followed by the ILOAT?
IX. What is the validity of the decision given by the ILOAT in its Judgment
No. 2867?”;
Whereas certified true copies of the French and English texts of that
resolution were transmitted to the Court under cover of a letter from the
President of the International Fund for Agricultural Development dated 23
April 2010 and received in the Registry of the Court on 26 April 2010;
Whereas the President of the Fund indicated in his letter that, pursuant to
Article 65 of the Statute, all documents likely to throw light upon the
question would be transmitted to the Court;
Whereas, by letters dated 26 April 2010, the Registrar gave notice of the
request for an advisory opinion to all States entitled to appear before the
Court, pursuant to Article 66, paragraph 1, of the Statute,
1. Decides that the International Fund for Agricultural Development and its
Member States entitled to appear before the Court, the States parties to the
United Nations Convention to Combat Desertification entitled to appear
before the Court and those specialized agencies of the United Nations which
have made a declaration recognizing the jurisdiction of the Administrative
Tribunal of the International Labour Organization pursuant to Article II,
paragraph 5, of the Statute of the Tribunal are considered likely to be able
to furnish information on the questions submitted to the Court for an
advisory opinion;
2. Fixes 29 October 2010 as the time-limit within which written statements
on these questions may be presented to the Court, in accordance with Article
66, paragraph 2, of the Statute;
3. Fixes 31 January 2011 as the time-limit within which States and
organizations having presented written statements may submit written
comments on the other written statements, in accordance with Article 66,
paragraph 4, of the Statute;
4. Decides that the President of the International Fund for Agricultural
Development shall transmit to the Court any statement setting forth the
views of the complainant in the proceedings against the Fund before the
Administrative Tribunal of the International Labour Organization which the
said complainant may wish to bring to the attention of the Court; and fixes
29 October 2010 as the time-limit within which any possible statement by the
complainant who is the subject of the judgment may be presented to the Court
and 31 January 2011 as the time-limit within which any possible comments by
the complainant may be presented to the Court; and
Reserves the subsequent procedure for further decision.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-ninth day of April, two thousand and
ten.
(Signed) Peter TOMKA,
Vice-President.
(Signed) Philippe COUVREUR,
Registrar.
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