No CrossRef data available.
Article contents
The International Court of Justice — Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O.1
Published online by Cambridge University Press: 21 May 2009
Extract
Three years ago, the International Court of Justice was called upon to express its opinion on the question as to whether certain judgments rendered by the Administrative Tribunal of the United Nations (U.N.) in favour of officials of the Secretariat dismissed by the Secretary General were final. The latest Advisory Opinion of the Court under the above heading was once again concerned with the final character, or otherwise, of certain judgments of an Administrative Tribunal, on this occasion the Administrative Tribunal of the International Labour Organisation (ILO), recognized by the Governing Body of the United Nations Educational, Scientific and Cultural Organisation (UNESCO), in a special declaration under Article II, paragraph 5 of the Tribunal's Statute, as also competent to hear complaints of UNESCO officials. In both instances the answer of the International Court was in favour of the final character of the Tribunal's judgments, but the circumstances in which the question arose were varied and the Tribunals acted under somewhat different Statutes. In the second case it was no longer contested that the pronouncements of the Tribunal concerned were real judgments and, therefore, binding in principle.
- Type
- Articles
- Information
- Copyright
- Copyright © T.M.C. Asser Press 1957
References
page 236 note 2 Advisory Opinion of July 13th, 1954: I.C.J. Reports 1954, p. 47.Google Scholar See about that Opinion this Review, vol. III, p. 25 et seqq.
page 237 note 1 “It is with a deep sense of my responsibilities,” the Director-General wrote, “that I have come to the conclusion that I cannot accept your conduct as being consistent with the high standards of integrity which are required of those employed by the Organization.”
page 240 note 1 “In a word, the contentious jurisdiction, the true judicial function of the Court, covers contentious disputes between States only and exclusively.-In debarring individuals from corning before the Court as parties to “a case”, that is, to a contentious litigation, the Statute adopted the theory that individuals are not subjects of international law.” (Judge Córdova's dissenting opinion, Reports, p. 160.)Google Scholar
page 241 note 1 Reports, p. 104 et seqq. In this opinion Judge Winiarski gives a survey of the origin and development of the advisory function of the Court, in the relevant texts and in actual judicial procedure.
page 243 note 1 See this Review, vol. I, p. 58 et seqq.-In that case complaints had to be “based on” certain treaty provisions, whereas the UNESCO officials had only to “allege” non-observance of certain terms or provisions, a more flexible expression. The precedent of 1953 applied, therefore, to the case of 1955 a fortiori.
page 243 note 2 “Since the task of the Court is to give an Opinion on the challenge raised against a concrete decision of the Tribunal confirming its competence, the Opinion should naturally relate to the grounds on which the Tribunal held that it had jurisdiction. In general, the Court's rôle should not be to examine the Tribunal's jurisdiction and to adjudicate upon it proprio mota”(Report, p. 138).
page 244 note 1 The decision was couched in the following terms: “that all professional staff members whose contracts expire between now and June 30th, 1955 (inclusive), and who have achieved the required standards of efficiency, competence and integrity and whose services are needed, will be offered one-year renewals of their appointments”. — The question whether the officials fulfilled the conditions required in the Memorandum was not, of course, itself before the Court.
page 245 note 1 Reference was made inter alia to certain statements by the Director-General himself (1954) according to which “the existing Regulation 4.5.1 … obliges the Director-General to give indeterminate appointments to all staff members after they have satisfactorily completed a fixed-term appointment of one to three years, unless he considers that, “in the light of programme requirements”, he should only give a further fixed-term appointment”.
page 245 note 2 “A fixed-term appointment shall expire upon completion of the fixed-term unless a new appointment is offered and accepted three months before the expiry date …” — Staff Rule 52 (d) subsequently became Rule 104.6 (d).
page 245 note 3 The Opinion quotes many more provisions but it is not feasible here to reproduce the whole reasoning which would seem to be somewhat prolix and repetitive.
page 248 note 1 The Tribunal expressed itself in the following terms:
under the heading “On the substance”, sub B: “Considering that if the Director-General is granted authority not to renew a fixed-term appointment and so to do without notice or indemnity, this is clearly subject to the implied condition that this authority must be exercised only for the good of the service and in the interest of the Organisation”,
and under the heading “On prejudice”: “That the decision not to renew the appointment is one which should not only be rescinded in the present case, but also constitutes a wrongful exercise of powers (French text: détournement de pouvoir) and an abuse of rights (French text: abus de droit) which consequently involves the obligation to make good the prejudice resulting therefrom”.
page 248 note 2 As Rudolf Laun has judiciously argued in his article “Bemerkungen zum freien Ermessen und zum détournement de pouvoir im staatlichen und im Völkerrecht” in Festschrift für Herbert Kraus anlässlich seines 70. Geburtstages, p. 128 et seqq., the concept of “détournement de pouvoir” plays a part only in cases where the administrative authority is invested with discretionary powers and not where its powers are defined by law.
page 250 note 1 Reports, p. 116 et seqq.
page 250 note 2 Reports, p. 143 et seqq.
page 251 note 1 The dispositive runs as follows:
“On the grounds as aforesaid
The Tribunal…
Declares that it is competent;
Orders the decision taken to be rescinded and declares in law that it constitutes an abuse of rights causing prejudice to the complainant;”