Effect of Awards of Compensation Made by the United Nations Administrative Tribunal - Advisory opinion

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(unof ficial )

The following infc:mtion Prom the hgistry of the international
Court of Justice has been commmricâte o the Press:

The Intemaiional Courtof Justice today (hly l3th, 1954)
delivered its kdvfsoryOpinion in the matter of the Effeck af Awards of
Compensaiion madeby the United Kations Xdiiiinistrative Tribunal.

The request for lidvisory Opinion had been stlbmitted to the Cowt

by the General Assenibly of the United Nations, which, on Decemberqth,
1953, adopted the following Fiesolution for this purpose:

lT--e GenA-2al Assem'olx,

--..-.---n- the reque st for a supplemen try appropriation
of $179,42 0,ade by the Secretav-Gzneral in his repod
(~/2534) for the purpose of covering the awards made by the
United Nat ions Administ~a ite Tribunal in eleven cases
numbered 26, and 37 to 46 inclusive,

@ Considering the concurrence in that appropriation by the
Advisor;. Cornittee on f~dininistrative and Budgetary Questfons
contained in its tmnty-fourth report to the eighth session

of the General. hssvmbiy {A/21;80),

-ons.--rh~, neverthele 5s, th2t hpostant legal que skions
have been raised in the course of debate in the Fifth Cornnittee
with respect to that appropriation,

De---,d.

To submit the f~llowing~lega qlestions to the International
Gowt of Justice for an advisory opinion:

i(1) Maving regard to tle Statute of the United Nations
Adminis trati~reTribunal and to any otherrelevant

instruments and to the relevant records, has .the
.General Assembly the right on any grounds to refuse
ta giveeffcc', to an award of compensatio nade by
* thatTribunal in favour of a staff rnernberof the United
Nations vrhose codract of service l~asben terminatsd
without his assent?

(2) If the' answer given by the Cowt to question (1) is
in the affirmative, what are the principal grounds
uponwhich the kneral Assembly could lawfully exerciae
çuch clright?'I ,1

The Court had given an apportunity to the Nenrbers of the United
Nations and to the international Labour Organisatio no submit their
views on this mattes. T?ri%ten statements were' presentôd on behslf of

thisOrganisatio nnd on behalf of France, SF~den, the TJstherLands,Greece,
the United Kingdom of Great B~rtain 2nd PiTortbern Troland, the U.'S.A., the
Philippines , E~iexic, Chile, Iraq, the Repuhlic of China, Guatemala,
Turkey and Ecuador. In the course of I-iearingsheld for this~pwpose
in June, oral statements were submitted on behalf of the United States,
France, Gree ce, the United Kingdorn and the Pistherlands .

The Secretary-General of the United Nations had transmitted to the
Cowt dl documents lilcelgto throkr light upon the question; a written
and an oral statement mre also presented on his behalf.

To .... To the first a,uestion the Court has tod~y replied that the r
General Assemblyhas not the right on any grounds to refuse to give
effect to an award of ~orr~pensation m2G.eby the Adninistrative Tribunal
of the United Nations in favour of e staff rnernberaf the United Nations
whose contract of service has been twminaled iu2thou-t; his assent. As
the answer to the first question in the negative, it was unnecessary
fortheCourt te consider the second.

The Cowt 1s Opinion -r41areached nine votes Lo tkree : the

statementa of the Opinions of the three dlsscnting Judges (~udge
Alvarez, Judge li:ackwoAh and Jud~e Levi Carneiro) ase appended to the
Opinion. One Judge who did not dissant (~ud~e Winiarskl ,)whjle
voting for the Opinion, appended thereto a siateinent of his separate
Opinion.

In its Opinion, the Court beginç by analysing thefirst of the
questions submitted to Tt, This question, trhich is general and
abstract, is strictly lblted in scops. If one comparesits tems
with those of the Sta-Lute of the Tribunzl, it Is clear thatit
concems only awards made by the Tribunal tvithin the limits of i-bs
statutory competence. Lt is, moreaver, clear from the documents
submittedto the Court that it contemplate osnly awarda made by a
properly constituted tribunal. Lastly, it relates solelyto awards
made by the Tribunal in favow of staff mernbers whose contracts of

service have been teminated wlthout ttheir assent.

The reply to bc given to thls que seion - which does noi involve
an examination of the judgments l~hich gave rise to the request for an
jidvisory Opinion - depends an the Stsiute of the Tribunaland on the
StaffRegu1atiori a.nd Rules, ?ifter exasr~inntion oi" these teAs, the
Court finds that the Statute of the Tribunal employs termlilology
indicative of its judicial character : "pas s judgment upon applications Il,
litribunaiil',tljudgmentT T'.e provisions to the effect that l'inthe
.event of 2 dispute as to whether the Tribunal has competence, the

matter shall be settlee by the decisionof the Tribun&'' and that "the
judgments shall be final ad dthout appealll are similasly provisions
of a judicialcharacter. It follot\rstl-iat the Tribun21 is established
as an independent and truly judicialbody Ijronounçing final judpents
without eppeal within the lhited fieldof itç functionç. The power
conferred upon it to order the rescinding of decisians taken by the
Secretary-Genera olf the United Nattons - the cchif administrative .
officer of the Organization - confims itç judicial eharacter: such
a pmer could hardy have been conferred on an acnvisory or subordinate
organ.

The Court next points oirt that,accoràing to a well-established and
generally re cognized prtrlciple of law, a judgmont r~nendered b;r such a
judicial body is res Au-dicata <and has binciing force betweenthe perties
%~.the disputa. Who, then, are to 'oe regarded as parties bound by an
award? The answer is to be found in the contracts of service. These
are concluded between the staffmember concemed and the Secretzzy-
General, in his cqacitg as the cliief administrative officer of the
United Nz.tions Orgmlzatian, acting on behalf of that Orgmization as
its repre senlative . The Secre tary-General engages the legal responsi-
bility of the Orgmiz,ation, which is the juridical person on whose

behalf he acts. If he kenninates the contract of service without the
assent of the staff mi:mber, and this action resultç in a disputewhich
5s referred io the Illdministrative Tribunal, the parties ta this dispute

before .... befoine the Tribuna are the staff mernbar concerned and the United
Nations Organization, represented lqrthe Secretwy-Qneral, 8nd these
pzrtics vs411 become bound by the judgment of the Tribunal. The
judgment, rvhich is final and l#cithou-tappeal 2nd not sub ject io any
kind of review, has bindingforce upon the United Nations Orgmizztion '
as the juridic~l persan responsible for the propep observance of the

contract of service. Since the Orgmization becomes legally bound to
carry out the judgmnt, and Go pay the compensxtion ewzrcled to the
staff nember, it follov~ that the General iissernbly, as an orgm of the
Unitsd Metions, must liker%?se be bound. This conclu.sion is conf imed
by the provisions of the Statute of the Tribunal itself, trhich rnzkes
it clear that payment of compensation aw?..rded ty the Tribunal is rn
obligation of the United Nations 2s a rzko1.è - or, as the case may ba,

of the specialized agencg cancemed.

The Court next poifits out that If, as tlie msult of a deliberate
decision, the Statute of the T~ibwa3. contains no provision for review
of the judpmt s or for appeal., as it might I-iave dune, it does not
a follow that the Tribunul cznnot itself revise a judgment In special
circmstances when new facts of deciçive importnnce have been
discovered. The Tribunal has, indeed, already adopted suçk a course,

which conf orms wit h principle s generzl-ly provided in statut es and hws
issued for cowts of justice.

But has the. Gener2.1 Assernbly itself, in cert=ain exceptional
~ircurnst~~ces, the right to refuse to give effect ta judgments, in
c?,ses outside the scopz of the question as dsfined above by the Coh,
in the case of smards made in exceçs of the Tribunal s cornpetence or
vitiated by some other defect? The Tribun2.l is one within the

orgmized legal systemof the United Mctionç, dealing e~clusivel yith
intemal disputes betwzen the ni?tnbersof the staff ad the Orgaaiz2tion;
in these circumstançes, the Court considers thati*r the absence of any
expressprovisions tu this effect, its judg~ents cmot be subject to
review b;lmy body other than the Tribunal itself. The knercl Assembly
can 21ways mend the Statute of the Tribwizland provide foi: review of
itç awzrds: in ,zny cvent, in the opinion of the Coufi, th^ Generzl
kçsembly itself, in view oT its composition md functions, could hardly
a act as a judieial orgm., dl- the more so as 'one party to the disputes

is the Orga,nization itself .

A nwnber of argmnts were put forvzb7nt;in support of the vlew
that the General Assembly mzjr be justlfied in ~ef~ising to give eff ect
to awards of the Tribunal. The Court mets these arguments Ln the
second part, of its Opinion.

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Lt was culitended that the General iosembly has no legal power ta
establlsh ü tribunal corr.petent to render jud~ents Shliding on the
United IIations. Biit althoueh there are no express provisions to this
effect in the Charter, it a-?!>ears from the Chder itself th& such a
power is çonferred by necessaTF implication, Indeed, it Is essential,
in order to snsure the efficiefit working of the Secretariat and to
give effect to the para~ount consideration of securing the highesk

standards of eff iciency, coispetence ad integriky .

,, It rias .., It was aïso contended thatthe General Assemblycould not
establish a tribunal withsuihority to make declsians bindtng on the

Generalkssembly itsell. But the precise nature and scope of the
measures by which the pmer of creating a tribunal was to be exercised -
even'thoug the power was an implied one - wase matter for determination
bytheGeneral kssemblyalone. It vrasfurthor arguedthat thepmér
thus ,exercised would be inconsistent with the budgetary power reserved
, to the General Assembly, But a budgotary power is not absolute.Mhere
expenditure arises out of obligations, the General Rssembly has no
alternative but to honour these engagements, andawards of the Tribunal
fa11 within this category.

1t was dso contended th& the impliedgor@r of the General Assembly
to establish a tribunal canr~othe carried so iar as to enzble the .
tribunai to iniervene in mattersfalling trithin the province of the

Secretary-General. But by virtue of the provisions of the Charter,
the Gensral kssemblycould a-tdl Limes limit or controh the pbwers
of the Secretary-GcnerX in staffrnaiters. It ha.s authorized the
intemention of the Tribunal in such rri~tterwikhin thelimitsof the
jurisdiction which it conferred upon the Tribunal. Accordingly, when
acting wlthin these limits, the Tribunalis in no sense intervenkg in
a Charter power of the Se cretary-General, because the Secret exy-General s
ZegaL POI~~S in staff matters have crlready been 1imi.ted in this respect
by the Cenerd Xssembly.

luioreaver, the fact that the 'Tribunf iis a subsldiary, subordinate
or seçondary organ 5s of no importance. mat is of importance 3s the
intention of the Generel Assembly in vstablishin ghe Tribunal, and
what it intsnded toestablish was 2 judicial body'.

With,regard to what has bcen called the precedent established by
the League of Nations in 1946, t'rieCourt cannot followit. The vewy
special circumstence~ sxisting then tlrerequite different from the
present circustances; there is a complete lackof identity betvreen
the two situations.

Havfng thus arrived at the conclusion that th2 first qtiestion
subm5tted by the General Assenibly must be answered in the negztive, a

theCourtfindsthatthesecondquestion daes not arise.

The Hague, July bjth, '1954.