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Peace Palace. The Hague ,Tel3é 2344 ,Cables: lntercourt. TheHague
communiqul
uao/lkial .
forimnmdiatee/eas~
No. 73/26
12 July 1973
The International Court of Justice delivers its Advisory
Opinion on the Application for Review of Judgement No. 158
of the United Nations Administrative Tribunal
The Registry of the International Court of Justice communicates
the fo11owing information to the Press:
Today, 12 Ju1y 1973, the International Court of Justice delivered
it~ Advisory Opinion on the above question.
The request for an ad:v.isory opinion had been submitted to the
Court on 3 July 1972 by a letter of 28 June 1972 from the Secretary
General of the United Nations in the fol1owing terms:
"The Committee on Applications for Review of Administrative
Tribunal Judgements bas decided that there is a substantial basis
withiwithin the meaniog of Article 11 of the Statute of the
Administrative Tribunal for the application for the review of
Administrative Tribunal Judgement No•. 158, delivered at Geneva on
28 April 1972,
Accordingly, the Committee requests an advisory opinion of
the International Court of Justice on the fol1owing questions:
1. Has the Tribunal failed to exercise jurisdiction vested in it
as contended in the applicant s application to the Committee
on Applications for Revfaw of Administrative Tribunal
Judgements (A/AC.86/R ,59)?
2. Has the Tribunal committed a fundamental errer in procedure
which has occasioned a failure of justice as contended in the
applicant's application ta the Cornmittee on Applications for
Review of Administrative Tribunal Judgements (A/AC.86/R ..59) ?1·
The Court decided, by 10 votes to 3, to comply with the request,
and is of the opinion:
with regard to Question I, by 9 votes to 4, that the Administrative
Tribunal bas net failed to exercise the jurisdiction vested in it as
contended in the applicant 1s application to the Committee on
Applications for Review of Administrative Tribunal Judgements;
with regard to Question II, by 10 votes to 3, that the
Administrative Tribunal has not committed a fundamental errer in
procedure which bas occasioned a failure of justice as contended
in the applicant 1s application to the Committee on Applications for
Review of Administrative Tribunal Judgements.
*
For •... ..
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.·~ 2· -·;.1'·
•r~1..~1't•e•e·· p:\"Opeedin>s, the Court was composeh as foll1w':
President Lachs; 'Vice.:.President Ammouh; Judges Forster, Gros, Bengzon,
Onyeama, Dillard, de Castro., Morozov, Jiménez de .f\.réchaga,
Sir Humphrey Wa-".tdeck·;Nageridra Singh and Ruda. 1
President La.chs has appended a declaration t1 the Advisory Opinion,
and Judges Forster ar.d Nagendra Singh a joint decILaration. .Separate
opinions have been appended by Judges Onyeama, Di~lard and Jiménez de Aréchaga;.
and dissenting opinions by Vice-President Ammounjmd Judges Gros, de Castro
and Morozov. i
' . . . . . . 1
Judges Petrén and Ignacio-Pinto did not takei part in the_proceedings,
having by virtue of Article 24 of_ the ·st·~-t:;-qt~fbrmed the President that
they did not consider they should do so.
The Vice-Presidents Judge de Castro· and Judg'e Dillard, though they
had played a full part in the proceedings and par;ticipated in the vote,
were prevented for reasons of health from taking part in the sitting for
the reading of the Advisory Opinion. '
e
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An analysis of the Advisory Opinion is gi ven\ below. It has been
prepared by the Registry for the use of the Press: and in no way involves
the responsibility of the Court. It cannot be quoted against the actual
text of the Advisory Opinion, of which it does no~ cons!itute an interpretation.
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The printed text of the Advisory Opinion, de:clarations and separate ·
and dissenting opinions will be available shortlyi. Orders and enquiries
should be addressed to the Distribution and Sales/ Section, Office of the
United Nations, 1211 Geneva 10, or to the Sales S~ction, United Nations,
New York, N.Y. 10017.
*
* *
Analysis of the Advisory Opinion
•
Facts and Procedure (paras. 1-13 of the Advisory :Opinion)
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In its Advisory Opinion, the Court recalls that Mr Mohamed Fasla,
an official of the United Nations Development Pro grarnme (UNDP). held a
fixed-term contract which was due to expire on 311 December 1969. When
his contract was not renewed., he appealed successli vely ta the Joint Appeals
Board and ta the United Nations Admini.stra.ti ve Tribunal. The Tribunal
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gave its decision in Judgement No. 158 at Geneva pn 28 April 1972,
On 26 May 1972 Mr. F:él.slaraised objections to the'. decision and asked the
Committee on Applications for Review of Administrb.tive Tribunal Judgements
to request an advisory opinion of the Court. Th!is the Committee
decided ta do on 20 June 1972. 1
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In formulating the request for an advisory opinion, the Committee on
Applications exercised a power conferred upon it py the General Assembly
of the United Nations in resolution 957 (X) of 8 November 1955, by adding
to the Statute of the United Nations Administrati ve Tribunal a new
Article 11 providing inter alia:
11. If .... - 3 -
111. If ••• the pers on in respect of whom a judgement has
been rendered by the Tribunal .•. abjects to the judgement on
the ground that the Tribunal ••• has failed to exercise jurisdiction
vested in it ••• or has committed a fundamental error in procedure
which bas occasianed _a failure of justice .•• the persan concerned
may , •. ma.ke 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•••• the Committee shall decide whether or net there is
a substantia.l basis for' the application. If the Commtitee decides
that such a basis exists~ it shall request an advisory opinion of
the Court, and the Secretary-General shall arrange ta transmit to
the Court the views of the persan referred ta in paragraph 1.
3, ... the Secretary-General shall either give effectto
the opinion of the Court or request the Tribunal to c-onvene
specially in order that it shall confirm its original judgement,
or give a.new judgement, in conformity with the opinion of the
Court , ••
•
4. 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 the Member States the representatives of which have
served on the General Committee of the most recent regular session
of the Genera 1 Assembly 11
Pursuant to Article 65, paragraph 2, of the Statute of the Court,
the Secretary-General of the United Nations transmitted to the Court
on 29 August 1972 documents likely ta throw light upon the question.
Pursuant to Article 66, paragraph 2, of the Statute, the United Nations
and i ts rŒmber States vrnre informed that the Court w.ould be prepared
te receive written statements likely to furrtish information on the
question putto it. Within the time-limit fixed by an Order of
14 July 1972 (I.C,J, Reports 1972, p. 9), i.e., 20 September 1972~ the
United Nations submitted a written statement on behalf of the Secretary-General,
together with the v.iews of Mr. Fa.sla, transmitted to the Court in
accordance with Article 11, para.graph 2, of the Statute of the Administrative
Tribunal. Sub.sequently Mr. Fas la was au thorized ta present, through the
Secretary-Genera.l, a. corrected ·yersion of the statement of his views within
a. time-Iirr.it expiring on 5 December 1972, The time-limit for the. submission
of wri tten comments under Article 66, paragra.ph 4, of the. -statu te of the
Court having been fi.xed by the President at 27·November 1972 and then
extended ta 31 January 1973, writ.ten comments were filed on behalf of the
United Nations, comprising the comments of the Secretary-General on the
corrected version of the statement.of the views of Mr, Fasla, and the
cornments of Mr. Fas la on the sta.tement subrni tted on behalf of the
Sec re tary-General. The United Nations and i ts mambe r States had been
informed on 6 October 1972 tha.t i t was not conternplated that public
hearings for the submissi.on of. oral statements would be held in· the case;
this was confirmed by a decision of the court on 25 January 1973,
Jurisdiction •••• 1
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C__o_m_p_e__ t_e_o__f_t_h_e_C_o_u_ (ratras. 14-40 of the Adv1sory Opinion)
!
The proceedings represented the first occasi en on which the
Court had been called u.pon to consider a request for an advisory opinion
made under the procedure laid down in Article 11 1r the Statu.te of the
Administrative Tribunal. Accordingly, altbough, in the statements and
comments sub!ni tted to the Court, no question was raised ei ther as to
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the competence of the Court to give the opinion Of as to the propriety
of its doing so, the Court examined those two queètiins in turn.
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As to the Court' s competence, the Court considered inter alia.
whether the Committee on Applications for Review dould be considered
one of the "organs of the United Nations" entitled to request advisory
opinions under Article 96 of the Charter, and bad \any activities of
its own which enabled it to be considered as requesting advisory opinions
on legal questions a,rising within the scope of its\ activities, as
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provided by Article 96. The Court concluded that jthe Committee was an
organ of the United Nations, duly constituted unde\1- Articles 7 and 22
of the Charter, and duly authorized under Article 96, paragraph 2, of
the Charter ta request advisory opinions of the Court. It followed
that the Court ~,as competent under Article 65 of i~s Sta.tute to
entertain a request for an advisory opinion from t:'1e Committee made
within the scope of Article 11 of the Statute of tfue Administrative
Tribunal. \
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The Court then considered whether the chara.ct~r of certain features
of the review procedure should lea.d it to decline to answer the request
for an opinion, It found that there did not appeari to be anytbing in
the character or opera.tien of the Committee which ;equired the Court to
conclude that the review procedure wa.s incompatiblJ 1 with the general
principles governing the judicial process. and it r1ejected the objections
based upon what was sa.id to be an inberent inequa11:ty between the staff
member, on the one band, and the Secretary-General k.nd member States,
on the other. 'lilhile not considering that the reviei-7 procedure was free
from difficulty, the Court ha.d no doubt that, in th~ circumstances of the
case, it should comply wi th the request for an advisbry opinion.
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Scope of the Questions putto the Court (paras. 41-~8 of the Advisory
Opinion) :
\
The Court noted that the two questions formulaiied in the request
were specifically limited to the grounds of objecti9n ra.ised and
contentions put forward by Mr. Fasla in bis applica.t ion to the Committee.
The two grounds advanced corresponded te two of the 1grounds of objection
specified in Article 11 of the Statu.te of tbe Adminiistra.tive Tribunal,
namely failure to exercise jurisdiction and fundamen~al errer in
procedure. A challenge ta a decision of,the Tribuna~ on one of those
two grounds could net properly be transf'ormed into a; proceeding against
the substance of the decision. ',
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I·
Was There a Fa.ilure by the ,Administrative Tribunal t6 Exercise
Jurisdiction Vested In It? (paras. ,49-87 of the Aq.visory Opinion)
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In the Court's view, this first ground of chall~nge covered
situations where the Tribunal had either consciouslylor inadvertently
omitted to exercise jurisdictional poi,,ers vested in ft and relevant for
i ts decision of the ca.se or of a. particular material 1,issue in the case.
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In ,....... •
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In tbat connection, the Court rejected the contentions of Mr. Fasla
that the Tribunal had failed to exercise jurisdiction in that it had not
fully considered and passed upon bis claims for damages for injury to
professional reputation and career prospects and for reimbursement of
costs, and in that it had omitted to order the recalcula.tian of his
remuneration and the correction and completion of bis persona! record,
The Court next examined certain contentions which had not been
fully set forth by Mr. Fasla in his application to the Committee on
Applications for Review but which he had enlarged upon in the statement
of his views transmitted to the Courts according to which his recall
and the non-renewal of his contract had been decided for unlawful reasons
constituting a misuse of powers. The Court noted that, in his application
to the Tribunal, Mr, Fasla had net requested the rescission of those
decisions on grounds of illegality or improper motivation, and that the
Tribunal could not be accused of failure to exercise jurisdiction on the
ground that it had failed to take measures which had net been requisite
for its adjudication and which none of the parties had asked it to take.
Did the United Nations Administrative Tribunal Commit a Fundamental
Error in Procedure Occasioning a Failure of Justice? (paras. 88-100
of the Advisory Opinion)
•
The Court first determined the meaning and scope of the concept of
fundamental errer in procedure which had occasioned a failure of justice.
In cases before the Administrative Tribunal the essence of the matter was
that a staff member had a fundamental right to present his case, either
orally or in writing, and tohave it considered by the Tribunal before it
determined his rights. An error in procedure was fundamental and
constituted a failure of justice when it was of such a kind as to violate
that right and in that sense to deprive the staff member of justice.
'Ihe Court noted that what Mr. Fasla formulated under the heading
whether of failure to exercise jurisdiction or of fundamental errer in
procedure~ or both simultaneously~ appeared ta be essentially the sa.me
complaints, concerning for the most part the manner in which the Tribunal
had adjudicated the merits of his claims, rather than assertions of
errors in procedure in the proper sense of the term. His only complaint
concerning an error in procedure was the ccmplaint that the Tribunal's
decisions rejecting the claims had not been supported by any adequate
reasoning, After considering this complaint, tbe Court conpluded that,
having regard to the form and content of the Judgement, its reasoning
did net fall short of the requirements of the rule that a judgement of
the Administrative Tribunal must state the reasons on which it was based.
The Court fina .l.ly declared that there was no occasion :for it to
pronounce upon Mr. Fasla s request for costs in respect of the review
proceedings, It confined itself to the observation that when the Committee
found that there was a substantial basis for the application, it might
be undesira.ble that the costs should have to be borne by. the staff member.
For these reasons, the Court has given the decision indicated above,
Application for the Review of Judgment 158 of the United Nations - Administrative Tribunal - The Court delivers its Advisory Opinion