.JUDGMENT No. 2867 OF THE ADMINISTRATIVE TRIBUNAL OF THE
INTERNATIONAL LABOUR ORGANIZATION UPON A COMPLAINT FILED AGAINST
THE INTERNATIONAL FUND FOR AGRICULTURAL DEVELOPMENT
(REQUEST FOR ADVISORY OPINION)
Complainant's Comments
1. Introduction
1. The complainant has already set out her views on the questions put to the Court in the request
for an advisory opinion. The present comments are therefore limited to particular elements of the
detèndant's statement requiring comment. They also correct errors in the complainant's statement
of 20 October 201 O.Additional document G is attached; itis thLetter from.the President, IFAD, to
the Complainant. 18 July 2007.
2. There is much that could be said on the issues raîsed by the defendant, but mindful of the
Court's Practice Direction III, the complainant will refrain from challenging every passage of the
detendant' s statement with which she disagrees. The comments instead deal at some length with the
detèndant's arguments conceming IFAD's functions, which have broad application, and with its
arguments concerning non ultra petita, as an example of the inapplicability of such arguments to the
present case.
Fonctions of the Fund and of the Global Mechanism
3. The Fund has argued that neither the complainant, nor the Managing Director nor, when acting
under the Memorandum of Understanding, the President of lFAD has pertonned the •·runctions" of
IFAD. This leads it to conclude that the Tribunal did not have jurisdiction over IFAD in respect of
the complainant, the actions of the Managing Director orthose of the President of IFAD.
4. The most authoritative definitionof responsibility according to function is found in the
International Law Commission·s draft articles on the responsibility of international organizations.
cited by the defendant. Article(2) states: '·Rulesof the organization shaHapply to the
determination of the functions of its organs and agents." Article 2(b) defines "rules" to mean, '"in
partîcular, the constituent instruments, decisions, resolutions and other acts of the organizarion
adopted in accordance with those instruments, and established practice of the organization'' (Report
of the International Law Commission, 61srSess. 2009,UN Doc. N64/10, pp. 20-21).
5. IFAD's '"objectiveand functions''are set out in Article 2 of the Agreement Establishing IFAD
(IFAD's Document 1):
The objective of the Fund shaHbe to mobilize additional resources to be made available on
concessional terms tor agricultural development in developing Member States. In fulfillîng
this objective the Fund shaHprovide financing primarity for projects and programmes
specifically designed to imroduce, expand or improve food production systems and to
strengthen related policies and institutions within the frameworknational priorities and
strategies, taking into consideration: need to increase food production in the poorest food
deficit countries; the potential for increasing food production in other developing countries;
and the importance of împroving the nufritional Jevel of the poorest populations in
developing countries and the conditions nf their lives. 6. The purpose of the Global Mechanism is defined in article 21(4) of the Desertification
Convention (IFAD's Document IV):
In order to increase the effectiveness and effidency of existing financial mechanisms, a
Global Mechanism to promote actions leading to the mobilizatîon and channelling of
substantial financial resources, including for the transfer of technology, on a grant basis,
and/or on concessional or other terms, to affected developing country Parties, ishereby
cstablished. This Global Mechanism shaH function under the authority and guidance of the
Conference of the Parties and be accountable to it.
7. The two statements appear to be compatible. This îs confirmed by IFAD's consistent daims,
prior to the present proceedings, that hosting the Global Mechanism makes IFAD more effective in
fulfillîng its functions (see Joint Inspection Unit, Assessment of the Global Mechanism of the
United Nations Convention to Combat Desertification, 2009, para. 112-116 1;Independent Externat
Evaluation of IFAD, Desk Review Report, July 2004, para. 4.22, 4.29 2).
8. If there were any doubt about the Fund's functions encompassing the operations of the Global
Mechanism, it was removed when IFAD's Governing Council, noting "the important role played by
IFAD ... in combatting desertification," specifïcally authorized the President of IFAD to sign the
Memorandum of Understanding on behalf of IFAD (see Complainant's Statemcnt para. 55). The
Court is requested to take note of the Agreement Establishing IFAD (IFAD's Document I).article
6, section 2(b): "Ail the powers of the Fund shaH be vested in the Goveming Council." This would
appear to be authoritative. In any event, to make sure, the Memorandum of Understanding itself
specitïes, "As the housing institution, the Fund will support the Global Mechanism in performing
these functions in the framework of the mandate and policies of'the Fund:' (IFAD's Document
V(5), PartI, emphasis supplied.)
9. ln accepting responsibility for the Global Mechanism, IFAD adopted the latter's functions as its
own. Thus even if sorne of the activüies of the Global Mechanism were different from the main
activities of !FAD, which is not conceded, the Governing Council bas brought them within the
functions of IFAD.
II. Responses to the Questions
Question 1
10.The defendant has argued that the cornplainant was not a staffmember of IFAD and therefore
that the Tribunallacked jurisdiction ratione personae. The complainanfs status as a staffmember is
lully substantiated in the Complainant's Statement (para. 16-23). ILOAT Judgments 68 and 1033,
cited by IFAD and involving persons that did not have staff contracts with the defendant
organizations, are irrelevant tothe present proceedings.
1!. The defendant has attempted toget around the factof the cornplainant' sappointment with IFAD
in two ways. In one it has repeatedly argued that if she worked for theGlobal Mechanism she could
not be a staffmember of IFAD. But theone does not exclude the other, as the offers of appointment
show ("appointment ... with IFAD" tora "position ... inthe Global Mechant sm"). To say a'i
!FAD does that she worked "exdusively tor theGlobal Mechanism and not the Fund'' (para. 106-
l07) or thatshe "was never charged wüh perkmning any of the functionsof the Fund··(para. l01)
isa faise dichotomy. The funetionsof theGlobal Mechanism were fur1ctionsof the Fund.
1h!tp;/:www .unjiu.org/Jata/rcports/2009;en2U09 _04.pJf
- httpJiwww.fad.nrg!cvalua tion/ice/dcskifi nal.pdf12. The defendant has also stated that a ''practice'·of IFAD overcomes the clear words of the
cornplainant' s contract and the applicable staff regulations and administrative instructions. It offers
no evidence of the existence of such a practice, which would surely have induced IFAD to issue
differentomracts ifsuch a practice ever existed. The authority cited does not suggest a practice
that can nullifyhe employment relationship {see P. Sands and P. Klein, Bowett's Law of
International Institutionshed. 2009, p. 430). And in any case, a practice needs to be proved, not
hypothesized (see de Merode, WBAT Dec. No. I.para. 23;Gran Olsen No. 1 and 2, ILOAT
Judgment 1806, consid. 16-174).
L3.The defendant has added arguments concerning the status of the Global Mechanism and its
Managing Director which depend large!y on the false distinction between the functions of the
Global Mechanism and those of IFAD, discussed above.
14.The defendant has also argued thal the Global Mechanism is separate from the Fund without
confronting the fact that the Global Mechanisrn possesses no powersits own. If it is to function.
itdepends on another entity with such powers, in this case IFAD. lFAD has stated (para. 136) that
theMemorandum of Understanding "merely addresses 'the modalities and administrative
operations' of the Global Mechanism.·· This is precisely the cornplainant's argument and the
Tribunal's fi.nding. The operations of the Global Mechanisms, including hiring of staff, are entirely
in the handsof IFAD, and itis in connection with such matters that the cornplaint was brought. The
Tribunal correctly found that the Global Mechanism wasassimilated to the various administrative
units of the Fund for ali administrative purposes''.
15.The defendant has stated (para. 174) that the cornplainant "did not direct her challenge against
the IFAD President or the Fund". This is not correct. She addressed her appeal to the Secretary of
the Joint Appeals Board pursuant to paragraph 10.22.2 of the Human Resources Procedures
Manual. It was refcrred to the Office of the President in accordance wîth paragraph 10.22.4. The
President designated the Managing Director as the respondent aJso in accordance with paragraph
10.22.4(Complainanfs Document G).
Question Il
16.The defendant has taken the lack of argument olegal separatenessof the Global Mechanism
to foreclose the issue administrative separateness.The two are not the same.
17.The defendant has suggested (para. 200) that the Tribunal regarded legal separateness as ·'the
key question" affectingjurisdictïoln tàct, the Tribunal merely stated thdefendant's
argument was mainty based on legal separateness. The Tribunal itself made no ruling on legal
separateness, focussing instead on the administrative assimilation of the Global MechItalso
did not say·•toaillegalpurposes" decisions of the Managing Director are decisions of the Fund. It
sa.idvery caretùlly that. as a result of the assimilation for administrative purposes. '"administrative
decisions taken by the Managing Directoinrelation to staff in the Global Mechanism are, in law,
decisionsof the Fund... This is very similar to the views of the Office of Legal Aftàirs of the t!nited
Nations (sec Cornplainant's Document B).
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'hup://lnwçb90.worklbank.org/crniwbtiwbtwe 609RiAIlcDFX5s5l9!D'OOo;BBk77Hr~sullswcb%2l)f470F6<.
Jhttp:i/www.ilo.org/dyn/Eriblt!x;triblexmainf.ullTcxt?p_lang=cn&pjudgmem _no=1codc::-.ENuagè_ Question III
18. The non ultra petita rule cited by the defendant would only be violated if the Tribunal had
dccided a point not submitted to it.In the passage cited by the defendant, Mr. Amerasinghe goes on
to say, ..The principle requires that ajudgment award as reparation no more than has been requested
by the defendant.'' (C.F. Amerasinghe, Jurisdiction of International Tribunats, 2003, p. 422). This
Court has considered the rule and stated that while the Court may not ''decide upon questions not
asked of it, thnon ultrapetîta rule cannot preclude the Court from addressing certain legal points
in its reasoning" (Arrest Warrant of 11 April2000 (Democratie Republic of the Congo v. Belgium),
Judgment, ICJ Reports 2002 p. 3, at 19). In the opinion of Judge Higgins cited by the defendant. she
cnumerates examples of ether matters the Court may deal with in irs reasoning. '"Noneof these...
she concludes, ··cntailed a determination that one party had acted contrary to international law when
no determination on that point of law had been sought by the other party in its final submission. ''
(Oïl Platforms (Islamic Republic of Iran v. United States of America), Separate Opinion of Judge
Higgins, ICJ Rep. 2003, p. 225, para. 14).
19. The Tribunal clearly did not award more than was asked nor did itdetermine that anyone had
acted contrary to international law witb respect to the other Global Mechanisrn staff rnernbers. The
judgment made no award in respect of the IFAD's other employees in the Global Mechanism, nor is
itresjudicata between them and IFAD.
20. Even on the simple issue whether the status of the other staff members had been submitted to
the Tribunal, the defendant' s statement does not appear correct. In mentioning_their status. the
Tribunal took up the complainanfs allegations that they were IFAD stafl In ber brief shc stated,
'"Alistaff of the Global Mechanism received lFAD contracts" ((FAD's Document Vll.l2, para.3).
In her rejoinder she referred to the Managing Director's supervision of"alarge number of IFAD
staŒ' (i.e., the staffofthe Global Mechanism) (IFAD's Document VI1.14, para. 11), and she cited
the President's Bulletin's collective references to Global Mechanism staff (ibid. para. 7). The
defendant also entered the discussion of the general status of Global Mechanism staff under the
President's Bulletin (IFAD's Document VII. 13, para. 22-23), so the issue can hardly be said not to
have been before the Tribunal.
21. The complainant notes that the defendant's argument (para. 210) for the effect of disregarding
the rule is based entirely on dissenting opinions of this Court. There is no judgment of the Court
that would invaJidate the entire judgment of the Tribunal even if itbad infringed the non ultrapetita
rule with respect to one question.
Question IV
22. The defendant has argued that the Tribunal ignored its daim of lack of jurisdiction to entertain
the plea alleging excess of authority on the part of the Managîng Director. The Tribunal gave
adequate attention to the claim in consideration 8: ..Because decisions of the Managing Director are.
in law. decisions of the Fund, these submissions must berejected."
Question V
23. The complainant would only add to her statement on this point that the "very subject matter··of
the complaint is not the rights of the Global Mechanism or the Conference of Parties. It is the
respective rights of IFAD and an IFAD staff member. Only Eheyare affected hy the decic.oion.No
daims of either the complainant or IFAD against the Conference of Parties were adjudicared by the
Tribunal. 24. If the defendant were correct in its view of Question Y, no action of an employer could be
reviewed by the Tribunal to the extent thatitdepended on-- or was justifîed by- the act of a
supplieror financer or host government. This would carve an enormous exception out of the normal
jurisdiction of the TribunaL
Question VI
25.The defendant has stated that •·according to the Tribunal [the Memorandum of Understandîng]
was the document on which the Complainant relied for the purpose of supporting her complaint."
(Para.246, emphasis supplied.) In fact the Tribunal noted and paid attention to the complainant's
contracts (Complainant's Documents E.l, E.2, E.3),the Human Resources Procedures Manual and
the President's BulletinPB/2004/0 l (IFAD's Document Y(8)). There is no indication that it
considered the Memorandum of Understa:nding to be "the document" relied on by the complainant.
26. The defendant's argument on this point seems to misconstrue what the Tribunal actually
decided. ln consideration 9 it analysed the complainant's otTers of appointment and tound, without
reference to the Memorandum of Understanding, that ''those \vTittenofTers and their subsequent
acceptance clearly constituted the complainant a statJ member of the Fund."
27. In any event, there is no opposition between the Memorandum of Understanding and the
complainant' s terms of appointment. The Memorandum defined the institutional context within
which IFAD made the appointment. Itfonned the basis tor the President's Bulletin which spelled
out further details of the appointment.
28. The complainant wishes to draw the Court's attention to sorne apparent inaccuracies in the
defendanfs statement under Question VI. In paragraph 246 it argues that the Memorandum of
Understanding makes the Managing Director and not IFAD "responsible for ... stafting" (omission
in original).ln tàct the Memorandum reads: ''The Managing Director will be responsible for
preparing theprogramme of work and budget of the Global Mechanism, induding proposed
staffing. which will be reviewed and approved by the President of the Fund before beîng forwarded
to the Executive Secretary of the Convention for consideration in the preparation of the budget
estima tes of the Convention, in accordance with the financial rules of the Conference." Neither
elsewhere in the Memorandum ofUnderstanding nor inthe Managing Director's Position
Description (IFAD•s Document V(9)) is there any mention of his being "responsible for staffing''_
29. in paragraph 251 the defendant has argued that according to the President's Bulletin ·'the
pertinent regulations were explicitly dedared to be inapplicable to the staff of the Global
Mechat!ism". The comp!ainant refers toparagraphs 17 to 22 of her statement for a fuller discussion
of the meaning of the President's Bulletin. Suffice ittosay here that only one regulation, governing
continuing appointments, was dedared to be inapplicable to the staff of the Giobal Mechanism.
Question vn
30. The defendant' s argument for an agency relationship between the Conference of Parties and
IFAD does not explain how thiswould exonerate the Fund from iiability for wrongful actions
toward irsemployees. The Fund did not purport to be acting only asan agent in offering the
cornplainant an appointment ·'withtheFund'·.The Conferenceof Partiesis nowhcre mentioned in
these letters,whîch would bea bare minimum ro make it and notIFADthe contracting party under
the law of ageney. (See the Intemationai Law Commission' s dratt articles on the responsibiiity of
international organizations, artîde 13 on the responsibility of an organization that aîds another organization to commit an internationally wrongful act, Report of the International Law
Commission, 6151Sess. 2009, UN Doc.N64/l0, p. 23.) If IFAD haiin mind to act exclusively as
an agent,it should not have issuIFAD employment contracts.
31. This is anotheruestion on which IFAD bas argued that activiitand its officers engagin
with respect to the Global Mechanism were not its functions. The court is respectfully referred to
the discussion in paragraphsthrough 9.
Question VIII
32. lshould be noted that the views on the scope of review of administrative decisions cited by the
defendant (para.97) as the "words of the President of the Court" were pronounced in dissent. They
also failedo recognize the Jimits to the discretion of the heads of international organizations which
subsequent caselaw in ali international administrative tribunats bas followed. In addition to the
spare wordsof the dissenter ("bad faith, i.arbitrary or capricious") current law would add, as
the Tribunal in Judgment 2867 did, "'thatthe decision ... was taken without authority or was based
on an error of law (see also P. Sands and P. Klein, Bowett's Law of International Institutions, 6 ed.
2009, p. 429). A recent judgment bas stated the law with specifie reference to the non-renewal of
5
an appointment(lLO AT Judgment 2916 consideration 3):
It is well settled that a decision not to renew a contract is a discretionary decision that may
only be reviewed on limited grounds, namely. that "it was taken without authority, or in
breach of a rule of form or of procedure. [ifsorne essential fact was overlooked, or if
clearly mistaken conclusions were drawn from the tàcts,ifthere was abuse of authority"
(see Judgment 1262, under4).
III. Correction of Errors
33. The Court is respectfully requested to accept the correction oftwo errors in the complainant's
submission.Paragraph 58 of her statement should read,
58. The Court is respectfully requested to answer question 1in the affirmative. It is requested
to answer questionsIl-VIIin the negativItis requested to refuse to answer quesVIII,
or alternatively to answer it in the negIt irequested to confirm the validity of
Judgment 2867 in response to questiIX.
34. ItemD in the English text of the ofthe Complainant's Documents should read
D. Letter from the General CounseIFAD, to the Complainanfs Counsel.24
September 20 lO
27 January 20ll
Lawrence Christy
Member of the New York Bar
Counsel to Ms. Saez
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Written Comments of the complainant