International Court of Justice
________________________
Judgment No. 2867 of the
Administrative Tribunal of the
International Labour Organization upon
a Complaint against the International
Fund for Agricultural Development
(Request for an Advisory Opinion)
Written Statement of the International
Fund for Agricultural Development
29 October 2010 TABLE OF CONTENTS
General Part ........................................................................
..................................1
THE REQUEST........................................................................
.............................1
Chapter 1. INTRODUCTION........................................................................
............2
A. Nature of this case: A case raising issues of international institutional law
rather than involving a simple appeal from a ruling in an employment case..........2
B. Origin of the Request ........................................................................
...........4
C. The Terms of the Present Request..................................................................6
D. The Court’s Order of 29 April 2010................................................................8
E. Structure of the Fund’s Written Statement ......................................................9
Part One ........................................................................
................................1
QUESTIONS OF JURISDICTION AND PROPRIETY....................................................10
Chapter 2. THE COURT IS COMPETENT TO GIVE THE ADVISORY OPINION
REQUESTED........................................................................
...............11
A. The Conditions for a Request for an Advisory Opinion .....................................11
B. Jurisdiction ratione personae: The Request was made by a duly authorized
organization ........................................................................
.....................11
C. The requesting organization acted within its competence in adopting and
submitting the Request for an Advisory Opinion .............................................12
D. Jurisdiction ratione materiae: The questions on which the Court is asked to
give its Opinion are legal questions ..............................................................13
E. Conclusion........................................................................
........................22
Chapter 3. THERE ARE NO COMPELLING REASONS PREVENTING THE COURT FROM
GIVING THE REQUESTED OPINION........................................................22
A. The Court has sufficient information to give the requested Opinion ...................23
B. The requested Opinion will assist the Fund and the Tribunal in their
subsequent actions........................................................................
............26
C. Upholding the Fund’s challenge will not deprive the Complainant of her right of
redress ........................................................................
............................26
D. Providing the requested Opinion will not violate the principle of the equality of
parties........................................................................
.............................29
E. The Fund’s Request raises issues never before presented to or addressed by
the Court ........................................................................
.........................32
F. Conclusion........................................................................
........................33
Part Two ........................................................................
................................3
THE LAW – THE QUESTIONS IN THE REQUEST FOR AN ADVISORY OPINION ..............34
Chapter 4. QUESTION I........................................................................
...............35
A. Lack of jurisdiction ratione personae: The Complainant was not an official of
the Fund at the relevant time......................................................................35
B. Lack of jurisdiction ratione personae: The Global Mechanism and the
Conference of the Parties of the UNCCD are separate entities from the Fund......46
i C. Lack of jurisdiction ratione personae: The Global Mechanism and the
Conference of the Parties of the UNCCD have not recognized the jurisdiction of
the Tribunal........................................................................
......................63
D. Lack of jurisdiction ratione personae: The Global Mechanism and the
Conference of the Parties of the UNCCD have not been included in the Fund’s
recognition of the jurisdiction of the Tribunal .................................................69
E. The conduct complained of is outside the Tribunal’s jurisdiction and in any
event is not attributable to the Fund.............................................................70
1. The general rule of the attribution of conduct to international
organizations ........................................................................
.............70
2. The decision of the Managing Director of the Global Mechanism was not
an act carried out in the performance of one of the Fund’s functions ..........75
3. The Managing Director of the Global Mechanism is not an official of the
Fund........................................................................
.........................79
4. The Fund has neither acknowledged nor adopted the decision of the
Managing Director of the Global Mechanism as its own.............................85
F. Conclusion........................................................................
........................87
Chapter 5. QUESTION II........................................................................
..............87
A. Disregard of the absence of a dispute regarding separateness of the Fund and
the Global Mechanism ........................................................................
........89
1. The principle that only disputed issues are justiciable...............................89
2. The parties expressly agreed that there was no dispute regarding
separateness before the Tribunal ..........................................................89
B. Conclusion........................................................................
........................91
Chapter 6. QUESTION III ........................................................................
............92
A. Lack of jurisdiction ratione materiae; Disregard of the non ultra petita rule........92
1. The principle of non ultra petita partium.................................................92
2. The Tribunal acted ultra petita in making a general determination with
regard to all staff and all acts of the Global Mechanism in a situation
where neither were before the Tribunal..................................................94
B. Conclusion........................................................................
........................96
Chapter 7. QUESTION IV........................................................................
.............96
A. The Tribunal lacked jurisdiction to entertain the Complainant’s plea alleging an
excess of authority by the Managing Director of the Global Mechanism and/or
its decision to entertain this plea constituted a fundamental fault in the
procedure followed; Disregard of the non infra petita rule................................96
1. The principle of non infra petita ............................................................96
2. The Tribunal ruled infra petita in relation to the plea alleging an excess of
authority by the Managing Director of the Global Mechanism.....................97
B. Conclusion........................................................................
........................98
Chapter 8. QUESTION V........................................................................
..............98
A. The Indispensable Third Party Rule in international adjudication .......................99
B. The Tribunal lacked jurisdiction to entertain pleas of flaws in the decision-
making process of the Fund to the extent that such pleas involved an
examination of the decision-making process of absent third parties and/or its
decision to entertain these pleas constituted a fundamental fault in the
procedure followed ........................................................................
.......... 103
C. Conclusion........................................................................
...................... 106
ii Chapter 9. QUESTION VI........................................................................
........... 107
A. Lack of Jurisdiction ratione materiae: The Memorandum of Understanding
between the Conference of the Parties and the Fund is neither part of “the
terms of appointment of officials” nor of “the provisions of the Staff
Regulations” within the meaning of Article II(5) of the ILOAT Statute.............. 107
B. Conclusion........................................................................
...................... 116
Chapter 10. QUESTION VII........................................................................
.......... 116
A. The Tribunal failed to recognize that the Fund, per its President, acted as an
agent of the Conference of the Parties when it implemented the decision of the
Managing Director of the Global Mechanism, leaving the Tribunal without
jurisdiction ........................................................................
..................... 116
B. The requirement that the principal and the agent be separate legal entities ..... 120
C. The requirement of consent ...................................................................... 124
D. The revocable nature of the hosting arrangement......................................... 125
E. The requirement that the agent act on behalf of the principal......................... 127
F. Conclusion........................................................................
...................... 128
Chapter 11. QUESTION VIII........................................................................
......... 128
A. In deciding to substitute the discretionary decision of the Managing Director of
the Global Mechanism with its own, the Tribunal acted outside its jurisdiction
and such decision constituted a fundamental fault in the procedure followed.... 128
B. Conclusion........................................................................
...................... 133
Chapter 12. QUESTION IX........................................................................
........... 133
A. The Tribunal’s Judgment No. 2867 is invalid................................................ 133
B. Conclusion........................................................................
...................... 134
Part Three ........................................................................
.............................. 135
SUMMARY OF CONCLUSIONS AND REQUEST....................................................... 135
Chapter 13. SUMMARY OF CONCLUSIONS AND REQUEST......................................... 136
iii General Part
THE REQUEST
1 Chapter 1. INTRODUCTION
A. Nature of this case: A case raising i ssues of international institutional law
rather than involving a simple appeal from a ruling in an employment case
1. In 1988, the International Fund for Agricultural Development (“IFAD” or “Fund”),
which is a specialized agency of the United Nations, entered into an agreement
with another specialized agency, the International Labour Organization (“ILO”).
Under that agreement, an Administrative Tribunal (“Tribunal” or “ILOAT”), whose
statute was adopted by the International Labour Conference on 9 October 1946
(and amended by the Conference on 29 June 1949, 17 June 1986, 19 June 1992,
16 June 1998 and 11 June 2008) is to act as the administrative tribunal of the
Fund. In that capacity, the Tribunal is to abide by its Statute, in particular Article
II and the provisions and principles concerning the procedure for dealing with
cases submitted to it.
2. Under the aforementioned agreement, the Fund and the ILO also agreed that, in
the event that the Fund considers that the Tribunal has failed to adhere to the
foregoing terms, the Fund shall have the right to challenge the Tribunal’s decision
before the International Court of Justic e (“Court”) by means of the authority
conferred upon the Fund, in the agreement with the United Nations, to request
Advisory Opinions from the Court. The Fund and the ILO further agreed that both
parties shall accept the findings of the Court.
3. The reason why the Fund has submitted the present Request to the Court is
because it deems that the Tribunal, acting through its judges whom are appointed
for a period of three years by the Conference of the International Labour
Organization, caused the terms of the aforementioned agreement to be violated.
Through the Request addressed to the Court on 23 April 2010, the Fund seeks the
Court’s confirmation that Judgment No. 2867 is not in conformity with the 1988
agreement between the two specialized agencies and must be declared invalid on
the grounds set forth in this statement.
4. Accordingly, the present proceeding does not involve a simple appeal from a ruling
in an employment case such as the Court has had occasion to address in the
past. 1 In contrast to the Unesco Case, this case raises issues of fundamental
importance to the Fund, as well as the many international organizations serving as
housing organizations to other institutions or entities, and indeed all organizations
having accepted the Tribunal’s jurisdiction. As such, the outcome of this
proceeding will likely determine the future of institutional housing arrangements
1Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory
Opinion, I.C.J. Reports 1956, p. 77.
2 the world over. In particular, the present case raises the following questions
which the Court is asked to address for the first time:
(i) Can an international organization which houses an entity that is
separate from it incur liability for the employment decisions of the housed
entity?
(ii) What are the applicable criteria for attributing conduct of the housed
entity to the housing organization?
(iii) Based on the answers to the foregoing questions, how is one to delimit
the ILOAT’s jurisdiction in cases involving organizations housed by other
organizations and assess the Tribunal’s procedure followed in such cases?
5. These aspects elevate this proceeding above ordinary Article XII proceedings
involving only the employer-organization and its employee(s). It is the view of the
Fund that the Tribunal’s decision which it is challenging in this proceeding is
generally outside the limits imposed by law and by the instrument under which the
Tribunal operates, and more specifically, it is not in accord with contemporary law
concerning the responsibility of international organizations.
6. Against this background, the Fund’s Request is addressed against the following
decisions of the Tribunal confirming its jurisdiction and/or constituting fundamental
faults in the procedure followed by it:
a) To hear complaints of an individual who was, neither at the time of the complaint
introduced before the Tribunal, nor at any time before or thereafter, an official of
the Fund, but rather, an employee of a separate entity housed by the Fund
pursuant to an international agreement between that entity and the Fund;
b) To entertain pleas involving an examination of the decision-making by entities and
bodies belonging to an organization that has not recognized the jurisdiction of the
Tribunal and which therefore were not capable of being heard by the Tribunal;
c) To examine conduct and acts which according to international law are not
attributable to the Fund, but to bodies and officials belonging to an organization
that has not recognized the jurisdiction of the Tribunal and which therefore were
not capable of being examined by the Tribunal; and
d) To hear complaints which do not allege non-observance, in substance or in form,
of the terms of appointment of officials and of provisions of the Staff Regulations
of the Fund.
7. As the above summary makes clear, the Fund’s Request “has nothing to do with
the question whether the [Tribunal’s] decision [set forth in the dispositive
paragraph] is right or wrong: that is merits. It is concerned solely with the duty of
3 the tribunal to respect and maintain the limits imposed on its authority; the
rightness or wrongness of the decision being irrelevant considerations.” 2That
being said, the purpose of the Fund’s Request is to have Judgment No. 2867
declared invalid by the Court.
B. Origin of the Request
8. On 26 April 2010, the Fund submitted a Request for an Advisory Opinion to the
Court concerning a ruling by an administrative tribunal, the ILOAT, rendered
against the Fund upon a complaint by a staff member of an institution housed by
the Fund.
9. The Fund is one of the specialized agencies of the United Nations which have been
authorized by the General Assembly, on the basis of Article 96, paragraph 2, of
the Charter of the United Nations, to request Advisory Opinions of the Court on
legal questions arising within the scope of their activities and which have accepted
the jurisdiction of the Tribunal under its Statute, Article XII of which provides for
special recourse to the Court by way of a binding Opinion. The Fund avails itself of
Article XII in the present proceeding.
10. Ms. S.-G. (“Complainant”), a staff member of the Global Mechanism of the United
Nations Convention to Combat Desertification in Those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa (“Global Mechanism”),
held a fixed-term contract of employment which was due to expire on 15 March
2006.
11. When the Managing Director of the Global Mechanism did not renew her contract
upon the expiration of its fixed term, the Complainant made approaches to various
organs of IFAD, which houses the Global Mechanism at its headquarters in Rome
(Italy) pursuant to a special arrangement. In particular, she filed an appeal with
IFAD’s Joint Appeals Board challenging the Managing Director’s decision. The Joint
Appeals Board recommended in December 2007 that the Complainant be
reinstated within the Global Mechanism for a period of two years and be paid an
amount equivalent to all the salaries, allowances and entitlements she had lost
since March 2006. The President of IFAD rejected this recommendation in April
2008.
12. In view of the failure of this approach, the Complainant filed a complaint against
the Fund with the Tribunal on 8 July 2008. In her complaint, the Complainant
asked the Tribunal to order the Fund to reinstate her, for a minimum of two years,
2Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory
Opinion, Dissenting Opinion of Judge Read, I.C.J. Reports 1956, p. 77, at 143.
4 i herpiuspostihtheGlbalMecimoranequialntposiht
retroactive effect from 15 March 2006, and to grant her monetary compensation
equivalent to the losses suffered as a result of the non-renewal of her fixed-term
contract.
13. In its Judgment No. 2867 ( S.-G. v. IFAD), delivered on 3 February 2010, the
Tribunal, asserting jurisdiction under the terms of Article II of its Statute over the
Complainant’s entire complaint against IFAD, set aside the decision of the
President of IFAD. It also ordered the Fund to pay the Complainant damages
equivalent to the salary and other allowances she would have received if her
contract had been extended for two years from 16 March 2006, together with
moral damages in the amount of €10,000 an d costs in the amount of €5,000. In
the proceedings before the Tribunal, the Fund presented clear and convincing
evidence of the separateness of the Fund and the Global Mechanism in support of
its contention that the Tribunal was not competent to hear pleas B(1) 3and B(2) 4
comprising the core part of the complaint. 5 In a written pleading, the Complainant
expressly agreed that the Fund and the Global Mechanism are “[s]eparate legal
entities.”6 Notwithstanding this evidence and that record, the Tribunal supported
its exercise of jurisdiction over the entire complaint by stating 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
7
Mechanism are, in law, decisions of the Fund.”
14. If Judgment No. 2867 were allowed to st and, it would adversely affect the
development of the law concerning the responsibility of international organizations
and would have a chilling effect on the housing arrangements entered into by IFAD
and many intergovernmental organizations with other institutions and entities. As
3
In the section of the Complainant’s complaint entitled “Complainant’s Pleas,” the first heading under
“B. Merits” reads as follows: “(1) The Managing Di rector exceeded his authority in deciding not to
renew the complainant’s contract.”
4 In the section of the Complainant’s complaint entitled “Complainant’s Pleas,” the second heading
under “B. Merits” reads as follows: “(2) The appr oved core budget did no t require elimination of
complainant’s post.”
5
The proceedings before the ILOAT, and the objections which IFAD raised in the course of those
proceedings, centered on the first two pleas included in the complaint submitted to the Tribunal. The
complaint also included the following pleas whic h are, however, not at issue in the present
proceeding: “(3) IFAD did not exercise its duty of care towards the complainant;” “(4) IFAD did not
apply its own HRPM procedures to the complainant;” and “(5) The President failed to give reasons for
rejecting the Joint Appeals Board’s recommendations.”
6Complainant’s Rejoinder, heading to paragraph 5 (“5. The complainant has no reason to dispute the
separateness of IFAD and the Global Mechanism.”).
7ILOAT Judgment No. 2867, Consideration 7.
5 such, it could potentially endanger the very concept of such arrangements, for it
would confirm the Tribunal’s extra-statutory exercise of jurisdiction over a housing
organization and expose the housing organization to potential liability for the acts
of the housed entity even in situations, as in the present case, where all parties
involved agree that the housed entity is legally separate from the housing
organization.
C. The Terms of the Present Request
15. The Executive Board of the Fund, by a resolution adopted at its ninety-ninth
session on 22 April 2010, acting within the framework of Article XII of the Annex
of the Statute of the Tribunal, decided to challenge Judgment No. 2867 of the
Tribunal and to refer the question of the validity of that judgment to the Court.
16. Article XII of the ILOAT Statute reads as follows:
“1. In any case in which the Executive Board of an international
organization […] 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.
1. The opinion given by the Court shall be binding.”
17. The request was transmitted to the Court under cover of a letter dated 23 April
2010 from the President of IFAD’s Executive Board, which informed the Court that
the undersigned has been designated as the representative of the Fund for
purposes of the present proceedings.
18. The Fund’s request comprises the following nine questions:
“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 me mber 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
6 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 statem ent, 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 (h ereby 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
7 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?”
19. As the Court stated in its ruling in the only previous proceeding based on Article
XII of the ILOAT Statute, issued in 1956, an organization such as the Fund “has
the general power to ask for an Advisory Opinion of the Court on questions within
8
the scope of its activity.” While the present Request in no way detracts from the
Fund’s general power pursuant to Article 96, paragraph 2, of the United Nations
Charter to ask the same, or similar, questions decided upon by the Fund’s
Executive Board in a purely advisory proceeding, 9its right to request an Advisory
Opinion in this case is exercised specifically in satisfaction of the conditions laid
down in Article XII of the ILOAT Statute.
D. The Court’s Order of 29 April 2010
20. By letters dated 26 April 2010, the Registrar of the Court 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 Court’s Statute.
21. By an Order of 29 April 2010, the Court decided that:
“1. the Fund 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. fixed 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;
8
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 99.
9Art. 96, para. 2, of the United Nations Charter reads as follows: “Other organs of the United Nations
and specialized agencies, which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the scope of their activities.”
8 3. fixed 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. decided 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 fixed 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.
The subsequent procedure is reserved for further decision.”
E. Structure of the Fund’s Written Statement
22. The present statement is submitted on behalf of the Fund pursuant to paragraph 1
of the Court’s Order of 29 April 2010.
23. This Written Statement is structured as follows:
a. A General Part sets out the origin of the Request and its terms of
reference;
b. Part One addresses the questions of the jurisdiction of the Court and
the propriety of the exercise of such jurisdiction in the present case;
c. Part Two examines the legal considerations raised by the Request and
proposes answers to the questions set forth in the Request; and
d. Part Three contains a summary of conclusions and sets forth the
Fund’s Request.
9 Part One
QUESTIONS OF JURISDICTION AND PROPRIETY
10 Chapter 2. THE COURT IS COMPETENT TO GIVE THE ADVISORY OPINION
REQUESTED
A. The Conditions for a Request for an Advisory Opinion
24. According to the Court’s consistent jurisprudence, when seized of a request for an
Advisory Opinion, the Court must first consider whether it has jurisdiction to give
the Opinion requested, and should the answer be in the affirmative, whether there
is any reason why the Court, in its discretion, should decline to exercise any such
jurisdiction in the case before it.10 In Legality of Nuclear Weapons (Request of the
WHO) 11 the Court considered that, in view of Article 65, paragraph 1, of its
Statute and Article 96, paragraph 2, of the Charter of the United Nations, there
are three conditions which must be satisfied in order for the Court to have
jurisdiction when a request for an Advisory Opinion is submitted to it by a
specialized agency: the agency requesting the opinion must be duly authorized,
under the Charter of the United Nations, to request opinions from the Court; the
opinion requested must concern a legal question; and this question must be one
arising within the scope of the activities of the requesting agency. The sections
that follow assume that these conditions apply mutatis mutandis in Article XII
proceedings.
B. Jurisdiction ratione personae: The Request was made by a duly authorized
organization
25. As the Court stated in its 1956 Opinion issued in a proceeding arising under Article
XII of the ILOAT Statute, an authorized specialized agency of the United Nations
“has the general power to ask for an Advisory Opinion of the Court on questions
within the scope of its activity.” 12The Fund is a specialized agency of the United
Nations within the meaning of the relevant provisions of the Charter of the United
Nations. The Fund has a general right under Article 96, paragraph 2, 13 of the
10
Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, I.C.J. Reports 1996, p. 232,
para. 10; Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal ,
Advisory Opinion, I.C.J. Reports 1982, pp. 333-334, para. 21; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, I.C.J. Reports 2004, p.
144, para. 13); Accordance with international law of the unilateral declaration of independence in
respect of Kosovo , Advisory Opinion, para. 19 -24, text available online: http://www.icj-
cij.org/docket/files/141/15987.pdf
11
Legality of the Use by a State of Nuclear Weapons in Armed Conflict , Advisory Opinion, I .C.J.
Reports 1996, p. 66.
12
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 99.
13
Art. 96, para. 2, of the UN Charter reads as follows: “Other organs of the United Nations and
specialized agencies, which may at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising within the scope of their activities.”
11 United Nations Charter to request an Advisory Opinion of the Court on questions
within the scope of its activities. The power to formulate requests for Advisory
Opinions is conferred upon the Fund by Article XIII of the Agreement between the
United Nations and the International Fund for Agricultural Development of 6 April
1978.
26. The Resolution of the Fund’s Executive Board adopted at its ninety-ninth session
on 22 April 2010, by which the Executive Board requested an Advisory Opinion of
the Court, relies specifically on Article XII of the Statute of the Tribunal as cited in
the Resolution and as applicable to the Fund. The foregoing provision states that,
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 Court. The opinion given by the Court shall be binding. Paragraph
5 of Article II, to which reference is made in Article XII, determines that the
Tribunal shall also be competent to hear complaints alleging non-observance, in
substance or in form, of the terms of appointment of officials and of provisions of
the Staff Regulations of any other intergovernmental international organisation
approved by the Governing Body which has addressed to the Director-General a
declaration recognizing, in accordance with its Constitution or internal
administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its
Rules of Procedure. Furthermore, Article II, paragraph 7, of the Tribunal’s Statute
stipulates that any dispute as to the competence of the Tribunal shall be decided
by it, subject to the provisions of Article XII. The Fund has recognized the
jurisdiction of the Tribunal by making t he declaration provided for in Article II,
paragraph 5, of the Tribunal’s Statute.
C. The requesting organization acted within its com petence in adopting and
submitting the Request for an Advisory Opinion
27. The questions submitted to the Court by the Fund all arose within the scope of the
Fund’s activities with regard to its hosting of the Global Mechanism of the United
Nations Convention to Combat Desertification in Those Countries Experiencing
Serious Drought and/or Desertification (“Convention”), and in any event arise as
direct consequences of the Tribunal’s Judgment No. 2867. According to the
operative paragraph, or dispositif, of Judgment No. 2867 in the case betwee n a
former staff member of the Global Mechanism (“Complainant”) and the Fund:
“1. The President’s decision of 4 April 2008 is set aside.
12 2. IFAD shall pay the complainant material damages equivalent to the
salary and other allowances she would have received if her contract
had been extended for two years from 16 March 2006, together with
interest at the rate of 8 per cent per annum from due dates until the
date of payment. The complainant is to give credit for wages or salary
earned within that period.
3. IFAD shall pay the complainant moral damages in the sum of
10,000 euros.
4. It shall also pay her costs in the amount of 5,000 euros.
5. All other claims are dismissed.” 14
D. Jurisdiction ratione materiae: The questions on which the Court is asked
to give its Opinion are legal questions
28. It is also for the Court to satisfy itself that each question on which it is requested
to give its opinion is a “legal question” within the meaning of Article 96, paragraph
1, of the Charter and Article 65, paragraph 1, of the Court’s Statute. A question
which expressly asks the Court whether or not a particular action is compatible
with international law certainly appears to be a legal question; as the Court has
remarked on a previous occasion, questions “framed in terms of law and rais[ing]
problems of international law . . . are by their very nature susceptible of a reply
15
based on law” and therefore appear to be questions of a legal character for the
16
purposes of Article 96 of the Charter and Article 65 of the Statute. As explained
below, the Opinion requested in the present case relates in each instance to a
“legal question” within the meaning of the aforementioned provisions.
29. The Fund grounds its request for a binding Advisory Opinion of the Court on Article
XII of the ILOAT Statute. The Fund submits that ILOAT Judgment No. 2867 must
be declared invalid by the Court because:
a) the Tribunal was not competent to entertain pleas B(1) and B(2) set
forth in the complaint submitted to it, in other words the Tribunal was
14
ILOAT Judgment No. 2867, p. 18.
15Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15
16 Cf. Accordance with international law of the unilateral declaration of independence in respect of
Kosovo, Advisory Opinion, para. 25, text available online: http://www.icj-
cij.org/docket/files/141/15987.pdf
13 not “legally qualified to examine the complaints submitted to it and to
17
adjudicate on the merits of the claims set out therein;” and/or
b) the Tribunal’s decision to entertain the complaint in its entirety,
including pleas B(1) and B(2) thereof, constituted fundamental faults
in the procedure followed by the Tribunal.
30. It will be recalled that Judge Moore of the Permanent Court of International Justice
pointed out in Mavromatis Palestine Concessions that:
“[T]here are certain elementary conceptions common to all systems of
jurisprudence, and one of these is the principle that a court of justice is
never justified in hearing and adjudging the merits of a cause of which it
has no jurisdiction ….The requirement of jurisdiction, which is universally
recognized in the national sphere, is not less fundamental and peremptory
in the international.” 18
31. With the foregoing in mind, in the proceedings underlying the Tribunal’s Judgment
No. 2867, the Fund raised four principal objections to the competence and
jurisdiction of the Tribunal:
a) First, that the Fund and the Glob al Mechanism are separate legal
entities and that the Fund’s acceptance of the Tribunal’s jurisdiction
is limited to the Fund proper; 19
b) Second, that the Tribunal may not entertain pleas alleging flaws in
the decision-making process of the Global Mechanism;
c) Third, that the Tribunal may not entertain pleas alleging flaws in the
decision-making process of the Fund if it entails examining the
decision-making process of the Global Mechanism; and
d) Fourth, that acts of the Managing Director of the Global Mechanism
are not attributable to the Fund.
17 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 84.
18Mavrommatis Palestine Concessions (1924), Dissenting Opinion of Judge Moore, PCIJ Ser. A, No. 2,
p. 54, at 57-58, 60.
19The Tribunal correctly observed that “[t]he argument with respect to the Tribunal’s jurisdiction is
based, in the main, on the proposition that ‘[t]he Fund and the Global Mechanism are separate legal
identities’” (Emphasis added). ILOAT Judgment No. 2867, Consideration 5.
14 32. In deciding to confirm its jurisdiction and to entertain all the pleas set forth in the
Complainant’s complaint, the Tribunal rejected the aforementioned jurisdictional
objections in the following ways:
• With regard to the Fund’s first objection, despite acknowledging that
the Global Mechanism is an integral part of the Convention and is
accountable to the Conference of the Parties of the UNCCD, the
Tribunal ruled that this does not necessitate the conclusion that the
Global Mechanism has its own legal identity. On that basis, it decided
that the Global Mechanism is to be assimilated to the various
administrative units of the Fund for all administrative purposes and
considered generally 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. 20
• With regard to the other three objections raised by the Fund, the
Tribunal ruled that because decisions of the Managing Director relating
to staff in the Global Mechanism are, in law, decisions of the Fund,
21
these objections also must be rejected.
33. In submitting its Request for an Opinion, the Fund’s Executive Board is seeking a
clarification of the legal aspects of a matter with which the Fund is dealing in the
aftermath, and as a direct co nsequence, of Judgment No. 2867. 22 The questions
set forth in the Request relate to the general issue of the interpretation of the
Statute of the Tribunal, in particular the question of the Tribunal’s competence
over complaints made against the Fund by staff members of institutions housed by
the Fund, where such complaints do not invoke the grounds laid down in the
Tribunal’s Statute and the Tribunal adjudicates such complaints exclusively by
reference to internationals instruments. The questions set forth in this request also
relate to the decisions made by an entity which does not fall within the Tribunal’s
jurisdiction, and the application of the general rules for the attribution of conduct
to international organizations for the purpose of determining international
responsibility on the part of a housing organization for acts taken by an entity
housed by it.
34. There is no question that, as an international tribunal, the Tribunal possesses la
compétence de la compétence. This is a power that has been recognized by the
20
ILOAT Judgment No. 2867, Considerations 6-7.
21Ibid., Consideration 8.
22
Cf. Judgments of the Administrative Tribunal of the ILO upon Complaints made against the Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 84.
15 Permanent Court of International Justice (PCIJ), 23 and the Court itself has stated
in this regard that “an international tribunal has the right to decide as to its own
jurisdiction and has the power to interpret for this purpose the instruments which
govern that jurisdiction.” 24 However, unlike the Court, the Tribunal does not have
the final word on the question of determining its jurisdiction.
35. In reference to the concept of “jurisdiction,” it must be asked: jurisdiction to do
25
what? In answering this question, four rele vant elements of jurisdiction can be
identified:
• Personal jurisdiction refers to an international court or tribunal’s power
over a particular actor ( in personam jurisdiction or jurisdiction ratione
personae). If an international court or tribunal does not have personal
jurisdiction over an actor, then the court cannot bind the actor to an
obligation or adjudicate any act allegedly performed by such actor;
• Subject-matter jurisdiction or jurisdiction ratione materiae, referring to
the particular types of claims and proceedings that may be brought
before an international court or tribunal under the document from
which it derives jurisdiction (in other words, jurisdiction over claims);
• Applicable law, meaning the law that an international court or tribunal
may interpret and apply; and
• Inherent jurisdiction, referring to an international court or tribunal’s
intrinsic powers, derived from its nature as a judicial body.
36. In other words, there are inherent limitations to the exercise of the judicial
function, which international courts or tribunals, as entities of justice, cannot
26
ignore. Thus, if an international court or tribunal is satisfied, whatever the
nature of the relief claimed, that to adjudicate the merits of an application or
complaint would be inconsistent with its judicial function as defined by the relevant
27
rules, it should refuse to do so. Jurisdictional clauses must be interpreted, like
23
See, e.g., Interpretation of Greco–Turkish Agreement (Greece v. Turkey) , P.C.I.J. , Ser. B, No. 16,
at 20 (7 June 1928).
24
Nottebohm (Liechtenstein. v. Guatemala), Judgment, I.C.J. Reports 1953, p. 111, at 119.
25H. Thirlway, “The Law and Procedure of the International Court of Justice 1960–89: Part Nine,”
British Year Book of International Law (1998), 1, 6.
26Compare, Northern Cameroons (Cameroon v. U.K.) , I.C.J. Reports 1963, p. 15, 29 (2 Dec. 1963);
see also id. at 64 (Sep. Op. of Judge Wellington Koo); id. at 100–01 (Sep. Op. of Judge Fitzmaurice).
27Id. at 37.
16 any other international legal instrument, in accordance with their ordinary and
genuine meaning. 28
37. The foregoing applies to international courts or tribunals possessing general
jurisdiction (jurisdiction de droit commun) , and a fortiori, to those of limited
jurisdiction (jurisdiction d'attribution).
38. International administrative tribunals are tribunals of limited jurisdiction and not of
29
general jurisdiction, as was recognized by the Court specifically in relation to the
Tribunal: “The Court recognizes that the Administrative Tribunal is a Tribunal of
30
limited jurisdiction.” Consequently, the Tribunal has jurisdictional competence
only to the extent that its Statute grants it power to decide disputes. The scope of
its jurisdictional competence, both ratione personae and ratione materiae , is
defined by Article II of the Tribunal’s Statute and the limitations imposed by it
restrict the exercise of jurisdiction in any given case.
39. Under Article XII of the Statute of the Trib unal, the Opinion thus requested will be
“binding.” In other words, the requested Opinion is relevant for the determination
of the international responsibility of the Fund vis-à-vis the Complainant and
potentially future complainants situated in a similar position as the Complainant.
40. In light of the foregoing, the Fund invites the Court to take note of the fact that at
the outset of the proceedings, the Fund notified the Tribunal that any decision
confirming its jurisdiction would trigger the situation envisaged by Article XII of
31
the Tribunal . In making this notification, the Fund sought to inform the Tribunal
of the importance that the Fund attaches to this matter in light of its practice of
hosting bodies of other entities. The Fund deemed it advisable that the Tribunal be
32
on notice that its decision would be challenged, if necessary, on two grounds:
(1) by challenging a decision of the Tribunal confirming its jurisdiction; and (2) by
challenging that a decision of the Tribunal is vitiated by a fundamental fault in the
procedure followed (in short, procedural fault). In the words of the Court:
28 Cf. A. Orakhelashivili, The Interpretation of Acts and Rules in Public International Law (Oxford
University Press, 2008), p. 441.
29See in the same sense IMF Administrative Tribunal, Judgment No. 1999-I ( Mr. “A” v. IMF ), 12
August 1999, para. 56.
30 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 97.
31Reply of the Fund, para. 30.
32
Ibid., p. 100 (“Article XII authorizes the Executive Board to challenge those judgments, but only on
the ground of lack of jurisdiction or of a fundamental fault in the procedure followed.”).
17 “Article XII of the Statute of the Administrative Tribunal provides for a
Request for an Advisory Opinion of the Court in two clearly defined
cases. The first is where the Executive Board challenges a decision of
the Tribunal confirming its jurisdiction; the second is when the
Executive Board considers that a decision of the Tribunal is vitiated by
a fundamental fault in the procedure followed. The Request for an
Advisory Opinion under Article XII is not in the nature of an appeal on
the merits of the judgment. It is li mited to a challenge of the decision
of the Tribunal confirming its jurisdiction or to cases of fundamental
fault of procedure. Apart from this, there is no remedy against the
decisions of the Administrative Tribunal. A challenge of a decision
confirming jurisdiction cannot properly be transformed into a
procedure against the manner in which jurisdiction has been exercised
or against the substance of the decision. 33
41. The Court’s case law underscores that any question submitted to the Court must
refer to one of those grounds, lest it decide that “it cannot be considered by the
34
Court.” All of the questions included in the Fund’s Request comply with this
requirement and must, therefore, be consider ed by the Court. In this context, the
Fund recognizes that the Court has stated as follows with regard to the character
of judgments rendered by the Tribunal:
“Under Article VI of the Statute of the [ILO] Administrative Tribunal,
its judgments ‘shall be final and without appeal’. However, Article
XII authorizes the Executive Board [of an intergovernmental
international organization having accepted the Tribunal’s
jurisdiction] to challenge those judgments, but only on the ground of
lack of jurisdiction or of fundamental fault in the procedure followed.
In case of such a challenge, it is for the Court to pass, by means of
an Opinion having binding force, upon the challenge thus raised and,
consequently, upon the validity of the judgment challenged.” 35
33
Ibid., p. 98.
34Ibid., p. 99. In the Unesco Case, the ICJ found the following questions to be outside the orbit of
Article XII: “( a) Was the Administrative Tribunal competent to determine whether the power of the
Director-General not to renew fixed-term appointmen ts has been exercised for the good of the service
and in the interest of the Organization?” and “( b) Was the Administrative Tribunal competent to
pronounce on the attitude which the Director-General, under the terms of the Constitution of the
United Nations Educational, Scientific and Cultural Organization, ought to maintain in his relations
with a Member State, particularly as regards the execution of the policy of the Government
authorities of that Member State?” Ibid.
35Ibid.
18 42. Article XII has been described in the literature as “allowing for what is virtually a
limited right of appeal … by means of a request for an advisory opinion from the
I.C.J.,”36 At the same time, it must be kept in mind that:
“what is involved is not a regular appeal. Such appeals were
contemplated by the delegation of Venezuela at the San Francisco
Conference and would have necessitated an appropriate modification
of Article 34 of the [ICJ] Statute which was formulated by that
delegation in the following terms: ‘As a Court of Appeal, the Court
will have jurisdiction to take cognizance over such cases as are tried
under original jurisdiction by international administrative tribunals
dependent upon the United Nations when the appeal would be
provided in the Statute of such tribunals.’ This proposal was
defeated. (Doc. 284, IV/1/24).” 37
43. It also has been explained in the literature that “the scope of review is very
limited” 38 in this type of case. The Court itself has observed that the:
“[d]istinction between jurisdiction and merits is of great importance
in the legal regime [of the ILO] Administrative Tribunal. Any
mitakeswihi maymakewtihregardisjiiinare
capable of being corrected by the Court on a Request for an
Advisory Opinion emanating from the Executive Board. Errors of fact
or of law on the part of the Administrative Tribunal in its Judgments
on the merits cannot give rise to that procedure. The only provision
which refers to its decisions on the merits is Article VI of the Statute
of the Tribunal which provides that its judgments shall be ‘final and
without appeal.’” 39
44. In other words, “in the case of Article XII of the Statute of the Administrative
Tribunal, the Tribunal’s decision is subject to examination by the Court only with
regard to the question of jurisdiction; the Court has no power of review with
36 th
P. Sands and P. Klein, Bowett’s Law of International Institutions, 5 ed. (London: Sweet & Maxwell,
2001), p. 427. Indeed, the Court has observed with regard to Article XII that “[t]he advisory
procedure thus brought into being appears as serving, in a way, the object of an appeal against the”
ILOAT’s judgment. Judgments of the Administrative Tribun al of the ILO upon Complaints Made
against the Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 77, 84.
37
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the Unesco ,
Advisory Opinion, Separate Opinion of Judge Winiarski, I.C.J. Reports 1956, p. 77, at 107.
38C.F. Amerasinghe, Principles of the Institutional Law of International Organizations , 2 nded.
(Cambridge University Press, 2005), p. 503.
39 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 87 (emphasis added).
19 regard to the merits, the Tribunal’s judgments, so far as they are concerned, being
40
final and without appeal.” The “question of the validity of the decision” given by
the Tribunal “must … be restricted to those aspects of validity or invalidity which
41
result from the competence or incompetence of the Tribunal.”
45. As explained in the Dissenting Opinion of Judge Badawi in the Unesco Case, 42it is
obvious that to enable the Executive Board of an organization which has accepted
the ILOAT’s jurisdiction to challenge a decision of the Tribunal confirming its
jurisdiction and to request an Advisory Opinion as provided for in Article XII of the
ILOAT Statute, the grounds on which the Tribunal bases its jurisdiction must,
independently of the merits, be in themselves sufficient to establish the precise
legal basis of its jurisdiction. It would indeed be inconceivable for the Tribunal to
be able to declare itself competent on the basis of reasons not subject to legal
evaluation. However, it is sometimes the case that jurisdiction can only be
established by reasons which are inextricably linked to the merits. In such a case,
a court or tribunal often orders the joinder of the jurisdictional objection and the
merits with a view to dealing with them together, and it will first give its decision
on the issue of jurisdiction before deciding on the merits. Such joinder facilitates a
better ordering of the judgment and is conducive to greater clarity. Dealing with
the issue of jurisdiction and the merits separately also ensures the avoidance of
repetitions which are inevitable in the statement of the reasoning underlying the
decision.
46. In the case of Article XII of the ILOAT Statute, the Tribunal’s decision is subject to
examination by the Court only with regard to the question of jurisdiction; the
Court has no power of review with regard to the merits, the Tribunal’s judgments,
so far as they are concerned, being final and without appeal.
47. In order, however, to exercise its power of review over the jurisdiction of the
Tribunal, the Court must necessarily base its review and resulting Opinion on the
Tribunal’s interpretation and application of the provisions of its Statute. Where an
objection to the Tribunal’s jurisdiction is joined to the merits, the Court will look
for this interpretation and application in the reasoning as a whole. But where the
Tribunal deals with the two questions of jurisdiction and merits separately, the
40 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of Vice-President Badawi, I.C.J. Reports 1956, p. 77, at 124
(emphasis added).
41
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of Judge Read, I.C.J. Reports 1956, p. 77, at 144 (emphasis
added).
42 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco,
Advisory Opinion, Dissenting Opinion of Judge Badawi, I.C.J. Reports 1956, p. 77, at 123, 124-125;
the text above is essentially taken from that Dissenting Opinion.
20 Court will confine its examination to the reasoning on which the Tribunal has
based its conclusion that it has jurisdiction, even if that conclusion is not made a
part of the dispositif. If, however, the Tribunal, while not ordering the joinder of
the jurisdictional objection and the merits, fails to observe the necessary
distinction between the two questions in its Judgment, the Court is bound to
examine the Tribunal’s judgment in its entirety.
48. In the present case, no joinder was ordered by the Tribunal, but the Tribunal,
while not deciding on that course, in fact bundled together its treatment of the two
separate questions of jurisdiction and merits. No part of Judgment No. 2867 is
specifically devoted to jurisdiction. While the Tribunal’s treatment of the issue of
jurisdiction is discernable to some extent in Considerations 6 and 7 of Judgment
No. 2867, the dispositif of Judgment No. 2867 contains no specific rulings
regarding the issue of jurisdiction. One is, therefore, compelled to examine the
entire Judgment in order to obtain a clearer indication of the Tribunal’s
pronouncements regarding its jurisdiction over the complaint introduced against
the Fund.
49. What is beyond any doubt is that the Tribunal understood the objections which the
Fund raised before it as pertaining to the jurisdiction of the Tribunal. In the very
first Consideration of Judgment No. 2867, the Tribunal states: “A preliminary
question arises as to the extent to which the Tribunal may review that earlier
decision [i.e., the decision of the Managing Director of the Global Mechanism not
to renew the Complainant’s fixed-term contract]. The arguments [of the Fund] go
to the powers and jurisdiction of the Tribunal […].” This statement and the
Tribunal’s subsequent considerations regarding the Fund’s arguments make clear
that the Fund’s arguments relating to the central question of the separateness of
the Fund and the Global Mechanism, and the Tribunal’s decisions regarding those
arguments embedded in Judgment No. 2867, fall squarely within the scope of
Article XII of the ILOAT Statute.
50. While being mindful of the fact that this proceeding represents only the second
time in the Court’s history that an organization having accepted the ILOAT’s
jurisdiction has made use of the authorization granted in Article XII of the ILOAT
Statute; it is against the aforementioned background that the Fund’s Executive
Board has carefully reviewed the decisions of the Tribunal in Judgment No. 2867
and has carefully examined the measures to be taken as a result of that Judgment
before articulating the questions on which it requests the Court’s binding Opinion.
The answers given to these questions will a ffect the result of the challenge raised
43
by the Fund’s Executive Board with regard to Judgment No. 2867. In this
43Cf. Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 84.
21 context, the Fund wishes to point out that the first and last questions put by the
Fund in this case are similar to the ones which led the Court to give the Opinion in
1956 in the case concerning Judgments of the Administrative Tribunal of the ILO
44
upon Complaints made against Unesco.
E. Conclusion
51. For the reasons set out above, the Fund submits that its Request for an Advisory
Opinion satisfies all the jurisdictional conditions pertaining to a valid request.
Chapter 3. THERE ARE NO COMPELLING REASONS PREVENTING THE COURT
FROM GIVING THE REQUESTED OPINION
52. The Fund acknowledges that the fact that the Court has jurisdiction in relation to a
request for an Advisory Opinion does not mean that it is obliged to exercise it in
each case. The Court has repeatedly recalled in the past that Article 65, paragraph
1, of its Statute, which provides that “[t]he Court may give an advisory opinion .. ”
(emphasis added), should be interpreted to mean that the Court “has discretionary
power to decline to give an advisory opinion even if the conditions of jurisdiction
45
are met.” The discretion whether or not to respond to a request for an Advisory
Opinion exists so as to protect the integrity of the Court’s judicial function and its
46
nature as the principal judicial organ of the United Nations. At the same time,
the Court has underscored that it is mindful of the fact that its reply to a request
for an Advisory Opinion “represents its participation in the activities of the
Organization, and, in principle, should not be refused.” 47 Accordingly, the Court
44 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77 (“I. Was the Administrative Tr ibunal competent, under
Article II of its Statute, to hear the complaints introduced against Unesco on 5 February 1955 by
Messrs. Duberg and Leff and Mrs. Wilcox, and on 28 June 1955 by Mrs. Bernstein?”; “III. In any
case, what is the validity of the decisions given by the Administrative Tribunal in its Judgments Nos.
17, 18, 19 and 21?”).
45 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory
Opinion, I.C.J. Reports 2004, p. 156, para. 44.
46Status of Eastern Carelia , Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 29; Application for
Review of Judgement No. 158 of the United Nations Administrative Tribunal , Advisory Opinion, I.C.J.
Reports 1973, p. 175, para. 24; Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 334, para. 22; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, I.C.J. Reports
2004, pp. 156-157, paras. 44-45; Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, para. 29, text available online: http://www.icj-
cij.org/docket/files/141/15987.pdf
47 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania , First Phase, Advisory
Opinion, I.C.J. Reports 1950, p. 71; Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commis sion on Human Rights , Advisory Opinion, I.C.J. Reports 1999, pp. 78-79,
para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ,
Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44.
22 has consistently held that only “compelling reasons” would justify the Court’s
48
refusal to give its opinion in response to a request falling within its jurisdiction.
53. Despite frequent requests by States, since 1949, that it should not on a particular
matter give an Advisory Opinion for reasons of judicial propriety, the present Court
has never declined to give a requested Ad visory Opinion through an exercise of
discretion. With reference to the present Request, there would appear to be no
reason, and certainly no compelling ones, for the Court to decline to play the role
foreseen for it in the United Nations Charter, its own Statute, and the ILOAT
Statute. Indeed, in the only previous proceeding based on Article XII of the ILOAT
Statute, involving a request made by Unesco, the Court saw no reason to decline
to give its Opinion in relation to a request which contained wording very similar to
the Fund’s request in the present case.
A. The Court has sufficient information to give the requested Opinion
54. The facts upon which the Court can rely in responding to the Fund’s Request are
well-documented. In order to ensure that the Court has sufficient information at
its disposal in order for it to give the requested Advisory Opinion, the Fund has
transmitted to the Court a file (dossier) containing the documents likely to throw
light upon the questions which have been submitted to the Court for an Advisory
Opinion through a resolution adopted by the Fund’s Executive Board on 22 April
2010. These documents are certified in each case to be either official records or
true copies thereof, or true copies of the documents submitted to the Tribunal.
They were transmitted to the Court by the Fund in accordance with Article 65 of
the Court’s Statute.
55. Each document is identified by title and, where applicable, official symbol of the
Fund, of the United Nations, or of the International Labour Organization. In
addition, all documents have, for ease of reference, been numbered consecutively
in the order in which they appear in the documentation.
56. This documentation consists of the following ten sections:
48
See, e.g., Interpretation of Peace Treaties , Advisory Opinion, I.C.J. Reports 1950, p. 65, at 71;
Reservations to the Convention on Genocide , Advisory Opinion, I.C.J. Reports 1951, p. 15, at 19;
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco , Advisory
Opinion, I.C.J. Reports 1956, p. 86; Certain Expenses of the United Nations (Article 17, paragraph 2,
of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 151, at 155; Legal Consequences for States
of the Continued Presence of South Africa in Nami bia (South West Africa) notwithstanding Security
Council Resolution 276 (1970) , Advisory Opinion, I.C.J. Reports 1971, p. 16, at 41; Legal
Consequences of the Construction of a Wa ll in the Occupied Palestinian Territory , Advisory Opinion,
I.C.J. Reports 2004, p. 156, para. 44;Accordance with international law of the unilateral declaration
of independence in respect of Kosovo, Advisory Opinion, para. 30, text available online:
http://www.icj-cij.org/docket/files/141/15987.pdf
23 I. The Agreement Establishing IFAD;
II. Records relating to the recognition by IFAD of the jurisdiction of the
Administrative Tribunal of the International Labour Organization over
disputes between IFAD and its staff;
III. Statute of the Administrative Tribunal of the International Labour
Organization;
IV. United Nations Convention to Combat Desertification in Countries
Experiencing Serious Drought and/or desertification, Particularly in
Africa (UNCCD);
V. Records relating to the housing arrangements convened by the
Conference of the Parties of the UNCCD and the Fund regarding the
hosting of the Global Mechanism by IFAD;
VI. IFAD personnel policies;
VII. Dossier of the In re S-.G. case before the Administrative Tribunal of
the International Labour Organization;
VIII. Judgment No. 2867 rendered by the Administrative Tribunal of the
International Labour Organization;
IX. Agreement between the United Nations and IFAD;
X. Resolution on the request by the Executive Board of IFAD to the
International Court of Justice for an advisory opinion with respect to
Judgment No. 2867 of the Administrati ve Tribunal of the International
Labour Organization and ensuing correspondence.
57. Section I contains the text of the Agreement Establishing IFAD in force prior to the
In re S.-G. case before the ILOAT.
58. Section II of the dossier contains official records bearing on the recognition by the
Fund of the competence of the Administrati ve Tribunal of the International Labour
Organization. This section contains: (1) a declaration by the President of the Fund,
affirming the IFAD Executive Board’s decision to recognize the jurisdiction of the
Administrative Tribunal of the International Labour Organization over disputes
between IFAD and its staff; (2) a declaration by the Director-General of the
International Labour Office affirming the Governing Council of the International
Labour Office’s approval of the Fund’s decision to recognize the jurisdiction of the
Administrative Tribunal; and (3) Resolution EB/35/R.78 of the Executive Board of
IFAD dealing with the recognition of the Jurisdiction of the Administrative Tribunal
of the International Labour Organization.
59. Section III of the dossier contains the Statute of the Administrative Tribunal of the
International Labour Organization, adopted by the International Labour Conference
24 on 9 October 1946 and amended by the Conference on 29 June 1949, 17 June
1986, 19 June 1992, 16 June 1998 and 11 June 2008.
60. Section IV of the dossier holds the text of the United Nations Convention to
Combat Desertification in Countries Experiencing Serious Drought and/or
desertification, Particularly in Africa.
61. Section V of the dossier comprises the documents relating to the housing
arrangements of the Global Mechanism by IFAD. This section includes: (4)
Decision 24/COP.1 of the Conference of th e Parties of the UNCCD with respect to
“Organization to house the Global Mechanism and agreements on its modalities”;
(5) Decision 10/COP.3 of the Conference of the Parties of the UNCCD entitled
“Memorandum of Understanding between the Conference of Parties of the United
Nations Convention to Combat Desertification and the International Fund for
Agricultural Development Regarding the Modalities and Administrative Operations
of the Global Mechanism”; (6) Resolution 108/XXI of the Governing Council of the
Fund entitled “Housing the Global Mechanism”; (7) IFAD President’s Bulletin
PB/99/10 regarding the Accounts of the Global Mechanism; (8) IFAD President’s
Bulletin PB/2004/01 regarding the Global Mechanism; and (9) the Position
Description of the Managing Director of the Global Mechanism.
62. Section VI of the dossier incorporates the Fund’s relevant personnel policies,
including: (10) Resolution EB 88/33/R.19 of the Executive Board of the Fund
entitled “Personnel Matters” and (11) IFAD’s Human Resources Policy, as they
were in force prior to the In re S.-G. case, enclosed in Resolution EB
2004/82/R.28/Rev.1 of the Executive Board entitled: “Human Resources Policy”.
63. Section VII of the dossier contains the written submissions of the In re S.-G. case,
as they were submitted to the Administrative Tribunal of the International Labour
Organization, including: (12) the Complainant’s Brief; (13) the Reply of the
Defendant; (14) the Complainant’s Rejoinder; and (15) the Surrejoinder of the
Defendant.
64. Section VIII of the dossier gives the text of Judgment No. 2867 rendered by the
th
Administrative Tribunal of the International Labour Organization at its 108
Session, on 3 February 2010, In re S.-G.
65. Section IX of the dossier contains the Agreement between the United Nations and
the Fund reproducing the text of the Article dealing with the relations of IFAD with
the International Court of Justice.
66. Finally, Section X of the dossier contains the following documents: (16) Resolution
EB 2010/99/R.43 of the Executive Board of IFAD, adopted at its 99 thSession,
which concerns the request to the International Court of Justice for an advisory
25 opinion with respect to Judgment No. 2867 of the Administrative Tribunal of the
International Labour Organization; and (17) a letter dated 5 May 2010 by the
General Counsel of the Fund addressed to the Counsel for the Complainant
notifying the request for an advisory opinion to the International Court of Justice.
67. The Fund believes that the information contained in the dossier, combined with the
observations made in the present Written Statement, and if necessary, any
additional information to be provided at an oral hearing, should the Court so
decide, provides the Court with sufficient information in order for it to give the
requested Advisory Opinion.
B. The requested Opinion will assist the Fund and the Tribunal in their
subsequent actions
68. Under Article XII of the Statute of the Administrative Tribunal, the Opinion
requested in this case will be “binding.” The Judgment challenged in the request
for an Advisory Opinion is, under Article VI, paragraph 1, of the Statute of the
Tribunal, “final and without appeal.” However, Article XII, paragraph 1, of the
Statute, in so far as it was relied upon by the Fund, confers upon its Executive
Board the right to challenge “a decision of the Tribunal confirming its jurisdiction”
and to seek redress against a judgment that is vitiated by a fundamental fault in
the procedure followed, and it provides that the Executive Board shall submit its
challenge to the Court by means of a request for an Advisory Opinion. The
Executive Board has availed itself of that right by instituting the present
proceeding before the Court. The proceeding thus brought into being will serve, in
a way, the object of an appeal against the Tribunal’s Judgment, seeing that the
Court is expressly invited to pronounce, in its Advisory Opinion that will be
“binding,” upon the validity of the Tribunal’s Judgment.
69. The Court’s Opinion will assist the Fund and the Tribunal in their further dealings
with the dispute that arose with regard to the non-renewal of a fixed-term contract
by an institution that is hosted by the Fund and the measures to be taken as a
result of Judgment No. 2867, as well as with similar disputes that the Fund and
the Tribunal might face in the future, especially if Judgment No. 2867 is not
declared invalid.
C. Upholding the Fund’s challenge will not deprive the Complainant of her
right of redress
70. The Fund wishes to point out that if the Court should consider the request for an
Advisory Opinion in the present case and rule as requested by the Fund, such
outcome would not mean that the Complainant would automatically be deprived of
any procedural and substantive remedy against the Global Mechanism, casu quo
the Conference of the Parties.
26 71. It is true that international organizations regularly enjoy immunity from suit in
employment-related cases. Instead of litigating their disputes before various
national courts, staff members of international organizations are expected to bring
their complaints before internal grievance mechanisms and ultimately before
administrative tribunals set up by the organization to which they belong. The
scope of jurisdiction of such administrative tribunals largely covers the kind of staff
disputes that are insulated from national court scrutiny as a result of the immunity
from legal process enjoyed by international organizations.
72. The jurisdiction of administrative tribunals is usually seen as complementary to the
immunity enjoyed by the respondent international organization. Because an
international organization enjoys immunity in connection with disputes brought by
private parties, including staff members, the organization must provide an
alternative judicial or quasi-judicial recourse to justice. Thus, international
organizations establish administrative tribunals or submit to the jurisdiction of
existing administrative tribunals. This correlation is usually regarded as the
consequence of the policy goal of providing staff members with access to a legal
remedy in order to pursue their employment-related rights. But it is increasingly
also seen as a legal requirement stemming from treaty obligations incumbent
upon international organizations, as well as a result of human rights obligations
involving access to justice (e.g. Article 6 of the European Convention on Human
Rights and Fundamental Freedoms). These treaty obligations are premised on the
well-recognized right, which as confirmed in the Ambatielos Case entails that “[…]
the foreigner shall enjoy full freedom to appear before the courts for the protection
or defence of his rights, whether as plaintiff or defendant; to bring any action
provided or authorised by law; to deliver any pleading by way of defence, set off
or counterclaim; to engage Counsel; to adduce evidence, whether documentary or
oral or of any other kind; to apply for bail; to lodge appeals and, in short, to use
the Courts fully and to avail himself of any procedural remedies or guarantees
provided by the law of the land in order that justice may be administered on a
footing of equality with nationals of country.” 49
73. Nowadays regarded as a fundamental right that applies to all, and not being
merely an international minimum standard for the treatment of aliens, the right of
recourse is enforceable against international organizations as well. The policy
consideration that an international organization should make provision for the
orderly, judicial or quasi-judicial settlement of staff disputes was already clearly
expressed in the Court’s Advisory Opinion in the Effect of Awards Case, 50 in
49Ambatielos Case (Greece v. United Kingdom), 6 March 1956, UNRIAA 83.
50
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal , Advisory
Opinion, I.C.J. Reports 1954, p. 47.
27 which it upheld the legality of the creation of the United Nations Administrative
Tribunal (UNAT). The Court stated in respect of the United Nations that it would
“hardly be consistent with the expresse d aim of the Charter to promote freedom
and justice for individuals […] that [the United Nations] should afford no judicial or
arbitral remedy to its own staff for the settlement of any disputes which may arise
between it and them.” 51
74. Ever since the Court made this pronouncem ent, the articulation of the underlying
principle evolved significantly and, inspired by the case law of the European Court
52
of Human Rights, in particular its 1999 Waite and Kennedy Judgment,
according to which the jurisdictional immunity of international organizations may
depend upon the availability of “reasonable alternative means” to effectively
protect the rights of staff members, more and more national courts are equally
looking at the availability and adequacy of alternative dispute settlement
mechanisms. Some of them have even conc luded that the non-availability of legal
protection through an administrative tribunal, or the inadequacy of the level of
protection afforded by internal mechanisms, justifies a withdrawal of immunity in
order to avoid a denial of justice contrary to human rights demands.
75. Against this background the question may be posed whether the Complainant
could address her complaints to the Global Mechanism, casu quo the Conference of
the Parties. The foregoing evolution in th e attitude of the courts of a number of
countries indicate that if the Global Mechanism, casu quo the Conference of the
Parties, fails to offer reasonable alternative means to the Complainant or fails to
enter into a friendly settlement with her, national courts will be prepared to
entertain her claims.
76. Given that the Complainant is a resident of Italy, the attitude of the courts of that
country should particularly be taken into account in this regard. In a 1999 case
involving the European University Institute, an Italian court ruled that customary
rules on immunity apply only to States, not to international organizations, such
entities enjoying only limited international legal personality. 53 In a 2007 case,
another Italian court confirmed that the immunity of international organizations
51Ibid. at 57.
52
Waite and Kennedy v. Germany , Application No. 26083/94, European Court of Human Rights,
February 18, 1999, para. 50 (relying on Golder v. United Kingdom , Application No. 4451/70, 21
February 1975, Series A No. 18, [1975] ECHR 1, para. 36, and the recent decision in Osman v. United
Kingdom, European Court of Human Rights, Application No. 23452/94, 28 October 1998, [1998]
ECHR 101, para. 136).
53As discussed in https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP143e.pdf in reference to EUI
v. Piette, Italian Yearbook of International Law (1999), p. 156.
28 could only be based on conventional instruments, such as headquarters
54
agreements, and not on alleged customary international law. Italy belongs to
those countries the courts of which review an organization’s acts in light of human
rights law as enshrined in domestic law, rather than international human rights
instruments. Also within this category are courts that are largely deferring to the
organizations, as well as courts that are willing to pass judgment on the quality of
the organization’s internal complaint procedures. In Italy, the interpretation given
to the relevant constitutional provision regarding the right to a remedy (Article 24
of the Italian Constitution) is very similar to the approach adopted by the
55
European Court of Human Rights. In its long-standing jurisprudence limiting the
jurisdictional immunity of international organizations along the lines of a restrictive
State immunity concept, the Italian courts sometimes have been expressly mindful
of the constitutional law requirement, laid down in Article 24 of the Italian
Constitution, “that the legitimate interests of citizens should be afforded judicial
protection.” 56
77. In conclusion, it was and remains incumbent upon the Global Mechanism, casu quo
the Conference of the Parties, as the em ployer of the Complainant to provide her
with adequate means for dealing with any claims arising from the non-renewal of
her fixed-term contract. Failure of the Global Mechanism, casu quo the Conference
of the Parties, to do so would clear the path for the Italian courts to entertain her
claims against her employer.
D. Providing the requested Opinion will not violate the principle of the
equality of parties
78. The Fund is aware of the fact that in the Unesco Case the Court itself and several
of its Members through their individual opinions expressed concerns about the
ability of the Court to respect the princi ple of the equality of parties under the
procedure foreseen in Article XII of the ILOAT Statute. In particular, they were
concerned about the fact that, whereas under the Court’s Statute only States and
54As discussed in https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP143e.pdf in reference to:
ILDC 3718 (IT 2007); ILDC 297 (IT 2005), H4 (refusing to uphold a general customary international
law rule of par in parem non habet imperium/jurisdictionem, as exists in the law of State immunity).
55An older line of cases relying on the iure imperii/iure gestionis distinction to determine the scope of
jurisdictional immunity of international organizations, such asBranno v. Ministry of War , Corte di
Cassatione, Riv. dir. int. (1955), 352, 22 ILR 756;Porru v. FAO, 25 June 1969, Rome Court of First
Instance (Labor Section), [1969] UNJYB 238; FAO v. INPDAI, Supreme Court of Cassation, 18
October 1982, [1982] UNJYB 234, was abandoned in FAO v. Colagrossi, Corte di Cassazione, 18 May
1992, No. 5942, 75 RivDI (1992), p. 407, where the Italian Supreme Court recognized the absolute
immunity from suit of the defendant international organization.
56FAO v. INPDAI, Supreme Court of Cassation, 18 October 1982, UN Juridical Year Book (1982), pp.
234-235.
29 international organizations can participate in proceedings before the Court,
individual complainants having obtained ILOAT judgments lack that right.
79. This concern might be warranted if the procedure established by Article XII is
construed as an appeal properly so-called by a party to a dispute submitted to the
Tribunal. Indeed, in the Unesco Case there was no reason for the Court to consider
another dimension of Article XII of the Tribunal’s Statute, one that is highlighted
by the present case: if the Article XII procedure is construed as a procedure
established to preserve a matter of general interest, the concerns regarding the
equality of parties become less of an issue. Evidence of the fact that the Article
XII procedure should not merely be regarded as an ordinary appeal by a party to
an ILOAT case can be found in the requirement that the Executive Board of the
organization having accepted the ILOAT’s jurisdiction, rather than the
organization’s chief administrative officer, is the designated body to decide to refer
the case to the Court. This requirement stems from the fact that recognition of the
Tribunal’s jurisdiction is a matter pertaining to the external relations of the
organization concerned, more specifically, the understanding concerning the
Tribunal’s jurisdiction between the recognizing organization, on the one hand, and
the International Labour Organization, on the other. By recognizing the jurisdiction
of the Tribunal, a recognizing organization accepts that a subsidiary body of the
International Labour Organization adopts decisions that are binding for the former
in the cases narrowly defined in Article II of the ILOAT Statute and in accordance
with the procedures set forth therein. In this sense, the purpose of Article XII is
also to provide the recognizing organization with a means to ensure that the
conditions under which it has accepted to be subject to the decisions of a
subsidiary body of the International Labo ur Organization (i.e., those stated in
Article II of the ILOAT Statute) are respected in each case.
80. In this context it is recalled that by its letter dated 4 October 1988, the Fund
invited the Governing Body of the Intern ational Labour Office to approve the
Fund’s declaration of recognition of the Tribunal’s jurisdiction and acceptance of its
Rules of Procedure with effect from 1 Ja nuary 1989. The Governing Body of the
International Labour Office approved the Fund’s declaration at its 241 stsession on
18 November 1988. 57 These two acts taken together constitute a consensual
arrangement whereby the Fund is permitted to use the Tribunal’s services and
accepts its decisions as binding subject to Article XII of the Tribunal’s Statute. In
this sense the declaration whereby the recognizing organization accepts the
Tribunal’s jurisdiction is different from an Optional Clause declaration whereby a
57These documents are included unde r Tabs II(1) and II(2) of the dossier that has been provided to
the Court.
30 State accepts the compulsory jurisdiction of the Court, the latter declaration
requiring no approval by the Court or the United Nations.
81. The Tribunal itself has confirmed the foregoing characterization in one of its
decisions:
“5. According to Article II(5) of its Statute it is competent to hear a
complaint only if the international organisation that employs the
complainant has addressed to the Director-General of the
International Labour Office a declaration of recognition in
accordance with its Constitution or internal administrative rules and
if the Governing Body of the International Labour Office has
58
approved the declaration.”
82. The need of organizations having recognized the Tribunal’s jurisdiction for the
special recourse provided under Article XII of its Statute is highlighted by the
present case. By virtue of Judgment No . 2867, the Fund is confronted with the
following situation:
(i) The Fund has been ordered by the Tribunal to pay monetary and other
damages to an individual who was not at any time an official of the Fund
nor performed any functions of the Fund;
(ii) The Fund has been held liable for alleged faults in the decision-making by
an international entity that is separate from the Fund;
(iii) The Fund has been held liable for alleged breaches of rules and
instruments that do not pertain to “the terms of appointment” of any of its
officials nor to “the Staff Regulations” of the Fund, as such terms are
employed in Article II, paragraph 5, of the ILOAT Statute;
(iv) By its generic statement, in Consideration 11 of Judgment No. 2867, that
“the personnel of the Global Mechanism are staff members of the Fund,”
the Tribunal has placed at least 22 other individuals in a similar situation
as the Complainant, even though su ch individuals are employed by and
perform work for an entity that is separate from the Fund.
83. In the present case, acts of another entity have been attributed to the Fund in
disregard of the rules of international law concerning the attribution of conduct to
international organizations. Accordingly, the procedure foreseen in Article XII
serves as a mechanism to determine whether a specific decision by the Tribunal is
in accordance with the agreement between the recognizing organization and the
International Labour Organization. Given that they are third parties to that
58ILOAT Judgment No. 1033 of 26 June 1990.
31 agreement, it is understandable why no direct role is assigned to individual
complainants in Article XII proceedings.
E. The Fund’s Request raises issues never before presented to or addressed
by the Court
84. The present case differs both proced urally and substantively from the Unesco
Case, the only previous proceeding brought before the Court pursuant to Article
XII of the ILOAT Statute. 59 From the procedural perspective, in stark contrast to
the present case, no preliminary question of the Tribunal’s competence was raised
or featured in the Unesco Case: Unesco did not object to the Tribunal’s jurisdiction
before the Tribunal. As the record before the Tribunal shows, IFAD informed the
Tribunal at the outset of the proceedings of its jurisdictional objections and put the
Tribunal on notice that any decision confirming its jurisdiction notwithstanding the
Fund’s objections would trigger the procedure foreseen in Article XII of the ILOAT
60
Statute. For this reason, it is surprising that, in contrast to the Tribunal’s
Judgment of 26 April 1955 that was challenged in the Unesco Case, Judgment No.
2867 does not include a distinct decision “On Competence” in the dispositif or
elsewhere. Notwithstanding this differen ce in formality, as explained above,
Judgment No. 2867 does incorporate decisions pertaining to the Tribunal’s
competence and jurisdiction and which underlie the Tribunal’s ultimate findings of
liability against the Fund in the dispositif.
85. Substantively, the present case also differs sharply from the Unesco Case. The
Unesco Case did not raise any question concerning the relationship between the
employee of a housed entity and the housing organization, a question that is
squarely at the center of the present case. Indeed, while the Unesco Case did not
feature any extraneous aspects whatsoever, such aspects define the present case.
Identifying the actual employer of the complainant-employee was not an issue in
the Unesco Case, which was limited to dealings between the Director-General of
Unesco and the complainants-employees of Unesco, whereas this question lies at
the heart of the present case and is decisive for the Tribunal’s jurisdiction, both
ratione personae and ratione materiae . In the Unesco Case, the complainants
submitted an appeal to the Unesco Appeals Board following an unsuccessful
application to the Director-General of Unesco to reconsider his decision not to
renew their fixed-term contracts, whereas in the present case the Complainant
submitted an appeal to IFAD’s Joint Appeals Board asking that the decision of the
Managing Director of the Global Mechanism be rescinded—in other words, neither
59 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77.
60Reply of the Fund, para. 30.
32 the Fund nor its President were involved in any way. It was only after he rejected
the Joint Appeals Board’s recommendation that the IFAD President entered the
stage—not in his capacity as IFAD President, but in his special capacity under the
Memorandum of Understanding between the Conference of the Parties and the
Fund.
86. In contrast to the Unesco Case, the Tribunal’s decision in the instant case is not
based on “the terms of appointment of officials and of provisions of the Staff
Regulations” of the defendant-organization, as such terms are employed in Article
II, paragraph 5, of the ILOAT Statute, but instead relied exclusively on (i) an
international agreement, in the form of a memorandum of understanding between
two international institutions, which does not belong to the employment
relationship, or at least is one from which the complainant cannot derive any
rights; and (ii) decisions concerning the non-extension of a fixed-term contract
that are taken, not by the defendant-organization, but by a third organization
which, while employing the complainant, was absent from the proceedings before
the Tribunal. As a consequence, the present case raises questions which the Court
was called upon to address neither in the Unesco Case nor in any previous case.
They include in particular: (i) Can an international organization which houses an
entity that is separate from it incur liability for the employment decisions of the
housed entity?; (ii) What are the applicable criteria for attributing conduct of the
housed entity to the housing organization?; and (iii) Based on the answers to the
foregoing questions, how is one to delimit the ILOAT’s jurisdiction in cases
involving organizations housed by other organizations and assess the ILOAT’s
procedure followed in such cases?
F. Conclusion
87. For the reasons set out above, the Court is competent to give a binding Opinion in
this case on the basis that the Fund is competent to request such an Opinion from
the Court on the subject-matter of the request, and there are no compelling
reasons preventing the Court from giving its Opinion on the questions submitted
by the Fund.
33 Part Two
THE LAW – THE QUESTIONS IN THE REQUEST FOR AN ADVISORY OPINION
34 Chapter 4. QUESTION I
88. The first question put to the Court by the Fund in the present proceedings reads as
follows:
“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 me mber 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?”
89. The Fund submits that this question should be answered in the negative. The
Tribunal lacked jurisdiction, both ratione personae and ratione materiae , to
entertain the complaint in its entirety against IFAD, and the Tribunal’s decisions to
entertain the complaint as submitted and argued by the Complainant constitute a
fundamental fault in the procedure followed.
90. Answering Question I as proposed by the Fund is not only dictated by the
Tribunal’s Statute when viewed against the wording of the complaint introduced
against the Fund, it also is in accord with the Tribunal’s own jurisprudence, in
particular its Judgment No. 1033 of 26 June 1996.
A. Lack of jurisdiction ratione personae: The Complainant was not an official
of the Fund at the relevant time
91. If the Complainant was not an official of the Fund, the Tribunal according to its
own admission was prevented from hearing her complaint on that basis alone. 61
According to Article II, paragraph 5, of the Tribunal’s Statute, the Tribunal’s
jurisdiction ratione personae is limited to “officials … of any other
intergovernmental international organization” having made a declaration accepting
the Tribunal’s jurisdiction, which in this case must mean the Fund — the
Conference of the Parties, which the Tribunal acknowledged “is the Convention’s
supreme body [that] established the Global Mechanism,” has not made such a
declaration and has, therefore, not accepted the Tribunal’s jurisdiction according to
the terms of Article II, paragraph 5, of the Tribunal’s Statute. 62 Article II,
61See ILOAT Judgment No. 2867, Consideration 9 (first sentence).
62
See ibid, para. A. Elsewhere, the Tribunal states that the “Global Mechanism was established by
the United Nations Convention to Combat Desertification in Those Countries Experiencing Severe
Drought and/or Desertification, Particularly in Africa.” Ibid. para. 2.
35 paragraph 6, of the ILOAT Statute confirms that only an “official” of the declaring
organization has standing to complain before the Tribunal. 63In connection with
questions of non-renewal of fixed-term contracts, the Court has said that what is
relevant is whether “at the time when the question of renewal arises the interested
person is an official of the Organization and not a stranger to it.” 64 In its Judgment
No. 2918 dated 8 July 2010, the Tribunal held with regard to Article II, paragraph
5, of its Statute that: “[T]he consequence of that provision is that the Tribunal
may hear the two complaints only if the complainant was, at the relevant times,
an official of the [defendant-organizatio n] and the [defendant-organization] has
recognised the jurisdiction of the Tribunal.”
92. Pursuant to the second sentence of Article I of the Memorandum of Understanding
between the Fund and the Conference of the Parties, the Fund, as the housing
institution, supports the Global Mechanism in performing these functions in the
framework of its mandate “and policies of the Fund”. One form of support provided
by the Fund is providing assistance to the Global Mechanism in connection with its
staffing. The Fund provides these services by acting as an agent for engaging and
releasing staff of the Global Mechanism and by allowing the Global Mechanism to
use (part) of the Fund’s rules and policies as the framework for the employment of
65
the staff of the Global Mechanism. Thus,contrarytowhatisstatedby the
66
Tribunal in Consideration 10 of its Judgment No. 2867, the authority to
determine the conditions of employment on behalf of the Global Mechanism
derives from Article I, second sentence, of the Memorandum of Understanding.
93. The Tribunal rightly observed that the Fund’s “argument that the complainant was
not a staff member of the Fund […], if correct, would mean that the Tribunal has
67
no jurisdiction to entertain the complaint.” If the Tribunal’s finding on this key
jurisdictional issue were to be correct, which the Fund submits is not the case, it
would merely mean that the Complainant had the right in principle to complain
against the Fund before the Tribunal, but it would leave unaffected the question of
the Tribunal’s jurisdiction ratione materiae, discussed separately below.
63Statute, Art. II(6): “The Tribunal shall be open: (a) to the official ….”
64
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 93 (emphasis added).
65
It is to be noted that unlike the practice of the WHO with regard to the institutions that it hosts, the
Fund’s policy is not to give the status of IFAD staff members to the personnel employed at such
hosted institutions. For cases involving personnel assigned by the WHO to work for its hosted entities,
see ILOAT Judgments Nos. 2497 (2006) and 2310 (2004).
66
“…the MOU confers no power on the President to determine the co nditions of appointment of the
personnel of the Global Mechanism and, thus, the President has authority to do so only if they are
staff members of the Fund.”
67ILOAT Judgment No. 2867, Consideration 9.
36 94. The Tribunal is not the only international administrative tribunal which has had to
deal with the issue of separateness of entities in determining jurisdiction in specific
cases. The path followed by the Tribunal in this case is fundamentally different
from the approach adopted in the decisions of other administrative tribunals, and
even in some decisions of the Tribunal itself.
95. The Black Case, decided by the Administrative Tribunal of the Organization of
68
American States (“OASAT”) is a case in point. Compared to Judgment No. 2867,
the difference in outcomes is remarkable. Black filed a complaint before the
OASAT claiming that the Inter-American Institute for Cooperation on Agriculture
(IICA) had violated certain contractual rights by not paying him a tax
reimbursement in relation to a lump sum retirement distribution that he received
from the IICA. Mr. Black was employed by the OAS from September 1980 through
October 1987, and participated in the OAS retirement and pension system during
this period. He then left his job at the OAS to take a position with the IICA, which
lasted until he retired in December 1995. While working at the IICA, Mr. Black
continued his participation in the OAS retirement plan, since the IICA made use of
this system for its own employees. In 1991 the OAS paid over to the IICA the full
amount that it calculated was owed to Mr. Black as a tax reimbursement for his
period of employment with that organization, to be held in trust for future
payment. When Mr. Black retired at the end of 1996, he requested and received a
lump sum retirement payment for all the amounts due him from his participation
in the joint retirement system during his OAS and IICA employment. However, he
received a tax reimbursement only for the OAS portion of the lump sum payment
paid to the IICA in trust in 1991. Tax reimbursement for the IICA portion was not
made to the complainant on the grounds that the operable agreements on tax
reimbursements between the IICA and the U.S. government did not permit such
payments. Mr. Black therefore tried to establish that the OAS and IICA are not
separate entities so that he could benefit from the tax reimbursement. As in the
present case, it was necessary for the OASAT to determine the question of
separateness. It held as follows in this regard:
“13. Complainant cites a variety of ways that IICA and OAS are
linked as evidence that they are not independent entities, and that
his employment at IICA was therefore merely an extension of his
employment at OAS, thus providing an alternative basis for
establishing his status as a ‘pre-1984’ employee under the terms of
the TRA.
68 OASAT Judgment No. 137 of 9 May 1997, text available online:
http://www.oas.org/tribadm/catalog_test/english/hist_97/137.doc
37 14. Under well-established principles of international law relating to
institutional status and agency, the independent or subsidiary status
of an entity is determined by such factors as the legal framework for
the organizations, the nature of how the organizations are directed
and their policies established, and how financial obligations and
expenditures are handled. Of special significance is the question
whether the organization in question has a specific and separately
identified juridical personality. As the material presented by the
Respondent suggests, they have different constituting charters,
different leadership and organizational structures, different finances,
different policy-making mechanisms and different juridical
personalities. They operate separately in their contacts and
arrangements with constituent governments. All these facts point to
the conclusion that IICA and the OAS are two entirely separate
organizations.
15. The fact that these two organizations share some project
activities and office space, make use (by agreement) of the same
retirement system, and use common mechanisms (such as this
Tribunal) to help carry out their functions, does not detract from
their essential independence as separate entities.
16. As independent organizations, there is no basis for the claim
that employment at IICA establishes continuity with the OAS
employment period that began in 1980, so as to place the
Complainant in the status of a pre-1984 employee.”
96. The issue of separateness and its consequences for the jurisdiction of an
international administrative tribunal has also been addressed by the International
Monetary Fund Administrative Tribunal (IMFAT) in a case where a staff member
attempted to impute certain acts of the staff association on the organization in an
effort to establish that tribunal’s jurisdiction. In declining to assume jurisdiction
over that conduct, the IMFAT explaine d why the association that might exist
between two entities does not mean that they must be treated as one for the
purpose of its jurisdiction:
“113. Furthermore, it is clear from the Staff Association’s
constitutive documents and from its actual work that it acts
independently of the Fund. While it may sometimes function in an
advisory role to management, its primary purpose is to act as
representative of staff (vs. management) interests. There is nothing
in the circumstances of this case to suggest that its purpose was
otherwise here. Indeed, even Applicant alleges that if the SAC made
38 available to staff members copies of the SBF Report it did so ‘in
furtherance of its goals’, not the goals of the International Monetary
Fund. If the SAC Chairman regarded it as within the scope of his
responsibilities as representative of staff interests to make the
Report available to members of the staff at large, it would be
difficult to treat such an act as a ‘decision taken in the
administration of the staff of the Fund’ within the meaning of Article
II of the Tribunal’s Statute.
114. Accordingly, the Administrative Tribunal concludes that,
whatever complaint or remedy Applicant may or may not have
against the Staff Association Committee for its actions with respect
to the 1996 SBF Report, that complaint or remedy cannot be
pursued in the Administrative Tribunal. Nor may the Administrative
Tribunal entertain as part of Applicant’s complaint against the Fund
(for breach of the Retirement Agreement and violation of GAO No.
35) all of the alleged consequences of the Fund’s circulation of the
1996 SBF Report, including the handling of the Report by the SAC
after it reached its offices. Such an extension of the Tribunal’s
jurisdiction to acts taken by the SAC would be inconsistent with the
statutory limitation on the Tribunal’s jurisdiction to consideration of
‘decision[s] taken in the administration of the staff of the Fund’.
Hence, Applicant’s allegation that the Fund is liable for acts of the
Staff Association Committee in handling the 1996 SBF Report is not
69
within the Tribunal’s jurisdiction ratione materiæ.”
97. As will be explained further in the following paragraphs, there is no reason why
the foregoing approach should not be fo llowed in the present case. The present
case involves two entities, each of which has its own constituent instrument. As
these instruments demonstrate, each entity has its own governance and
organizational structure, its own budget and financing practices, and its own
policy-making mechanism. These entities operate separately in their contacts and
arrangements with constituent governments. As the Complainant and the Fund
expressly agreed before the Tribunal, the entities involved in this case are
separate legal entities. To use the words employed by the tribunal in the Black
Case, “[t]he fact that [the Fund and the Global Mechanism] share […] office space,
make use (by agreement) of the same retirement system […], does not detract
from their essential independence as separate entities.”
69IMFAT Judgment No. 1999-2 ( Mr. “V” v. IMF ) (13 August 1999), text available online:
http://www.imf.org/external/imfat/pdf/j1999_2.pdf
39 98. As a matter of fact, the issue of separateness is not new to the Tribunal itself. In
Pelletier, UNESCO successfully argued that the complainant had never been an
official of UNESCO, nor had been in its service in any capacity, and that the Co-
ordination Committee for International Voluntary Work Camps, a non-
governmental international organisation which maintains relations with UNESCO
and which receives a subvention from it in return for the execution of specified
work undertaken on the basis of specific contracts, is distinct from and
independent of UNESCO and is not an emanation of it, and that consequently,
under article II, paragraph 5, of its St atute, the Tribunal was not competent to
70
deal with the complainant’s request.
99. It is to be noted that in a case similar to the present one, the Tribunal decided that
the mere fact that an organization is housed by another organization, and the fact
that the latter’s staff rules are applied mutatis mutandis to the personnel of the
former, does not by itself render the Tribunal competent ratione personae. This
case is of utmost importance because the Tribunal ruled against the housing
organization’s own assertion that personnel of the housed entity was its staff and
that the Tribunal was competent on that basis. The case concerned a complainant
who was an official of the International Union for the Protection of New Varieties of
Plants (UPOV). The Union was set up under an international Convention of 2
December 1961, which was revised on 10 November 1972 and again on 23
October 1978. It has its headquarters in Geneva. The complainant submitted that
the Tribunal was competent by virtue of an Agreement which UPOV had concluded
with the World Intellectual Property Organization (WIPO) on 26 November 1982.
The complainant maintained that WIPO’s own recognition of the Tribunal’s
competence extends to UPOV, his employer. He pointed out that, according to
Article 1(1) of the Agreement, “WIPO sha ll satisfy the requirements of UPOV as
regards ... (ii) personnel administration, as far as the staff of the Office of UPOV is
concerned”; that under Article 8(1) of the Agreement, the Staff Regulations and
Staff Rules of WIPO shall apply mutatis mutandis to staff of the Office of UPOV;
and that Article 11.2 of the Staff Regulations allows for appeal to the Tribunal.
Under Article 4(1) of the Agreement, the Secretary-General of UPOV is also the
Director-General of WIPO. In answer to a question from the President of the
Tribunal, the Director-General replied that he endorsed the complainant’s
submissions regarding the Tribunal's competence. He took the view that, by virtue
of Article 8 of the Agreement, the staff of UPOV are assimilated to WIPO staff and
that the remedies prescribed in the WIPO Staff Regulations are available to UPOV
staff as well. The Director-General added that WIPO’s contribution to the costs of
the Tribunal’s secretariat is reckoned on the strength of a number of staff that
70ILOAT Judgment No. 68 of 11 September 1964.
40 includes UPOV officials. Still, the Tribunal declined jurisdiction proprio motu on the
following grounds:
“5. According to Article II(5) of its Statute it is competent to hear a
complaint only if the international organisation that employs the
complainant has addressed to the Director-General of the
International Labour Office a declaration of recognition in
accordance with its Constitution or internal administrative rules and
if the Governing Body of the International Labour Office has
approved the declaration.
6. Under Article 24 of the Paris Convention of 1961, as amended,
UPOV has legal personality of its own and the administrative
arrangements provided for in its Agreement with WIPO do not
impair its distinct identity. The reasons why the complainant may
not appeal are that even though the WIPO Staff Regulations and
Staff Rules apply to him as an employee of UPOV he is not an official
of WIPO, and the organisation that does employ him has not
recognised the Tribunal’s jurisdiction under Article II(5).
7. The conclusion is that the Tribunal is not competent to hear the
71
complaint.”
100. Contrary to its aforementioned decision in Judgment No. 1033, the Tribunal
concluded in Judgment No. 2867 that the “written offers [received by the
complainant] and their subsequent acceptance clearly constituted the complainant
a staff member of the Fund.” 72 It is true that the offer and extension letters in the
case of the Complainant were all issued on IFAD letterhead by IFAD officials and
all of them refer to an “appointment with the International Fund for Agricultural
Development.” 73 The initial offer letter dated 1 March 2000, which was signed by
the Director of the Fund’s Personnel Division, also stated that the Complainant’s
“employment may be terminated by IFAD” and that she “will be required to give
written notice of at least one month to IFAD” should she wish to terminate her
employment during the probationary period. 74 While the two extension letters are
71ILOAT Judgment No. 1033 of 26 June 1990 (Considerations 5-7).
72
ILOAT Judgment No. 2867, Consideration 9.
73See IFAD’s Reply, Attachments D, E and F.
74
See ibid., Attachment D.
41 silent on termination and resignation, both state that “[a]ll other conditions of
75
employment will remain unchanged.”
101. It should be pointed out, however, that the 1 March 2000 contract also stated as
follows: “The position you are being offered is that of Programme Officer in the
Global Mechanism of the Convention to Combat Desertification , Office of the
President (OP), in which capacity you would be responsible to the Managing
Director of the Global Mechanism ” (emphasis added). 76 The extension letters
contain identical references to the stipulation that “duties and responsibilities will
continue to be those of Programme Manager, Latin America Region P-4, in the
Global Mechanism to Combat Desertification.” 77 Throughout her employment with
the Global Mechanism, the Complainant was never charged with performing any of
the functions of the Fund, nor had she b een employed by the Fund or performed
functions for the Fund prior to being employed by the Global Mechanism. It is
undisputed that the Complainant performed functions exclusively for the Global
Mechanism, and not the Fund. The Complainant was never involved in any lending
operation of the Fund, directly or indirectly.
102. Based on the wording of the original contract and the extension letters, it is
perhaps understandable at first sight why the Tribunal, when viewing the offer and
extension letters in isolation, considered “the complainant a staff member of the
78
Fund” on a prima facie basis. But the Tribunal was not justified in ending its
inquiry there. The Court’s practice in Ar ticle XII proceedings indicates that the
contract must not be examined in isolation in the context of a challenge based on
jurisdiction.79As evidenced by the Black and Pelletier Cases and ILOAT Judgment
No. 1033 discussed above, the fact that two separate entities are involved in a
matter to be adjudicated demands that the adjudicatory body look beyond the
“letterheads” and other indicia in order to ascertain who the actual employer is. In
such circumstances it also is necessary to examine whether the person actually
performed any work for the institution against which a complaint is introduced
before the Tribunal. The Tribunal inexplicably failed to do so in the instant case.
Moreover, as a leading treatise has explained, the law to be applied by the
international administrative tribunals “generally comprises the terms of the
particular contract in question and the relevant Staff Regulations, Staff Rules and
75
See ibid., Attachments E and F.
76See IFAD’s Reply, para. 10 and Attachment D.
77
See ibid., Attachments E and F.
78ILOAT Judgment No. 2867, Consideration 9.
79 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 90-91.
42 Administrative Instructions,” which “texts may also be supplemented, in certain
80
circumstances, by the practice of the organisation concerned.”
103. In this connection, it must be pointed out that the initial offer letter also stated
that “[t]he appointment will be made in accordance with the general provisions of
the IFAD Personnel Policies Manual (Attachment I) and any amendments thereto,
with such Administrative Instructions as may be issued from time to time
regarding the application of the Manual, and with the terms and conditions
specified in this letter of appointment and its attachments.” 81 In 2004, the
President of IFAD decided to refine and clarify the legal position of the personnel
working for the Global Mechanism, underscoring the pivotal role of the issue of
separateness in determining who the actual employer is. This is set out in
President’s Bulletin No. PB/04/01 of 21 January 2004. Based on the wording,
which was incorporated by reference in the extension letters, in accepting the
position in the Global Mechanism offered to her by the most recent appointment
offer letter of 5 March 2004, the Complainant also accepted the terms of the IFAD
President’s Bulletin No. PB/04/01 of 21 January 2004. That document was in effect
at the time that she accepted the 5 March 2004 offer to extend her appointment.
There is no record of her rejecting those terms at the time of her acceptance,
which occurred on 8 March 2004. The Complainant accepted the extension offers
in each case “under the terms and conditions set forth in” the appointment
82
letters.
104. The initial offer letter referred to the appointment being made in accordance with
“Administrative Instructions as may be issued from time to time regarding the
application of the Manual,” while each of the extension letters stated that the
“appointment will continue to be governed by the Personnel Policies Manual,
together with the provisions of the Human Resources Handbook regarding the
application of the Manual.” 83 As regards the application of IFAD Staff Regulations
to the Complainant, Paragraph 2, last sentence, of the President’s Bulletin No.
PB/04/01 of 21 January 2004 states explicitly that it purports to clarify the existing
relationship of IFAD with the Global Mechanism. According to paragraph 10 of the
Bulletin, the application of IFAD’s Human Resources Procedures Manual (“HRPM”)
to Global Mechanism personnel is subject to the limitations and conditions spelled
out in paragraph 11 of the Bulletin. According to paragraph 11(c), “IFAD’s rules
and regulations on the provision of career contracts for fixed-term staff shall not
80P. Sands and P. Klein, Bowett’s Law of International Institutions, 5ed. (London: Sweet & Maxwell,
2001), p. 424 (emphasis added).
81See IFAD’s Reply, Attachment D.
82See ibid., Attachments E and F.
83
See ibid.
43 apply to the staff of the Global Mechanism, except for those that have already
received a career contract as a result of their earlier employment with IFAD.” This
stipulation makes clear that while Global Mechanism staff are not IFAD staff, some
of IFAD’s rules and regulations apply mutatis mutandis to Global Mechanism staff.
It is beyond doubt that the Complainant was not among “those that have already
received a career contract as a result of their earlier employment with IFAD.”
105. Paragraph 11(f) of the President’s Bulletin clearly identifies “IFAD and Global
Mechanism” as “two entities.” By referring to “IFAD and Global Mechanism staff” in
combination with “the two entities,” the Bulletin leaves no doubt about the fact
that IFAD staff are separate from Global Mechanism staff and are, therefore, not
to be assimilated for purposes of Article II, paragraph 5, of the Tribunal’s Statute.
106. Given that the record before the Tribunal shows unequivocally that it was
undisputed between the two parties that (i) IFAD and the Global Mechanism are
separate legal entities; 84 (ii) the Complainant belonged to the staff of the Global
Mechanism when she was informed of th e impugned decision of the Managing
Director of the Global Mechanism; and (iii) the Complainant had up until that time
performed work exclusively for the Global Mechanism, the Tribunal could not have
concluded, even on a prima facie basis, that it had jurisdiction under Article II,
paragraph 5, of its Statute to hear the complaint as introduced against the Fund.
107. Leaving aside the offer/extension letters, the facts belie the Complainant’s
85
assertion before the Tribunal that she “was employed only by IFAD.” The
evidence submitted by the Complainant to the Tribunal shows her as being listed
among the staff of the Global Mechanism. 86 It is undisputed that the Complainant
performed functions exclusively for the Global Mechanism, and not the Fund. As
stated above, the Complainant admitted under the heading “Separate legal
entities” in her Rejoinder filed with the Tribunal that she had “no reason to dispute
the separateness of IFAD and the Global Mechanism.” 87 The Complainant
conceded in her complaint submitted to the Tribunal that “IFAD preferred to treat
her as a Global Mechanism problem, not an IFAD obligation.” 88 The Complaint
even included evidence stating that “while ‘ FH (IFAD’s Personnel Division) feels it
84
See Complainant’s Rejoinder, para. 5: “The complainant has no reason to dispute the separateness
of IFAD and the Global Mechanism.” This one- sentence paragraph is made under the heading
“Separate legal entities.” In other words, as stat ed above, the Complainant accepted that IFAD and
the Global Mechanism are separate legal entities.
85
Rejoinder, para. 34.
86See Complaint, Attachment 14.
87
Rejoinder, para. 5.
88Complaint, para. 27.
44 can provide administrative support to GM staff it does not consider them the staff
of IFAD.’” 89
108. If the Complainant was listed among the staff of the Global Mechanism in official
documentation and if the Global Mechanism is an entity that is legally separate
from IFAD, as both parties expressly agreed before the Tribunal, the Complainant
is squarely placed outside the Tribunal’s jurisdiction ratione personae under Article
II, paragraph 5, of the Statute, unless she is also a Fund official at the relevant
time, quod non.
109. According to the Court, “[t]he question of the renewal of a fixed-term contract
arises for one who is at the time a staff member of [the defendant-
organization].” 90 Thus, the Complainant must have been an official of the Fund on
15 March 2006. On that date, she was a staff member of the Global Mechanism.
110. The express reference to the Fund’s staff regulations and rules, as well as to any
amendments thereto, in the Complainant’s offer and extension letters is a factor
that has been taken into account by the Court in determining whether an assertion
of unlawful non-renewal of contract was “s ufficiently well-founded to establish the
competence of the Administrative Tribunal.” 91 In an earlier case concerning the
Tribunal, the Court attached significance not only to the fact that “the contract of
employment expressly refers to the Staff Regulations and Rules, as well as any
amendments thereto,” but also to the fact that “[t]he expression ‘terms of
appointment,’ which is used in the English text of the Statute of the Administrative
Tribunal … also appears in the document relating to [complainant’s]
92
engagement.” While that expression does not appear in the offer and extension
letters of the Complainant, those letters do refer to “terms and conditions of your
93 94
present contract” and “conditions of employment.”
111. In any event, the Court has stated that it “cannot admit that in order to appreciate
the legal situation in the matter it is possible to attach exclusive importance to the
89Ibid. (emphasis in original). IFAD’s Reply drew attention to the Complainant’s concession on this
point. See Reply, para. 26.
90 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 90.
91Ibid., p. 90. See also ibid., pp. 92 (“the Staff Regulations to which the contract expressly refers.”),
94 (“the Staff Regulations and Rules to which the contract expressly makes reference and which
constitute the legal basis on which the interpretation of the contract must rest.”).
92
Ibid.
93IFAD’s Reply, Attachment D.
94Ibid., Attachments E and F.
45 95
letter of the contracts in question” and that “in order to decide on the
competence of the Administrative Tribunal, it is necessary to consider these [fixed-
term] contracts not only by reference to their letter but also in relation to the
actual conditions in which they were entered into and the place which they occupy
in the Organization.” 96 For this question, the Court has looked to the practice of
the defendant-organization, which it considers “a relevant factor in the
interpretation of the contracts in question.” 97
112. In sum, considering all the relevant facts, documents and rules, the Tribunal failed
to recognize that the Complainant was not an official of the Fund within the
meaning of Article 6, paragraph a, of its Statute and that it therefore was not
competent to hear the complaint introduced by the Complainant. The Tribunal
should have concluded in the same way as it did in its Judgments Nos. 68 and
1033 by declaring itself not competent to entertain the complaint introduced
against IFAD.
B. Lack of jurisdiction ratione personae : The Global Mechanism and the
Conference of the Parties of the UN CCD are separate entities from the
Fund
113. Given the wording and the interpretation to be given to Article II, paragraph 5, of
the Tribunal’s Statute, the only situation under which the Tribunal would be
authorized to exercise jurisdiction over acts of the Global Mechanism and/or the
Conference of the Parties to the UNCCD or its officials, or may entertain pleas
requiring the review of acts of the Glob al Mechanism or its officials and/or the
Agreement Establishing IFAD (“Agreement Establishing IFAD”), is if the foregoing
bodies were not separate entities from the Fund, but parts thereof. Therefore, the
starting-point for answering the question whether the Tribunal correctly confirmed
its jurisdiction to decide over acts of the Global Mechanism or to entertain pleas
requiring the review of acts of the Global Mechanism and/or the Conference of the
Parties of the UNCCD as separate entities from the Fund, is the consideration of
the Fund’s legal status under international law, as confirmed in Article 10, Section
1, of the Agreement Establishing IFAD, which states that the Fund possesses
international legal personality. The decision to establish the Fund as an
independent international organization possessing international legal personality,
rather than as a subsidiary body of the United Nations, was carefully considered
95
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 90.
96Ibid., p. 91.
97
Ibid.
46 98
when IFAD was established , upon the recommendation of the Ad Hoc Working
99
Group . The Fund is constituted primarily by the organs and bodies enumerated
in the Agreement Establishing IFAD, which are:
• The Governing Council;
• The Executive Board; and
• The President and Staff.
114. Sub-organs of the Governing Council or the Executive Board as well as any
subsidiary body – as opposed to separate entities created by the Fund, such as
trust funds100 – also pertain to the corpus of the Fund. Finally, officers and officials
appointed or designated under or pursuant to the Agreement Establishing IFAD,
such as the Governors, the Chairman of the Governing Council and his or her
deputies, the representatives of Member States in the Executive Board when
exercising power in or derived from the Agreement Establishing IFAD, pertain to
the corpus of the Fund for the purpose of international law, including the law of
the international civil service.
115. The foregoing criteria for the delimitation of what comprises the Fund imply that,
unless it can be established that either the Global Mechanism and/or the
Conference of the Parties are bodies es tablished by the Governing Council or the
Executive Board, or that the Managing Director of the Global Mechanism and other
employees of the Global Mechanism are staff members of the Fund within the
meaning of the Agreement Establishing IFAD, the Tribunal wrongly confirmed its
jurisdiction to adjudicate over the acts of the Global Mechanism and/or the
Conference of the Parties. For the same reason, one would have to conclude that
the Tribunal wrongly decided to entertain pleas that required the review of acts of
the Global Mechanism and its officials.
116. It is to be noted that the Conference of the Parties is not enumerated in the
Agreement Establishing IFAD as one of the bodies of the Fund, nor has it been
established by any of the Fund’s organs in the exercise of powers derived from the
Agreement Establishing IFAD. In this regard the Court is invited to take note of
98UN WFC Doc. IFAD/CRP.11, 10 November 1975, Report of the Meeting of Interested Countries on
the Establishment of the International Fund for agricultural Development, Chapter III (Legal Status of
the Fund), paras. 12-21.
99UN WFC Doc. IFAD/CRP.1/Annex, October 1975, Report of the Ad Hoc Working Group on the
Establishment of the International Fund for agricultural Development, Annex, Draft Articles on the
Establishment of the International Fund for agricultural Development
100
See on the concept of trust funds in international law: J. Gold, Trust funds in international law: the
contribution of the International Monetary Fund to a code of principles, American journal of
International Law, 1978, and I. Bantekas, Trust Funds Under International Law: Trustee Obligations
of the United Nations and International Development Banks (T.M.C. Asser Press, 2009).
47 Part IV of the United Nations Convention to Combat Desertification (“Convention”
or “UNCCD”), which concerns its institutions. It is clearly stated in Article 22 of the
Convention that the Conference of the Parties is established by the Convention:
“1. A Conference of the Parties is hereby established.
2. The Conference of the Partie s is the supreme body of the
Convention. It shall make, within its mandate, the decisions
necessary to promote its effective implementation. In particular, it
shall:
(a) regularly review the implementation of the Convention and the
functioning of its institutional arrangements in the light of the
experience gained at the national, subregional, regional and
international levels and on the basis of the evolution of scientific
and technological knowledge;
(b)promote and facilitate the exchange of information on
measures adopted by the Parties, and determine the form and
timetable for transmitting the information to be submitted
pursuant to article 26, review the reports and make
recommendations on them;
(c) establish such subsidiary bodies as are deemed necessary for
the implementation of the Convention;
(d) review reports submitted by it s subsidiary bodies and provide
guidance to them;
(e) agree upon and adopt, by co nsensus, rules of procedure and
financial rules for itself and any subsidiary bodies;
(f) adopt amendments to the Convention pursuant to articles 30
and 31;
(g) approve a programme and budget for its activities, including
those of its subsidiary bodies, and undertake necessary
arrangements for their financing;
(h) as appropriate, seek the cooperation of, and utilize the
services of and information provided by, competent bodies or
agencies, whether national or international, intergovernmental or
non-governmental;
48 (i) promote and strengthen the relationship with other relevant
conventions while avoiding duplication of effort; and
(j) exercise such other functions as may be necessary for the
achievement of the objective of the Convention.
3. The Conference of the Parties shall, at its first session, adopt
its own rules of procedure, by consensus, which shall include
decision-making procedures for matters not already covered by
decision-making procedures stipulated in the Convention. Such
procedures may include specified majorities required for the
adoption of particular decisions.”
117. The Convention was adopted in Paris on 17 June 1994 and opened for signature
there on 14-15 October 1994. It entered into force on 26 December 1996, 90 days
after the fiftieth ratification was received.
118. Article 22, paragraph 2, of the Convention describes the Conference of the Parties
as “the supreme body of the Convention.” The Conference of the Parties is the
101
“supreme organ in which all member states are represented.” According to the
Web site of the Convention, which describes the Conference of the Parties as “the
Convention’s supreme governing body,” th e Conference of the Parties comprised
102
193 States parties to the Convention as at August 2009. Thus, the Conference
103
of the Parties is the principal or plenary organ under the Convention.
119. The Conference of the Parties held its first session in October 1997 in Rome, Italy;
the second in December 1998 in Dakar, Senegal; the third in November 1999 in
Recife, Brazil; the fourth in December 2000 in Bonn, Germany; and the fifth in
October 2001 in Geneva, Switzerland. As of 2001, Conference of the Parties’
sessions were held on a biennial basis.
120. Article 22, paragraph 6, of the Convention provides that the Conference of the
Parties “shall elect a Bureau” at each ordinary session.” Under Article 23,
paragraph 1, “[a] Permanent Secretariat is hereby established.”
121. According to Article 24, paragraph 1, of the Convention, “[a] Committee on
Science and Technology is hereby established as a subsidiary organ of the
101 th
H.G. Schermers and N.M. Blokker, International Institutional Law, 4 ed. (Boston/Leiden: Martinus
Nijhoff Publishers, 2003), p. 290.
102See: “www.unccd.int/convention/menu.php”.
103 nd
C.F. Amerasinghe, Principles of the Institutional Law of International Organizations , 2 ed.
(Cambridge University Press, 2005), p. 132; H.G. Schermers and N.M. Blokker, International
Institutional Law, 4hed. (Boston/Leiden: Martinus Nijhoff Publishers, 2003), p. 290.
49 Conference of Parties.” Article 22, paragrap h 2(c) of the Convention provides that
the Conference of the Parties may “establish such subsidiary bodies as are deemed
necessary for the implementation of the Convention.”
122. With regard to subsidiary organs, Article 22, paragraph 2(d), of the Convention
provides that the Conference of the Part ies shall “review reports submitted by its
subsidiary bodies and provide guidance to them.” Similarly, under Section III.A.2
of the Memorandum of Understanding between the Fund and the Conference of
the Parties, the Managing Director of th e Global Mechanism is to “submit reports
to the Conference” 104 and Section III.A.3 states that “[t]he Conference will provide
policy and operational guidance” to the Global Mechanism.
123. According to Article 22, paragraph 2(g), of the Convention, the Conference of the
Parties shall “approve a programme and budget for its activities, including those of
its subsidiary bodies, and undertake necessary arrangements for their financing.”
Similarly, Section III.A.6 of the Memorand um of Understanding between the Fund
and the Conference of the Parties provides that “[t]he Conference will approve the
programme of work and budget of the Global Mechanism.”
124. As regards the Global Mechanism, it must be noted that this entity is not
enumerated in the Agreement Establishing IFAD as one of the bodies of the Fund.
Also, the Global Mechanism was not established by any of the organs of the Fund
in the exercise of powers derived from the Agreement Establishing IFAD. 105 In
fact, the Global Mechanism was established under, and derives its mandate from,
Article 21 of the Convention. As far as is relevant for the present purposes, Article
21 of the Convention provides as follows:
“4. In order to increase the effectiveness and efficiency of
existing financial mechanisms, a Global Mechanism to promote
actions leading to the mobilization and channelling of substantial
financial resources, including for the transfer of technology, on a
104Additionally, Section III.B of the Memorandum of Understanding states that “[t]he Managing
Director … will submit a report to each ordinary session of the Conference on the activities of the
Global Mechanism,” which reports “will be submitted to the Executive Secretary of the CCD for
circulation to the COP.” See also Section 5 (“Repo rting to the Conference of the Parties”) of the
Annex (“Functions of the Global Mechanism”) to Decision 24/COP.1, doc. ICCD/COP(1)/11/Add.1.
105See for an application of this test, Judgment No. 245 of the United Nations Administrative Tribunal
of 25 May 1979 (Shamsee), Consideration I: “It is true that the assets of the Fund are separate from
the assets of the United Nations, that the Fund is governed by its own regulations, that the United
Nations is only one of several organizations participating in the Fund and that the chief executive
officer of the Fund is not the Secretary-General ofthe United Nations but the Secretary of the Staff
Pension Board itself. Nevertheless the Staff Pension Fund has been established by the United Nations
General Assembly, the Fund exists on the basis of its Regulations which were adopted by the General
Assembly, and the Fund is a subsidiary organ of the General Assembly, admittedly of a special type.”
50 grant basis, and/or on concessional or other terms, to affected
developing country Parties, is hereby established. This Global
Mechanism shall function under the authority and guidance of
the Conference of the Parties and be accountable to it.
5. The Conference of the Parties shall identify, at its first
ordinary session, an organization to house the Global
Mechanism. The Conference of the Parties and the organization
it has identified shall agree upon modalities for this Global
Mechanism to ensure inter alia that such Mechanism:
(a) identifies and draws up an inventory of relevant
bilateral and multilateral cooperation programmes that are
available to implement the Convention;
(b) provides advice, on request, to Parties on innovative
methods of financing and sources of financial assistance and on
improving the coordination of cooperation activities at the
national level;
(c)provides interested Parties and relevant
intergovernmental and non-governmental organizations with
information on available sources of funds and on funding
patterns in order to facilitate coordination among them; and
(d) reports to the Conference of the Parties, beginning at
its second ordinary session, on its activities.
6. The Conference of the Parties shall, at its first session,
make appropriate arrangements with the organization it has
identified to house the Global Mechanism for the administrative
operations of such Mechanism, drawing to the extent possible on
existing budgetary and human resources.
7. The Conference of the Parties shall, at its third
ordinary session, review the policies, operational modalities and
activities of the Global Mechanism accountable to it pursuant to
paragraph 4, taking into account the provisions of article 7. On
the basis of this review, it shall consider and take appropriate
action.”
125. As it appears from Article 21, paragraphs 4-7, of the Convention, which are
included in Part III entitled “Action programmes, scientific and technical
51 cooperation and supporting measures” of the Convention, the Global Mechanism is
106
an integral part of the Convention and is not an organ of the Fund. The Global
Mechanism was established directly under the Convention; it was not established
under the Agreement Establishing IFAD. It is not suggested anywhere that the
Fund was involved in any way in the establishment of the Global Mechanism or in
formulating the mandate and functions of the Global Mechanism.
126. It is difficult to accurately place the Global Mechanism in the typical classification
of organs under international institutional law. It was created by treaty (i.e., the
Convention) and assigned its own mandate 107 and functions. 108 Its functions
resemble more closely administrative functions than policy-making functions, such
that the Global Mechanism could be said to be an administrative organ. But it also
resembles an international secretariat, being composed of independent civil
servants. In any event, the Global Mechanism is so closely linked with the
Convention and its supreme governing body, the Conference of the Parties, that it
must be considered an organ or body of it, and not of the Fund.
127. Whatever its exact status under the Convention and under international
institutional law, the Global Mechanism is not, or not also, an organ of IFAD. The
Global Mechanism is not one of the organs listed in Article 6, Section 1 (“Structure
109
of the Fund”) of the Agreement Establishing IFAD. It also is not a subsidiary
organ established by IFAD, given that the Tribunal acknowledged that the
Conference of the Parties, IFAD’s counterparty to the Memorandum of
Underrstanding, “established the Global Mechanism” 110 and that it is “an integral
part of the Convention accountable to the Conference.” 111 To say that “[t]he Fund
and the Global Mechanism are separate legal entities,” 112 as the Fund argued
before the Tribunal, does not necessarily trigger the issue of international legal
personality. Hence, it is difficult to understand the Tribunal’s reference to
106Indeed, the Tribunal itself referred to “[t]he fact that the Global Mechanism is an integral part of
the Convention.” ILOAT Judgment No. 2867, Consideration 6.
107
See Article 21, paragraph 4, of the Convention.
108See Annex (“Functions of the Global Me chanism”) to Decision 24/COP.1, doc.
ICCD/COP(1)/11/Add.1.
109
According to Section 1, entitled “Structure of the Fund,” the “Fund shall have: (a) a Governing
Council; (b) an Executive Board; (c) a President and such staff as shall be necessary for the Fund to
carry out its functions.”
110ILOAT Judgment No. 2867, para. A. This is actually incorrect, given that the GM was established
directly by Article 21, paragraph 4, of the Convention. See also ibid., Consideration 2, where the
Tribunal correctly stated that “[t]he Global Mechanism was established by the United Nations
Convention to Combat Desertification ….”
111Ibid., Consideration 5.
112Ibid., Consideration 5, first sentence.
52 “international legal personality” in this context. 113 The Tribunal mistakenly lumped
together the issues of legal identity and legal personality. As a Convention body,
the Global Mechanism can have its own legal identity and be legally separate from
the Fund without having separate legal personality, as that term is understood in
international institutional law. It is possible that the Global Mechanism could
share in the international legal personality of the international organization to
114
which it belongs.
128. Article 22, paragraph 2(c), of the Convention also states that the Global
Mechanism “shall function under the authority and guidance of the Conference of
the Parties and be accountable to it.” 115 This rule is repeated and reinforced in the
Memorandum of Understanding between the Conference of the Parties and the
Fund, Section III.A.1 of which states: “The Global Mechanism will function under
the authority of the Conference and be fu lly accountable to the Conference.” The
word “fully,” which does not appear in Article 21, paragraph 4, of the Convention,
is especially significant in the context of the separateness issue. Through the
words “fully accountable to the Conference” in Section III.A.1, the parties to the
Memorandum of Understanding evidently intended to underscore that the Fund
was not to be part of the accountability regime in the case of the Global
Mechanism.
129. In carrying out its mandate under Article 21, paragraph 4, of the Convention, the
Global Mechanism has been assigned certain well-defined functions by the
116
Conference of the Parties in a separate document.
130. The Memorandum of Understanding between the Fund and the Conference of the
Parties describes the Global Mechanism as an entity having its own mandate and
functions. The first sentence of Section I of the Memorandum of Understanding
reads as follows: “In carrying out its mandate, under the authority and guidance of
the Conference, the Global Mechanism will, in accordance with paragraph 2 of
Decision 24/COP.1 of the Conference, pe rform the functions described in the
113Ibid., Consideration 6.
114 nd
C.F. Amerasinghe, Principles of the Institutional Law of International Organizations , 2 ed.
(Cambridge University Press, 2005), p. 72.
115
The Conference of the Parties’ document describ ing the GM’s functions also states that “[i]n
accordance with the relevant provisions of the Convention, … the global mechanism shall function
under the authority and guidance of the Conference of the Parties, including on policies, operational
modalities and activities, and be accountable and make regular reports to it.” Annex to Decision
24/COP.1, doc. ICCD/COP(1)/11/Add.1.
116See Decision 24/COP.1, doc. ICCD/COP(1)/11/Add.1, p. 68 (Annex, entitled “Functions of the
Global Mechanism”) (“2. Decides also that the Global Mechanism, in carrying out its mandate, under
the authority and guidance of the COP, should perform the functions described in the annex to this
decision.”).
53 Annex to that Decision” (emphasis added). Significantly, this sentence contains no
reference whatsoever to the Fund and underscores that the Global Mechanism’s
functions are derived from a decision of the Conference of the Parties, and not
from the Agreement Establishing IFAD or any other IFAD document.
131. As is clear from the decision of the Conf erence of the Parties adopted pursuant to
Article 21, paragraph 6 of the Convention, the role of the Fund is restricted to
housing the Global Mechanism in accordance with the terms of that decision:
“Decision 24/COP.1
Organization to house the Global Mechanism and agreement on its
modalities
The Conference of the Parties,
Recalling that the Conference of the Parties (COP), in accordance with
article 21, paragraphs 5 and 6, of the Convention to Combat
Desertification in Those Countries Experiencing Serious Drought
and/or Desertification, particularly in Africa, shall:
(a) identify, at its first ordinary session an organization to house the
Global Mechanism established under article 21, paragraph 4, of the
Convention;
(b) agree with the organization it has identified upon the modalities
for the Global Mechanism; and
(c) make, at its first session, appropriate arrangements with the
organization it has identified to house the Global Mechanism for the
administrative operations of such Mechanism, drawing to the extent
possible on existing budgetary and human resources,
Having examined the recommendations of the Intergovernmental
Negotiating Committee for the Elaboration of an International
Convention to Combat Desertification in Those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa (INCD)
regarding the functions of the Global Mechanism, and the criteria for
selecting an institution to house it, as reflected in Appendix I of
document ICCD/COP(1)/5 and in paragraphs 1 and 2 of the
Committee's decision 10/3, taken at the first part of its tenth session,
with the amendment contained in document ICCD/COP(1)/5/Add.1,
Recalling decision 10/18 of the INCD, taken at its resumed tenth
session, which, inter alia:
54 (a) requests the COP at its first session to consider the
offers of the International Fund for Agricultural Development
(IFAD) and the United Nations Development Programme
(UNDP), including any suggestions they deem necessary, and to
take appropriate action on the matters related to the selection of
an institution to house the Global Mechanism; and
(b) requests the Permanent Secretariat of the Convention,
in consultation with IFAD and UNDP, to develop proposals on
administrative and operational modalities of the Global
Mechanism for consideration and adoption by the COP at its first
session,
Noting with appreciation the revised offer of IFAD to house the
Global Mechanism, contained in Appendix II of document
ICCD/COP(1)/5, as supplemented by document
ICCD/COP(1)/CRP.3, prepared in response to operative
paragraph 1 of INCD decision 10/18,
Also noting with appreciation the revised offer of UNDP to house
the Global Mechanism, contained in Appendix III of document
ICCD/COP(1)/5, as supplemented by document
ICCD/COP(1)/CRP.2, prepared in response to operative
paragraph 1 of INCD decision 10/18,
Noting further document ICCD /COP(1)/5/Add.2/Rev.1, which
contains proposals developed by the Permanent Secretariat, in
consultation with IFAD and UNDP regarding the administrative
and operational modalities of the Global Mechanism,
1. Decides to select IFAD to house the Global Mechanism
on the basis of criteria agreed on in Section B of the Annex to
INCD decision 10/3;
2. Decides also that the Global Mechanism, in carrying
out its mandate, under the authority and guidance of the COP,
should perform the functions described in the annex to this
decision;
3. Requests the Permanent Secretariat, in consultation
with the organization to house the Global Mechanism, as well as
the other two collaborating institutions referred to in decision
25/COP.1, to develop a memorandum of understanding between
55 the COP and appropriate body or organization for consideration
and adoption at the second session of the COP;
4. Requests also the Permanent Secretariat and the
organization housing the Global Mechanism, in consultation with
the two other collaborating institutions, in developing the
memorandum of understanding referred to in paragraph 3
above, to take fully into account document ICCD/COP(1)/5 and
other related documents, including document
CCD/COP(1)/CRP.1, to address, inter alia, the following:
(a) the separate identity of the Global Mechanism within the
housing organization;
(b) the measures to be taken to assure full accountability and
full reporting to the COP;
(c) the field office support available for Global Mechanism
activities;
(d) the administrative infrastructure available to support the
Global Mechanism; and
(e) arrangements for the handling of resources made available
for Global Mechanism functioning and activities;
5. Further requests the organization housing the Global
Mechanism and the Permanent Secretariat to work out
appropriate arrangements for liaison and cooperation between
the Permanent Secretariat and the Global Mechanism in order to
avoid duplication and to enhance the effectiveness of Convention
implementation in accordance with their respective roles in
implementation;
6. Invites relevant institutions, programmes and bodies
of the United Nations system, including the United Nations Food
and Agriculture Organization (FAO), the Global Environment
Facility (GEF), the United Nations Environment Programme
(UNEP) and the World Food Programme (WFP),
intergovernmental, regional and sub regional organizations and
regional development banks, as well as interested
nongovernmental organizations (NGOs) and the private sector,
to actively support the activities of the Global Mechanism;
56 7. Urges Governments and all interested organizations,
including nongovernmental organizations and the private sector,
to make promptly the voluntary contributions necessary to
ensure that the Global Mechanism can begin operating on 1
January 1998 on the basis of Section A of Appendix I of
document ICCD/COP(1)/5 and continue effective operations on
the basis of the memorandum of understanding referred to in
paragraph 3 above after its adoption by the second session of
the COP;
8. Reiterates that, in accordance with article 21, paragraph 7 of
the Convention, the COP shall, at its third ordinary session,
review the policies, operational modalities and activities of the
Global Mechanism and, on the basis of this review, shall consider
and take appropriate action.”
132. As can be seen from paragraph 4(a) of the foregoing decision of the Conference of
the Parties, one of the terms for housing the Global Mechanism in the Fund is “the
separate identity of the Global Mechanism within the housing organization.” In
other words, it never was the intention of the Conference of the Parties to legally
sever the Global Mechanism from the Convention and to collapse it into the Fund,
which is referred to merely as “the housing organization.” In this regard it is worth
recalling that in its Judgment No. 1033, when dealing with a comparable situation
involving the WIPO and the UPOV, the Tribunal held that UPOV “has legal
personality of its own and the administrative arrangements provided for in its
117
Agreement with WIPO do not impair its distinct identity.”
133. In its Judgment No. 2867, the Tribunal expressly acknowledged that “[t]he
argument with respect to the Tribunal’s jurisdiction is based, in the main, on the
proposition that ‘[t]he Fund and the Global Mechanism are separate legal
118
entities.’” Through this acknowledgment, the separateness question, including
the Tribunal’s decision on that question, falls squarely within the scope of Article
XII of the Statute of the Tribunal and he nce is properly raised in the present
proceeding.
134. Having correctly identified the Conference of the Parties as “the supreme body of
the Convention”, and “not an organ of the Fund,” and having accepted the Fund’s
argument that “the Global Mechanism is an integral part of the Convention
117
ILOAT Judgment No. 1033 (Consideration 1033).
118ILOAT Judgment No. 2867, Consideration 5, first sentence.
57 119
accountable to the Conference,” which the Tribunal acknowledged “established
the Global Mechanism,” 120 it is difficult to understand how the Tribunal could still
“treat the Global Mechanism as part of the Fund” and conclude 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
121
decisions taken by the Global Mechanism are, in law, decisions of the Fund.” If
the Conference of the Parties is “not an organ of the Fund” and is the entity to
which the Global Mechanism is accountable under Article 21, paragraph 4, of the
Convention — indeed, “fully accountable” under Section III.A.1 of the
Memorandum of Understanding —, the view that the Global Mechanism is part of
the Fund, or that it should be assimilated to the Fund for administrative and legal
purposes, is untenable.
135. The object and purpose of the Memorandum of Understanding between the
Conference of the Parties and the Fund was “to facilitate the effectiveness of the
Global Mechanism in assisting the Parties to implement the Convention” 122 by
123
having the Fund serve as the “housing institution” for the Global Mechanism in
support of “the modalities and administrative operations of the Global
124 125
Mechanism.” If the Global Mechanism were “part of the Fund,” there would
119
Ibid., Consideration 5.
120
Ibid., para. A. See also ibid., Consideration 2
121Ibid., Consideration 7.
122Memorandum of Understanding, Section IV.B. In its decision selecting IFAD to house the Global
Mechanism, the Conference of the Parties also referred to the overall goal “to enhance the
effectiveness of Convention implementation.” Decision 24/COP.1, doc. ICCD/COP(1)/11/Add. 1, p.
68.
123
Memorandum of Underrstanding, Section I. The Tribunal accepts that the “Global Mechanism is
housed by IFAD.” ILOAT Judgment No. 2867, para. A. IFAD was selected “to house the Global
Mechanism” by the COP’s Decision 24/COP.1. See doc. ICCD/COP(1)/11/Add.1 (“1. Decides to select
IFAD to house the Global Mechanism ….”).
124
Memorandum of Understanding, title and first pa ragraph. The Tribunal accepts that the Global
Mechanism’s “modalities and administrative operations are set out a Memorandum of Understanding
… signed between the Conference of the Parties and IFAD on 26 November 1999.” ILOAT Judgment
No. 2867, para. A. The second sentence of Section I of the Memorandum of Understanding refers to
the role assumed by IFAD under the Memorandum of Understanding in the following terms: “As the
housing institution, the Fund will support the Global Mechanism in performing these functions [i.e.,
the functions referred to in the first sentence] inthe framework of the mandate and policies of the
Fund.” The Memorandum of Understanding clearly and repeatedly identifies the Fund as being merely
“an organization to house” the Global Mechanism. See, e.g., first recital (“an organization to house”);
third recital (“the organization to house”); Section I (“As the housing institution, the Fund …”). The
Memorandum of Understanding in multiple places al so underlines the purely supporting role that
IFAD, and particularly the President of IFAD, assumed under the Memorandum of Understanding. See
Memorandum of Understanding, Section III.B in fine (“supporting the Global Mechanism”). The
Memorandum of Understanding also underscores the fact that IFAD is not the only organization
supporting the Global Mechanism. See Memorandum of Understanding, third recital (“the organization
to house the Global Mechanism shall, as the lead or ganization, fully cooperate with the United Nations
Development Programme (UNDP) and the Worl d Bank and other relevant international
58 have been no need for a Memorandum of Understanding between the Conference
of the Parties and the Fund. It makes no sense for the Conference of the Parties
to enter into an arrangement (Memorandum of Understanding) with an external
126
“organization to house the Global Mechanism” (i.e., IFAD) if the Global
Mechanism is not separate from IFAD. Therefore, the Tribunal’s findings on the
key issue of separateness also go against the object and purpose of the
Memorandum of Understanding.
136. The Memorandum of Understanding makes clear that it merely addresses “the
127
modalities and administrative operations” of the Global Mechanism. In other
words, it does not deal with the legal position per se of the Global Mechanism
other than to describe the effects of the housing arrangement for the Global
Mechanism and the Fund. As a consequenc e, one must be careful in drawing any
conclusions regarding the Global Mechanism’s legal position based on the
Memorandum of Understanding alone. But that is essentially what the Tribunal did
in Judgment No. 2867 in order to uphold it s jurisdiction over the acts of the
President of IFAD taken pursuant to his special authority under the Memorandum
of Understanding, and over the Fund itself.
137. Having assigned a central place to the words “an organic part of the structure of
the Fund” in Section III.A of the Memorandum of Understanding in support of its
key finding 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,” 128 it is
unclear why the Tribunal did not turn to IFAD’s offer document 129 in support of its
interpretation of the words used in Section III.A. IFAD’s offer document also
organizations”); Section III.B (referring to “UNDP and the World Bank” as “other relevant
organizations … supporting the Global Mechanism.”). For purposes of the separateness of IFAD and
the Global Mechanism, the juxtaposition between the first and second sentences of Section I of the
Memorandum of Understanding is highly significant. Whereas the first sentence refers to the Global
Mechanism’s mandate and functions in relation to th e Conference of the Parties, the second sentence
identifies IFAD merely as a “housing institution” in “support” of functions assigned to the Global
Mechanism by the Conference of the Parties. IFAD is in no way charged with performing the functions
assigned to the Global Mechanism by the Conference of the Parties. Under the Memorandum of
Understanding, IFAD merely has pl edged its support for those functions, which are extraneous to the
functions assigned to IFAD and its President under the Agreement Establishing IFAD.
125ILOAT Judgment No. 2867, Consideration 7.
126Memorandum of Understanding, Preamble.
127
Ibid., Title, Preamble.
128See ILOAT Judgment No. 2867, Consideration 7.
129Appendix II to ICCD/COP(1)/5 (25 June 1997).
59 refers to the separate mandate and functions of IFAD and the Global Mechanism.
It states that “the host must ensure that housing the GM is compatible with its
[i.e., the host’s] mandate and brings synergetic effects through its own operations
and those of the GM.” 130 The reference to the Fund’s “own operations and those
of the GM” underscores the separateness of the two entities. Those words are
followed by the following sentence in the offer document: “Thus, while the GM
would have a separate identity and would be accountable to the COP, it would
nevertheless be an organic part of the structure of IFAD.” It is clear that these
words in the offer document were the source for Section II.A of the Memorandum
of Understanding, which reads: “While the Global Mechanism will have a separate
identity within the Fund, it will be an organic part of the structure of the Fund
directly under the President of the Fund.” The words “directly under the President
of the Fund” were added to the text of the Memorandum of Understanding and
must be read in light of the object and purpose of the Memorandum of
Understanding, which is an arrangement regarding “the modalities and
administrative operations of the Global Mechanism.” The aspect of accountability,
which was referred to in the offer document immediately after the reference to the
Global Mechanism’s “separate identity,” is dealt with separately in the
Memorandum of Understanding, namely, in Section III.A. In its decision selecting
the Fund to house the Global Mechanism, the Conference of the Parties requested
the Permanent Secretariat of the Convention and the Fund in developing the
Memorandum of Understanding “to take fully into account … the following:” “(a)
the separate identity of the Global Mechanism within the housing organization; (b)
131
the measures to be taken to assure full accountability … to the COP.” All of
these public documents were available to the Tribunal.
138. It should also be pointed out that the Global Mechanism has its own budget
separate from the Fund’s. Section II.B of the Memorandum of Understanding,
which deals with the “resources of the Global Mechanism,” identifies the various
sources of the Global Mechanism’s budget, each of which has its own account: (a)
the “Core Budget Administrative Account,” comprising “allocations of the core
budget of the Convention by the COP to meet the administrative and operational
expenditures of the Global Mechanism;” (b) the “Voluntary Contributions
Administrative Expenses Account,” comprising amounts contributed voluntarily by
various donors; and (c) the “Special Resources for CCD Finance (SRCF) Account,”
comprising amounts made available for the Global Mechanism’s “functioning and
activities from bilateral and multilateral resources through trust fund(s) and/or
equivalent arrangements established by the Fund.” This provision demonstrates
that the Global Mechanism is primarily f unded by the Conference of the Parties,
130
Ibid., p. 20, para. 37.
131Decision 24/COP.1, doc. ICCD/COP(1)/11/Add. 1, p. 68.
60 and not the Fund. The Fund’s role is limited to establishing the arrangements
referred to in Section II.B(c), holding the various accounts for the Global
Mechanism, and providing “a grant contribution as part of the initial capitalisation
of the SRCF Account.” It is the responsibility of the Conference of the Parties, not
the Fund, to make “allocations of the core budget of the Convention.” 132 To hold
certain accounts for the Global Mechanism under an arrangement (Memorandum
of Understanding) concerning “modalities and administrative operations” entered
into with the Conference of the Parties, the supreme body of the Convention under
which the Global Mechanism was established, does not make IFAD the “funding”
organization for the Global Mechanism in addition to being its “housing”
organization.
139. According to Section III.A.6 of the Memorandum of Understanding, the
“Conference,” not the Fund, “will approve the … budget of the Global Mechanism.”
Under the heading “Accountability to the Conference,” Section III.A. identifies
distinct, limited roles for the IFAD President and for IFAD in the preparation and
approval of the proposed budget of the Global Mechanism. According to Section
III.A.4, the Managing Director of the Gl obal Mechanism will be responsible for
preparing the budget of the Global Mechanism, “which will be reviewed and
approved by the President of the Fund [not ‘by the Fund’] before being forwarded
to the Executive Secretary of the Conventi on for consideration in the preparation
of the budget estimates of the Conventi on.” According to Section III.A.5, the
“budget estimates of the Global Mechanism … will be shown in a separate section
of the Convention budget,” and not IFAD’s budget. Section III.A.6 provides that it
is “[t]he Conference,” and not IFAD or the IFAD President, that “will approve the …
budget of the Global Mechanism.” Section III.A.7 limits the Fund’s role to
providing “the Conference with an audited financial statement of the Core Budget
Administrative Account in accordance with the Fund’s normal audit procedures.”
Thus, the Fund provides the external audit for the Global Mechanism. This is not
133
unusual in the practice of international organizations.
140. In the Tribunal’s view, the fact that the “P resident of the Fund is to review the
programme of work and the budget prepared by the Managing Director of the
Global Mechanism before it is forwarded to the Executive Secretary of the
Convention for consideration” in Section III.A.4 of the Memorandum of
Understanding must lead to the conclusion that the words “an organic part of the
structure of the Fund” in Section II.A of the Memorandum of Understanding must
132
Memorandum of Understanding, Section II.B(a) (emphasis added).
133See H.G. Schermers and N.M. Blokker, International Institutional Law , ed. (Boston/Leiden:
Martinus Nijhoff Publishers, 2003), pp. 709, 710 (“In practice, each organization chooses its own
auditors.”).
61 be interpreted to mean 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
134
in relation to staff in the Global Mechanism are, in law, decisions of the Fund.”
As the previous paragraph makes clear, the Tribunal misinterpreted Section III.A.4
by confusing the limited intermediary and supporting role assumed by the IFAD
President under the Memorandum of Understanding with the final approval power
of the Conference of the Parties, as confirmed in Section III.A.6. That
intermediary and supporting role also informs the meaning of the words “on behalf
of the President of the Fund” in Sectio ns III.A.2 and III.B of the Memorandum of
Understanding. Clearly, the words “on behalf of” must be read as “through:” it is
through the IFAD President that the Managi ng Director of the Global Mechanism is
to submit “reports to the Conference” 135and “a report to each ordinary session of
the Conference on the activities of the Global Mechanism.” 136
141. The fact alone that the Global Mechanism has its own budget separate from IFAD’s
and receives its primary funding from sources other than IFAD should have
prevented the Tribunal from treating the Global Mechanism “as part of the
Fund.” 137
142. If there were any doubt with regard to the budget of the Global Mechanism being
separate from IFAD’s, Section VI of the Memorandum of Understanding provides
unequivocally that “[a]ny direct costs and associated service charges [are]
reimbursable to IFAD,” as “reflected in the budget of the Global Mechanism.”
IFAD’s offer document further clarifies that “[i]t is understood that the
administrative and operating budget of the GM would be financed by the Parties to
the CCD, and this would be reflected in the hosting arrangement to be agreed
upon with the COP” and “[t]he COP is expected to cover the costs of the GM’s
138
administrative and operating budget related to its normal activities.”
134
ILOAT Judgment No. 2867, Consideration 7.
135
Memorandum of Understanding, Section III.A.2. This interpretation is supported by the
Conference of the Parties’ Decision 25/COP.1 entitled “Collaborative institutional arrangements in
support of the Global Mechanism,” the Annex of which provides in paragraph 17: “The GM would
report to the COP through the Head of the Housing Organi zation” (emphasis added). Doc.
ICCD/COP(1)/11/Add.1, p. 79.
136Memorandum of Understanding, Section III.B.
137
ILOAT Judgment No. 2867, Consideration 7.
138“Global Mechanism: Compilation of Revised O ffers of International Fund for Agricultural
Development (IAF) and United Nations Development Programme (UNDP),” doc. ICCD/COP(1)/5 (25
June 1997), pp. 22-23, paras. 46-47.
62 143. Thus, when the Tribunal observes that “the Global Mechanism is not financially
autonomous” and that “the Conference authorises the transfer of resources to the
Fund for the operating expenses of the Global Mechanism,” 139 the text of Section
II.B of the Memorandum of Understandin g should have prevented the Tribunal
from concluding 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.” 140
Section II.B, the Memorandum of Understanding’s key provision concerning the
budget of the Global Mechanism, should have led the Tribunal to reach the
opposite conclusion. If there were any doubt about the meaning of the words “an
organic part of the structure of the Fund” in Section II.A of the Memorandum of
Understanding, Section II.B leaves no doubt that IFAD’s role is limited to
supporting “the modalities and administrative operations” of the Global Mechanism
and does not replace the Conference of the Parties as the entity that is primarily
responsible for the Global Mechanism under the Convention. The Memorandum of
Understanding contains no wording to the effect that the Conference of the Parties
was transferring its primary institutional responsibility for the Global Mechanism to
IFAD under the Memorandum of Understanding. To the contrary, the Memorandum
of Understanding states explicitly that the Global Mechanism carries out its
141
mandate “under the authority and guidance of the Conference,” performs the
142
functions described in an annex to a Decision of the Conference, depends for its
budget primarily on “the core budget of the Convention” through allocations made
143
“by the COP,” and otherwise “will function under the authority of the
144
Conference and be fully accountable to the Conference.”
C. Lack of jurisdiction ratione personae : The Global Mechanism and the
Conference of the Parties of the UNCCD have not recognized the
jurisdiction of the Tribunal
144. At this stage it is worth repeating that the competence of the Tribunal is defined in
Article II, paragraphs 1 and 5, of the Statute as follows:
139Ibid.
140ILOAT Judgment No. 2867, Consideration 7.
141
Memorandum of Understanding, Section I.
142Ibid.
143
Ibid., Section II.B(a).
144Ibid., Section III.A.1.
63 “1. The Tribunal shall be competent to hear complaints alleging
non-observance, in substance or in form, of the terms of
appointment of officials of the International Labour Office, and of
such provisions of the Staff Regulations as are applicable to the
case.
…
5. The Tribunal shall also be competent to hear complaints
alleging non-observance, in substance or in form, of the terms of
appointment of officials and of provisions of the Staff Regulations
of any other international organization meeting the standards set
out in the Annex hereto which has addressed to the Director-
General a declaration recognizing, in accordance with its
Constitution or internal administrative rules, the jurisdiction of the
Tribunal for this purpose, as well as its Rules of Procedure, and
which is approved by the Governing Body.”
145. By virtue of these provisions, the Tribunal is “competent to hear complaints
alleging non-observance, in substance or in form, of the terms of appointment of
officials and of the Staff Regulations” of the organizations which have recognized
the jurisdiction of the Tribunal. According to Article II, paragraph 6(a), of the
Statute, the Tribunal is also open to the official even if his/her employment has
ceased, and to any person on whom the official’s rights have devolved on his/her
death; or to any other person who can show that he/she is entitled to some right
under the terms of appointment of a deceased official or under the provisions of
the Staff Regulations on which the official could rely (Article II, paragraph 6(b)).
146. Clearly, by the terms of Article II of its Statute, the Tribunal’s jurisdiction does not
extend to organizations or entities that have not recognized its jurisdiction. The
145
Tribunal’s own case law confirms this. In Molla, without addressing the merits,
146 147
and relying on Haile-Mariam and on Mulate, the FAO asked that the
complaint be dismissed on the grounds that the complainant's special service
148
agreement was with the United Nations, not with the FAO; that his claim, if any,
to redress lay against the United Nations; and that the Tribunal therefore lacked
competence. The Tribunal accepted FAO’s submission that the complaint was not
145Thierry d’Hubert, Les principes généraux selon le Tribunal administrative de l’OIT (Paris, Editions
A. Pedone, 2009), 275.
146ILOAT Judgment No. 1285, delivered on 14 July 1993.
147
ILOAT Judgment No. 1286, delivered on 14 July 1993.
148The United Nations has not recognized the jurisdiction of the ILOAT.
64 149
receivable because the complainant was never under contract with it. The
Tribunal, having held in Haile-Mariam and Mulate thatitlackedcompetenceto
entertain a complaint against the FAO by a party to a special service agreement
with the United Nations, agreed and thus declined to exercise jurisdiction. As the
Tribunal itself ruled in a judgment delivered on the very same day that it delivered
Judgment No. 2867, if it finds that the dispute brought to it is in fact a dispute
with an entity which has not recognized its jurisdiction, the complaint must be
dismissed:
“It is, however, for the Tribunal to determine whether it is
competent to hear a dispute, and the Tribunal is by no means bound
in this respect by the opinions expressed by the parties in the course
of the proceedings. Article II, paragraph 5, of its Statute makes it
clear that the Tribunal may hear only disputes between officials and
the international organisations employing them. In the instant case
it finds, in the light of considerations 3 and 4 above, that the dispute
is not between the complainants and the international organisation
EUTELSAT, but between them and Eutelsat S.A., a limited company
governed by French law. Consequently, the dispute between these
parties does not fall within the Tribunal’s jurisdiction and the
complaints, as well as the Organization’s counterclaims, must be
150
dismissed.”
147. In this regard it is important to note that as at the date on which the Complainant
filed her complaint, the jurisdiction of the Tribunal was recognized by no fewer
than 58 organizations, of which 12 are spec ialized agencies of the United Nations,
including the Fund, and four related UN organizations, as well as 42 organizations
not pertaining to the UN system. The jurisdiction of the Administrative Tribunal
has been recognized by the following organizations (in order of recognition):
1. International Labour Organization (ILO), including the
International Training Centre
2. World Health Organization (WHO), including the Pan American
Health Organization (PAHO)
3. International Telecommunication Union (ITU)
149
ILOAT Judgment No. 1337, delivered on 13 July 1994.
150ILOAT Judgment No. 2900, adopted on 13 November 2009, and delivered in public on 3 February
2010 (Consideration 9); see also ILOAT Judgements Nos. 433 (1980), 650 (1986) and 803 (1987). In
the same sense: C.F. Amerasinghe, Jurisdiction of Specific International Tribun(Leiden/Boston:
Martinus Nijhoff Publishers, 2009), p. 317.
65 4. United Nations Educational, Scientific and Cultural
Organization (UNESCO)
5. World Meteorological Organization (WMO)
6. Food and Agriculture Organization of the United Nations
(FAO), including the World Food Programme (WFP)
7. European Organization for Nuclear Research (CERN)
8. World Trade Organization (WTO)
9. International Atomic Energy Agency (IAEA)
10. World Intellectual Property Organization (WIPO)
11. European Organisation for the Safety of Air Navigation
(Eurocontrol)
12. Universal Postal Union (UPU)
13. European Southern Observatory (ESO)
14. Intergovernmental Council of Copper Exporting Countries
(CIPEC) (until 1992)
15. European Free Trade Association (EFTA)
16. Inter-Parliamentary Union (IPU)
17. European Molecular Biology Laboratory (EMBL)
18. World Tourism Organization (UNWTO)
19. European Patent Organisation (EPO)
20. African Training and Research Centre in Administration for
Development (CAFRAD)
21. Intergovernmental Organisation for International Carriage by
Rail (OTIF)
22. International Center for the Registration of Serials (CIEPS)
23. International Office of Epizootics (OIE)
24. United Nations Industrial Development Organization (UNIDO)
66 25. International Criminal Police Organization (Interpol)
26. International Fund for Agricultural Development (IFAD)
27. International Union for the Protection of New Varieties of
Plants (UPOV)
28. Customs Co-operation Council (CCC)
29. Court of Justice of the European Free Trade Association (EFTA
Court)
30. Surveillance Authority of the European Free Trade Association
(ESA)
31. International Service for National Agricultural Research
(ISNAR) (until 14 July 2004)
32. International Organization for Migration (IOM)
33. International Centre for Genetic Engineering and Biotechnology
(ICGEB)
34. Organisation for the Prohibition of Chemical Weapons (OPCW)
35. International Hydrographic Organization (IHO)
36. Energy Charter Conference
37. International Federation of Red Cross and Red Crescent
Societies
38. Preparatory Commission for the Comprehensive Nuclear-Test-
Ban Treaty Organization (CTBTO PrepCom)
39. European and Mediterranean Plant Protection Organization
(EPPO)
40. International Plant Genetic Resources Institute (IPGRI)
41. International Institute for Democracy and Electoral Assistance
(International IDEA)
42. International Criminal Court (ICC)
43. International Olive Oil Council (IOOC)
67 44. Advisory Centre on WTO Law
45. African, Caribbean and Pacific Group of States (ACP Group)
46. Agency for International Trade Information and Cooperation
(AITIC)
47. European Telecommunications Satellite Organization
(EUTELSAT)
48. International Organization of Legal Metrology (OIML)
49. International Organisation of Vine and Wine (OIV)
50. Centre for the Development of Enterprise (CDE)
51. Permanent Court of Arbitration (PCA)
52. South Centre
53. International Organisation for the Development of Fisheries in
Central and Eastern Europe (EUROFISH)
54. Technical Centre for Agricultural and Rural Cooperation ACP-EU
(CTA)
55. The International Bureau of Weights and Measures (BIPM)
56. ITER International Fusion Energy Organization (ITER
Organization)
57. Global Fund to Fight AIDS, Tuberculosis and Malaria
58. International Centre for the Study of the Preservation and
Restoration of Cultural Property (ICCROM)
148. The Court is invited to take note of the fact that neither the Global Mechanism nor
the Conference of the Parties is listed as an organization having recognized the
jurisdiction of the Tribunal. While the Tribunal acknowledged that IFAD took the
position that “neither the COP nor the GM has recognised the jurisdiction of the
151
Tribunal,” it neglected to address this point explicitly in its ruling and proceeded
to exercise jurisdiction.
151ILOAT Judgment No. 2867, para. C.
68 D. Lack of jurisdiction ratione personae : The Global Mechanism and the
Conference of the Parties of the UNCCD have not been included in the
Fund’s recognition of the jurisdiction of the Tribunal
149. The Court is equally invited to take note of the fact that, unlike the case of the
WHO with respect to Pan-American Health Organization (PAHO) and the Food and
Agriculture Organization (FAO) with respect to the World Food Programme (WFP),
or as was done by the Universal Postal Union (UPU) with regard to the UPU
Provident Scheme, a foundation established under Swiss National law, 152 neither
when the Fund recognized the jurisdiction of the Tribunal, nor at any time
thereafter has the Fund included any of the entities that it hosts, or with which it
has concluded an agreement concerning its hosting of entities, in its recognition of
the jurisdiction of the Tribunal. The letter dated 4 October 1988 from the President
of IFAD to the Director-General of the International Labour Organization reads in
pertinent part as follows:
“The Executive Board of the International Fund for Agricultural
Development, at its meeting held from 26 to 28 April 1988, adopted
a decision authorising the President of the Fund to recognise the
Jurisdiction of an Administrative Tribunal over disputes between the
Fund and its employees.
In accordance with that decision and with Article II, paragraph 5, of
the Statute of the Administrative Tribunal of the International Labour
Organisation and with the Annex to that Statute, I have the honour
to inform you that the Fund recognises the Tribunal’s competence to
hear complaints alleging non-observance, in substance and in form,
of the terms of employment of staff the Fund and of the provisions
of the Personnel Policies Manual which are applicable to them and
153
the Fund likewise accepts the Tribunal’s Rules of Procedure”
150. It follows from the foregoing that the recognition of the Tribunal’s jurisdiction by
the Fund does not extend to acts of either the Global Mechanism and its officials or
those of the Conference of the Parties of the UNCCD.
151. While the Tribunal acknowledged that IFAD took the position that “IFAD’s
acceptance of the jurisdiction of the Tribunal [under Article II, paragraph 5, of its
Statute] does not extend to entities that it may host pursuant to international
agreements with third parties” such as the Conference of the Parties, 154 it
152See ILOAT Judgments Nos. 1451 of 6 July 1965 and 2203 of 3 February 2003.
153
Documents II.1.
154ILOAT Judgment No. 2867, para. C.
69 neglected to address this point explicitly in its ruling and proceeded to exercise
jurisdiction.
E. The conduct complained of is outside the Tribunal’s jurisdiction and in any
event is not attributable to the Fund
1. The general rule of the attribution of conduct to international
organizations
152. The Global Mechanism and the Conference of the Parties are “environmental
entities,” established by treaties that at first sight appear to be almost complete
international organizations, with at least one political organ (a meeting or
Conference of the Parties), some expert organs or an advocacy organ, and a
secretariat – except that these secretariats and/or advocacy organs are attached
to (i.e. hosted by) or form part of the secretariat of an existing international
organization or of a quasi-autonomous body of such an international
organization. 155These treaties seem to be deliberatively vague on the question as
to the legal nature of these entities. 156A definitive answer to the question is not
called for in the present case. It will suffice to answer the question whether the
Global Mechanism is or is not a part of the Fund or has otherwise acted as an
agent of the Fund.
153. International organizations are abstract (f ictional) entities. The same is true for
corporate entities established under domestic law and even more for the State
itself. Conduct always originates in individuals, i.e. natural persons. The
“normative” operation of attribution is thus required to bridge the gap between the
physical actor and the subject of international law. In the law of State
responsibility, as codified in the International Law Commission’s Articles on the
Responsibility of States for Internationally Wrongful Acts, in particular Articles 4
and 7, the conduct of acting individuals is attributed to the State automatically
when these natural persons are connected to the State through an institutional or
organic link. It is clearly implied in Arti cle 8 of the aforementioned Articles that
absent such an institutional or organic link, acts of individuals are only
exceptionally attributed to the State when a control link can be established.
154. This simplified description of the basic avenues for attribution may disregard
certain specific cases of attribution, but it sets out the fundamental distinction,
which shall prove to be conceptually useful: if the acting entity is a State organ,
155P. Szasz, “The Complexification of the United Nations System,” 3Max Planck UNYB (1999), pp. 1-
57, at 30-35, in particular p. 32.
156
See J.E. Alvarez, International Organizations as Law-makers (Oxford University Press, 2005), pp.
136-137.
70 the act is automatically attributable. Control over the conduct is not just
presumed; it is irrelevant. If the acting entity is not an organ, then the only way in
which the conduct can be attributed is on the basis of a showing that the specific
conduct in question took place under the control of the State.
155. When it comes to the attribution of conduct to international organizations, similar
considerations apply in the first instance. If an international organization’s organ is
acting, attribution is automatic; if it is not an organ, a control link must be
established. Moreover, as will be explained below, given that international
organizations are entities with a determined scope, whether certain conduct is to
be attributed to an organization will require the additional element of functionality.
156. When an international organization undertakes actions, it will normally act through
its “constitutional” organs, i.e. the organs identified in its constituent instrument.
Sometimes international organizations also enlist the services of third parties. This
makes it important to answer the question of what constitutes an organ of an
international organization. Several parts of the work of the International Law
Commission underscore an awareness that the qualification of a body as an “organ
of an international organization” bears significant legal consequences under the
various segments of international law. However, with the exception rather
rhetorically phrased in Article 1, paragraph 4, of the 1975 Vienna Convention on
the Representation of States in their Relations with International Organizations ,
157
neither a definition nor criteria to distinguish are provided . In its commentary
on the Draft articles on the Representati on of States in their Relations with
International Organizations, the International Law Commission explains that the
term "organ," as defined in Article 1, sub-paragraph 4, applies only to bodies in
158
which States are members. The Commission has divided the sub-paragraph into
two sub-sections concerning, respectively, "any principal or subsidiary organ of an
international organization" and "any commission, committee or sub-group of any
such organ." This was done in order to make clear that the expression "in which
States are members" applies to both sets of bodies. It clarified that the expression
excludes from the scope of the Draft articles bodies composed of individual experts
who serve in a personal capacity, as it deemed that this was necessary in order to
limit the expression to the aspects dealt with in the 1975 Convention. The
Commission also stressed that the term, as used, would not exclude the somewhat
157Article 1 (Use of terms) (4) of the 1986 Vienna Convention states that “organ” means:(a) any
principal or subsidiary organ of an international organization, or (b) any commission, committee or
subgroup of any such organ, in which States are members.
158Draft articles on the Representation of States in their Relations with International Organizations
with commentaries (1971),
http://untreaty.un.org/ilc/texts/instruments/english/commentaries/5_1_1….
71 exceptional case when an organ comprises both States and individuals as
members. 159
157. Obviously, such a narrow definition, which excludes the chief executive officer of
an organization, the general secretariat, and other bodies composed of persons
elected or appointed on a personal basis, can only be suitable in the context of the
representation of States in their relations with international organizations. Said
definition certainly would not be suitable for purposes of the law of international
responsibility. In that branch of international law the question of what constitutes
an organ of an international organization is critical in the context of attribution of
conduct to States and international organizations, respectively.
158. With regard to the former, Article 13 of the Articles on State Responsibility
adopted on first reading by the International Law Commission stated that the
conduct of an organ of an international organization acting in that capacity shall
not be considered as an act of a State under international law by reason only of
the fact that such conduct has taken place in the territory of that State or in any
other territory under its jurisdiction. The commentary to Article 13 explained that
draft article 13 was not to be taken as defining the responsibility of international
organizations or the problems of attribution which such responsibility presents. It
merely affirms that the conduct of organs of international organizations acting in
that capacity is not attributable to a State by reason only of the fact that such
conduct has taken place in the territory of the State in question or in some other
territory under its jurisdiction. In the event, no provision corresponding to Article
13 appears in the draft articles adopted on second reading. Instead, Article 57
(responsibility of an international organization) provides that these articles are
without prejudice to any question of the responsibility under international law of
an international organization, or of any State for the conduct of an international
organization. The International Law Commission explained that Article 57 is a
saving clause which reserves two related issues from the scope of the articles,
namely (a) any question involving the responsibility of international organizations,
and (b) any question concerning the responsibility of any State for the conduct of
an international organization.
159. Thus, for both questions the issue of which conduct is to be considered a conduct
of an international organization is critical. Indeed, at the 15th Meeting of the Sixth
Committee (2003) during the 58th session of the UN General Assembly this was
emphasized by the United Kingdom representative who made the following
statement with regard to the concept of an organ of an international organization:
159Ibid.
72 “With regard to the questions the Commission had asked
governments to address, he said the concept of an “organ of an
international organization” was central. How did one determine
what an organ was? Did it include any person or entity with the
status of organ in accordance with the “rules of the organization”?
There were obvious differences between the internal law of a State
and the rules of an organization. In the case of an organization,
there wasn’t necessarily a body with the ultimate power to change
the rules or interpret them. What if there were a difference of
opinion on whether an entity was an organ for the purpose of the
articles? Who would decide? The third question, on the extent of
responsibility with regard to peace-keeping, forces illustrated the
sensitivity of the attribution question.” 160
160. On the other hand, the Japanese representative saw matters as less complicated.
He considered that with regard to an organ of an international organization, there
does not seem to be much problem in assuming that in most cases an organ of the
organization would be identified and defined by the rules of that organization.
Therefore he deemed that a certain reference on the "rules of the organization"
would be useful as an element in consider ing a general rule on the attribution of
conducts to international organizations. 161 It would seem that the latter view is
shared by the Special Rapporteur on respon sibility of international organizations,
who suggested the following wording for general rule on attribution of conduct to
an international organization, 162 which was adopted by the International Law
Commission at its 56 thsession: 163
“1.he conduct of an organ or agent of an international
organization in the performance of functions of that organ or agent
shall be considered as an act of that organization under
international law whatever position the organ or agent holds in
respect of the organization.
160
Fifty-eighth General Assembly Sixth Committee 15th Meeting (AM), Press Release GA/L/3239,
28/10/2003
161
Mr. Yukihiro Wada, Permanent Mission of Japan, On Item 152, "Report of the International Law
Commission (Diplomatic Protection)", 29 October 2003,
www.un.int/japan/statements/wada031029.html
162Giorgio Gaja, Special Rapporteur, Second Report on Responsibility of International Organizations,
International Law Commission, Fifty-fifth session (2004), UN Doc. A/CN.4/541.
163UN Doc. A/CN.4/L.648, 27 May 2004, ILC, RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS,
Titles and texts of the draft articles 4, 5, 6, and 7 adopted by the Drafting Committee.
73 2. For the purposes of paragraph 1, the term “agent” includes
officials and other persons or entities through whom the
organization acts.
3. Rules of the organization shall apply to the determination of
the functions of its organs and agents.
4. For the purpose of the present draft article, “rules of the
organization” means, in particular: the constituent instruments;
decisions, resolutions and other acts taken by the organization in
accordance with those instruments; and established practice of the
organization.”
161. It is to be noted that in the foregoing text agents and organs are placed on the
same footing for purposes of the general rule regarding the attribution of conduct.
This is logical because in many cases international organizations engage the
services of third parties, whether non-staff individuals, other organizations,
business enterprises or even States, to act on their behalf. It is mainly for this
reason that the general rule of attribution of conduct to international organizations
does not solely refer to “organs” of the organization, as is the case with the
general rule of attribution to States. Rather, it also refers to “agents” of the
international organization. Thus, Article 5 of the ILC’s Draft Articles on the
Responsibility of International Organizations (“Draft Articles”) states as follows:
“Article 5
General rule on attribution of conduct to an international
organization
1. The conduct of an organ or agent of an international organization
in the performance of functions of that organ or agent shall be
considered as an act of that organization under international law
whatever position the organ or agent holds in respect of the
organization.
2. Rules of the organization shall apply to the determination of the
functions of its organs and agents.”
162. It is important to underline that the term “agent” has been given a special
meaning by the Court:
“The Court understands the word ‘agent’ in the most liberal sense,
that is to say, any person who, whether a paid official or not, and
whether permanently employed or not, has been charged by an
74 organ of the organization with carrying out, or helping to carry out,
one of its functions - in short, any person through whom it acts.” 164
163. It appears that the Court understands the term “in the most liberal sense.” An
agent thus is not necessarily an “official” but “any person through whom [the
organization] acts,” i.e. there is no requir ement of any official link in this case for
automatic attribution to take place. Any conferral of power upon someone to act
“on behalf” of the organization would suffice to establish the requisite organic link.
The key point of the foregoing holding in the present proceedings is the phrase
“one of its functions.”
2. The decision of the Managing Director of the Global Mechanism
was not an act carried out in the performance of one of the Fund’s
functions
164. It is recalled that the Tribunal acknowledged, in summarizing the Fund’s challenge
to its jurisdiction, that the Fund’s “submissions relating to the Tribunal’s powers
and jurisdiction” could be broken down into three points, “the third [of which] is
that acts of the Managing Director of the Global Mechanism are not attributable to
the Fund.” 165
165. The essential question in the present case is whether the decision of the Managing
Director of the Global Mechanism not to renew the Complainant’s fixed-term
contract and the subsequent execution of that decision by the President of IFAD is
to be regarded as an act performed as part of the functions of the Fund.
166. Given that an “agent” is a person “through whom [the organization] acts”, it would
appear at first sight that the mere existence of some sort of agreement between
the Conference of the Parties and the Fund should suffice for the establishment of
the agency link. If this is in fact the case, the Global Mechanism becomes an agent
of IFAD without the added complication of the Conference of the Parties retaining
any control over it.
167. However, the very concept of “agent” as defined by the Court in Reparation for
Injuries implies that at least one of the functions of the principal is being
exercised. In other words, if an actor is not acting in the performance of one of the
functions of the organization in question, it cannot be considered an agent of the
organization for purposes of the attribution of conduct. The foregoing makes it
164Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, p. 174, at 177.
165ILOAT Judgment No. 2867, Consideration 8.
75 necessary to examine, on the one hand, th e functions of the Global Mechanism as
a UNCCD body and, on the other hand, those of the Fund.
168. The point of departure for answering this question is the principle of specialty. Like
any international organization with legal personality, the Fund is entitled to
exercise the powers assigned to it by the Agreement Establishing IFAD and which
are necessary to achieve the object and purpose of the latter. This means that
even though the power to engage and release staff is inherent in the Fund’s
international legal personality, the Fund’s dealings with the Complainant in the
case decided by the Tribunal would not constitute conduct in the performance of
its own functions if the purpose for which the dealings took place was to perform
the functions of the Global Mechanism rather than those of the Fund.
169. By virtue of its mandate, the Global Mechanism provides advisory services on
finance to developing country Parties to the Convention with a view to assisting
them in up-scaling public finance and private sector investments in sustainable
land management (SLM) and rural development activities. As previously
mentioned, the Global Mechanism was established by Article 21 of the Convention
and commenced its operations in October 1998. As a body of the UNCCD its
mandate is to "increase the effectiveness and efficiency of existing financial
mechanisms … [and] … to promote actions leading to the mobilization and
channelling of substantial financial resources to affected developing-country
Parties.”. The Global Mechanism’s work is based on this mandate and the decisions
of the Conference of the Parties and its approach to resource mobilization are fully
aligned with the 10-Year Strategic Plan and Framework for the Implementation of
the UNCCD (the “10-Year Strategy”), adopted in 2007. In practice, the Global
Mechanism forges partnerships with national institutions to promote inter-
ministerial dialogue that engages the Ministries of the Environment and Agriculture
with the Ministry of Finance. This dialogue centres on priority setting and finance
for Sustainable Land Management (SLM), a matter intrinsically linked to
desertification. The reason for such an approach is to ensure that SLM becomes
more central to budget and financial resource allocation processes. The Global
Mechanism professes that understanding and working within domestic budget
processes increases access to emerging international finance – particularly climate
change finance and resources available to safeguard food security as well as water
166
harvesting and environmentally-induced migration. To perform these functions,
it inter alia engages and releases staff, be it through the hosting agency, such as
the Complainant in the case decided by the Tribunal, or otherwise.
166Global Mechanism Web site, at: http://global-mechanism.org/about-us/what-we-do
76 170. It is to be noted that the functions of the Global Mechanism are entirely different
from those of the Fund. According to Articles 2 and 7, Section 2 of the Agreement
Establishing IFAD, the Fund is an international financial institution, which lends –
and to a lesser extent also grants - money to its developing Member States for the
purpose of agricultural development in those countries. While the rate of success
of the Global Mechanism certainly contributes to countries’ appetite to borrow
resources from IFAD, there can be no question that the functions of the two
institutions are legally different, and that it therefore cannot be said that when
engaging and releasing staff, the Global Mechanism acts as an agent of the Fund
as defined by the Court in Reparation for Injuries. This is made clear by Article I of
the Memorandum of Understanding between the Conference of the Parties and the
Fund:
“2. In carrying out its mandate, under the authority and guidance of
the Conference, the Global Mechanism will, in accordance with
paragraph 2 of Decision 24/COP.1 of the Conference, perform the
functions described in the Annex to that Decision. 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.”
171. This provision makes it clear that the Memorandum of Understanding does not
purport to alter the fact that the Global Mechanism performs functions of the
Convention, and not functions of the Fund. Consequently, while the law on the
responsibility of international organizations presumes that acts of an official of an
international organization are in principle attributable to the organization
concerned, that presumption is not irrefutable. The very notion of dédoublement
fonctionnel in international law 167implies that an international official may have
more than one capacity and, therefore, wh ether his or her acts are attributable to
one subject of international law or the other depends on which function he or she
was exercising. In the present case, apart from the fact that the Managing Director
of the Global Mechanism is not an official of the Fund, even if the opposite were
the case, the acts complained of would still not be attributable to the Fund
because the Managing Director was exercising a function of the Global Mechanism,
168
and not of the Fund. Given that - as the Complainant conceded in the
proceedings before the Tribunal - the Global Mechanism and the Fund are separate
167See G. Scelle, Règles générales du droit de la paix, 46 Recueil des Cours (1933) p. 331 et seq. See
for a discussion of Scelle’s theory A. Cassese, “Remarks on Scelle’s Theory of ‘Role Splitting’
(dédoublement fonctionnel) in International Law,” 1 EJIL (1990), pp. 210 ff.
168
“Complainant has no reason to dispute the se parateness of IFAD and the Global Mechanism”,
Rejoinder, p. 2, A, para. 5. See for the Fund’s reaction, see Surrejoinder, p. 2, para. 6.
77 legal entities; all acts of the Managing Di rector in the exercise of that function
should be attributed to the Global Mechanism, and not to the Fund.
172. Given that it is undisputed that the Managing Director acted in his capacity as
Managing Director of the Global Mechanism in taking the decision of which the
Complainant complained before the Joint Appeals Board and ultimately the
Tribunal, Draft Article 6 of the ILC’s Draft Articles on Responsibility of International
Organizations dictates that his conduct must be considered an act of the Global
Mechanism, casu quo , the Conference of the Parties, under international law.
Therefore, if the complaint alleged “that the Managing Director exceeded his
169
authority in deciding not to renew her [fixed-term] contract,” as was the case
here, and the Tribunal upheld this complaint, which it did, Draft Article 6 should
have led the Tribunal to conclude that the Managing Director’s conduct must be
considered an act of the Global Mechanism/Conference of the Parties, and not of
IFAD. Draft Article 6 could not result in a finding that the Managing Director’s
conduct must be considered an act of IFAD, given that it is undisputed that the
Managing Director acted in his capacity as Managing Director of the Global
Mechanism and not as an IFAD official in deciding not to renew the Complainant’s
fixed-term contract. 170 The Tribunal itself stated that “[t]he question of the
Managing Director’s authority to abolish the complainant’s post depends on
whether, in the circumstances, that course was impliedly prohibited by the terms
of the MOU and the decision of the Conference relating to staffing and budget for
171
the 2006-2007 biennium.”
173. The Tribunal based its very ruling that “[t]he President’s decision of 4 April 2008 is
set aside” 172 on its conclusion that he “erred in law” in not finding that the decision
of the Managing Director “not to renew the complainant’s contract on the ground
of its abolition constituted an error of law.” 173 The Tribunal based the latter
finding directly on its separate finding that “the Managing Director had no
174
authority to abolish the complainant’s post.” There is, however, no support in
169
ILOAT Judgment No. 2867, Considerations 4 and 16.
170
As was explained by the ILC’s Special Rapporteur on Responsibility of International Organizations,
“[t]he key wording ‘in that capacity’ refers to a relation that must exist between the ultra vires
conduct and the functions entrusted to the organ, entity, person or official.” Second Report on
responsibility of international organizations, at 26, para. 57, UN Doc. A/CN.4/541 (2 April 2004).
171
ILOAT Judgment No. 2867, Consideration 13 (emphasis added).
172Ibid., p. 18, operative paragraph, item (1). See also ibid., Consideration 17.
173
Ibid., Consideration 17.
174
Ibid. (“ Because the Managing Director had no authorit y to abolish the complainant’s post, his
decision not to renew the complainant’s contract on the ground of its abolition constituted an error of
law. The President of the Fund erred in law in not so finding when considering her internal appeal. It
78 Article 6 of the ILC’s Draft Articles on Responsibility of International Organizations
for attributing the Managing Director’s alleged error of law to the IFAD President or
the Fund, as can be seen from a ruling in a case where the question was whether
an international organization can be held responsible for harm caused to one of its
staff members by an error of a third party. In its Judgment No. 84, the Asian
Development Bank Administrative Tribunal (ADBAT) 175 refused to hold the Asian
Development Bank responsible for the conduct of a third party, namely the
medical services company to which it outsourced the health care services for its
staff, because it had not been established that the Bank failed in its duty of care in
the selection and the supervision of the company. Although that case did not
directly address the issue of attribution of conduct to an international organization,
the opinion of the ADBAT clearly stands for the principle that for an international
organization to be held responsible for harm caused by a third party, there must
be breach of a primary obligation resting directly on the organization.
3. The Managing Director of the Global Mechanism is not an official of
the Fund
174. In Judgment No. 2867, the Tribunal acknowledged that “[t]he complainant filed an
appeal with the Joint Appeals Board on 27 June 2007 challenging the Managing
Director’s decision of 15 December 2005.” 176 The record indicates that the
Complainant initially did not direct her challenge against the IFAD President or the
Fund, and it was the Managing Director of the Global Mechanism, and not the IFAD
President, who replied to the appeal lodged by the Complainant on 21 September
177
2007. Itistrue,however,that“thePresidentoftheFundinformedthe
complainant that he had decided to reject her appeal” by “a memorandum of 4
178
April 2008” (issued pursuant to his special capacity under the Memorandum of
Understanding between the Fund and the Conf erence of the Parties) and it is this
decision against which the complaint before the Tribunal was directed. However,
the Tribunal itself observed that “[t]he complainant contends that the decision not
to renew her contract was tainted with abuse of authority” on the part of the
179
Managing Director of the Global Mechanism. That decision was taken by the
follows that the President’s decision of 4 April 2008 dismissing the complainant’s internal appeal must
be set aside.” (Emphasis added)).
175
ADBAT Judgment No. 84 ( Chang et al v ADB ), 25 January 2008, text available online:
http://www.adb.org/Documents/Reports/ADBT/ADBT0084.pdf
176
Ibid., para. A, p. 3, first full paragraph (emphasis added).
177See IFAD’s Reply, para. 10 sub (f).
178
Ibid.
179Ibid., para. B, p. 4.
79 180
Managing Director of the Global Mechanism, not the Fund or its President. In
its ruling, the Tribunal acknowledged that a “preliminary question arises as to the
extent to which the Tribunal may review [the] earlier decision” of the Managing
Director not to renew the Complainant’s fixed-term contract, a question that goes
to “the powers and jurisdiction of the Tribunal.” 181 Thus, the Tribunal clearly
understood itself to be sitting in judgment of the earlier decision of the Managing
Director of the Global Mechanism and acknowledged that this raised a preliminary
182
question of “the powers and jurisdiction of the Tribunal.” Accordingly, the
validity of Judgment No. 2867 may legitimately be challenged in a proceeding
derived from Article XII of the Tribunal’s Statute.
175. While Judgment No. 2867 nowhere states unequivocally that the Managing
Director of the Global Mechanism is or was an official or agent of the Fund,
notwithstanding the fact that the Comp lainant had alleged that the Managing
183
Director was an IFAD official in the pleadings submitted to the Tribunal and the
Fund had categorically denied before the Tribunal that he was, 184by stating
generally that “the personnel of the Global Mechanism are staff of the Fund,” 185
the Tribunal in effect concluded that the Managing Director belongs to the staff of
IFAD. The Tribunal apparently came to this conclusion without having investigated
186
independently whether or not the Managing Director was an official of the Fund.
This is surprising, given that Global Mechanism organizational charts set forth in
Attachments 14 and 16 to the complaint featured the Managing Director
prominently. The Tribunal also relied on certain references to the Managing
Director and the President of IFAD in various provisions of the Memorandum of
Understanding in support of its key jurisdictional conclusion that “the Global
Mechanism is to be assimilated to the various administrative units of the Fund for
180
While the Tribunal observes that the Complainant also “alleges that IFAD acted in breach of its
duty of care and good faith,” IFAD did not raise juri sdictional objections to this particular complaint
made by the Complainant before the Tribunal.
181ILOAT Judgment No. 2867, Consideration 1, final sentence.
182Ibid., Consideration 1.
183See Rejoinder, para. 10 (“In fact the Managing Di rector, like the complainant, has an appointment
with IFAD.”).
184See IFAD’s Reply, para. 39 (“the Managing Director of the Global Mechanism is not a staff member
of the Fund within the meaning of Article 6, Sectio n 8 of the Agreement Establishing the International
Fund for Agricultural Development as he is not appointed by the President pursuant to the said
provision, but pursuant to the Memorandum of Understanding with the Conference of the Parties.”).
185ILOAT Judgment No. 2867, Consideration 11.
186As the ICJ has said in this context, “[a] mere allegation by the complainant cannot be sufficient to
cause the Tribunal to accept it for the purpose of examining the complaint.” Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against Unesco , Advisory Opinion, I.C.J.
Reports 1956, p. 77, at 89.
80 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
187
Mechanism are, in law, decisions of the Fund.”
176. The Tribunal could have read in the Fund’s offer document submitted to the
Conference of the Parties 188that the Managing Director of the Global Mechanism
was considered a member of the staff of the Global Mechanism, and not of the
Fund. The offer document contains the following passage: “In addition to a
Management Section, comprising the Managing Director and one administrative
assistant, the GM staff would consist of three teams, one for each programme area
and one for administration and finance.” 189 The words “In addition to” in
conjunction with “the GM staff would consist of” unambiguously clarify that the
Managing Director was always understood to be a member of “the GM staff,” and
not of the IFAD staff.
177. Paragraph 11(f) of the IFAD President’s Bulletin No. PB/04/01 provides further
proof, independently of the Memorandum of Understanding, that the Managing
Director belongs to the staff of the Global Mechanism and not the Fund:
“IFAD and Global Mechanism staff, with the exception of the
Managing Director of the Global Mechanism , shall have the right to
be treated as an internal candidate when applying for vacancies in
the other entity as well as regarding mobility of staff between the
two entities.” (Emphasis added)
178. The distinction between IFAD staff, on the one hand, and “Global Mechanism staff,
with the exception of the Managing Director of the Global Mechanism ,” on the
other hand, is clearly borne out by the text of this provision.
179. Article 6, Section 1 (“Structure of the Fund”), of the Agreement Establishing IFAD
refers in sub-paragraph (c) to “a President and such staff as shall be necessary for
the Fund to carry out its functions.” Apart from the fact that the Global
Mechanism has been assigned its own functions by the Conference of the Parties,
a body which falls outside out of the structure of the Fund and is explicitly
190
acknowledged by the Tribunal “not [to be] an organ of the Fund,” it is clear that
the staff of the Global Mechanism, which includes the Managing Director, is not
187ILOAT Judgment No. 2867, Consideration 7.
188
Appendix II to ICCD/COP(1)/5 (25 June 1997).
189Ibid., p. 21, para. 44.
190ILOAT Judgment No. 2867, Consideration 5 (“the Fund claims, correctly, that the Conference of the
Parties is not an organ of the Fund and that the Global Mechanism is an integral part of the
Convention accountable to the Conference”).
81 “necessary for the Fund to carry out its functions” and for that reason alone
cannot be considered as IFAD staff.
180. According to Section II.D of the Memora ndum of Understanding, the Managing
Director of the Global Mechanism “will be nominated by the Administrator of
UNDP,” and not IFAD’s Governing Council, its Executive Board or its President.
The UNDP is also mentioned in the Preamble and in Sections III.B(c) and IV of the
Memorandum of Understanding, which identify the UNDP as a supporting
organization for the Global Mechanism alongside the Fund and the World Bank.
181. It is only after the UNDP nominates a candidate for appointment as Managing
Director of the Global Mechanism that such candidate is formally “appointed by the
President of the Fund” pursuant to Section II.D of the Memorandum of
Understanding. Significantly, Section II. D. does not use the words “appointed by
the Fund.” By the terms of Section II.D, neither the IFAD President nor the Fund
can determine who can be a candidate to be Managing Director of the Global
Mechanism. It is the UNDP’s role to do so. The role of the IFAD President (not the
Fund) is limited to formally appointing a candidate nominated by a third
organization pursuant to the authority specially vested in him by Section II.D of
the Memorandum of Understanding. Thus, the Managing Director is not appointed
by the President pursuant to Article 6, Section 8(d), of the Agreement Establishing
IFAD. Moreover, the appointing role of the IFAD President under Section II.D. of
the Memorandum of Understanding and the statement in Section II.D that the
Managing Director “will report directly to the President of IFAD” must be
understood in the light of IFAD’s supporting role regarding “the modalities and
administrative operations of the Global Mechanism,” constituting the object and
purpose of the Memorandum of Understanding.
182. According to Section III.A of the Memorandum of Understanding, “[t]he chain of
accountability will run directly from the Managing Director to the President of the
Fund to the Conference.” This provision underscores that the Managing Director is
ultimately accountable to the Conference and not to the Fund’s governing bodies
or its President, with the latter merely acting as a point of reference or
intermediary as part of the Fund’s undertaking to support “the modalities and
administrative operations of the Global Mechanism” under the Memorandum of
Understanding. The provision also must be viewed in the context of the
immediately preceding provision, according to which “[t]he Global Mechanism will
… be fully accountable to the Conference” (emphasis added). 191
183. While Section III.A.4 of the Memorandum of Understanding provides that the
Managing Director “will be responsible for preparing the programme of work and
191Memorandum of Understanding, Section III.A.1.
82 budget of the Global Mechanism, including proposed staffing,” the remainder of
this provision and the two provisions that follow make clear that this involves
budget estimates only. Thus, it is the budget estimates prepared by the Managing
Director that are to be “reviewed and approved by the President of the Fund [and
not ‘the Fund’] before being forwarded to the Executive Secretary of the
Convention for consideration in the preparation of the budget estimates of the
Convention, in accordance with the financial rules of the Conference [not: ‘of the
Fund’].” The words “before being forwarded to the Executive Secretary of the
Convention for consideration in the preparation of the budget estimates of the
Convention” in Section III.A.4, in combination with the words “[t]he Conference
will approve the programme of work and budget of the Global Mechanism” in
Section III.A.6, underscore the purely intermed iary or facilitating role of the IFAD
President under the Memorandum of Understanding and confirm that neither he
nor IFAD has final approval power in this important matter.
184. Section III.A.2 of the Memorandum of Un derstanding states that the “Managing
Director will submit reports to the Conference on behalf of the President of the
Fund.” Similarly, Section III.B of the Memorandum of Understanding states that
the Managing Director “will submit a report to each ordinary session of the
Conference on the activity of the Global Mechanism” to “the Executive Secretary of
the CCD for circulation to the COP.” These provisions confirm that the Managing
Director reports to the Conference of the Parties, and not to IFAD. The words “on
behalf of the President of the Fund” after “to the Conference” in Section III.A.2
and before “will submit a report … to the Executive Secretary” in Section III.B
mean simply that the Managing Director is to submit the report concerned through
the intermediary of the President of the Fund. In other words, the President in
this regard is performing at best an intermediary or facilitating function under the
Memorandum of Understanding. This interpretation is supported by the Conference
of the Parties’ Decision 25/COP.1 entitled “Collaborative institutional arrangements
in support of the Global Mechanism,” the Annex of which provides in paragraph
17: “The GM would report to the COP through the Head of the Housing
Organization” (emphasis added). 192 Section III.A.2, in particular the above-
referenced wording, was one of the provisions of the Memorandum of
Understanding on which the Tribunal relied in concluding that “the Global
Mechanism is to be assimilated to the various administrative units of the Fund for
all administrative purposes [and the] effect of this is that administrative decisions
taken by the Managing Director in relation to staff in the Global Mechanism are, in
193
law, decisions of the Fund.”
192
Doc. ICCD/COP(1)/11/Add.1, p. 79.
193ILOAT Judgment No. 2867, Consideration 7.
83 185. That the Managing Director is to submit his reports to the Conference of the
Parties and the Executive Secretary of the Conference of the Parties through the
Fund’s President makes perfect sense when viewed against the object and purpose
of the Memorandum of Understanding, under which the Fund has assumed
obligations vis-à-vis the Conference of the Parties “regarding the modalities and
administrative operations of the Global Mechanism,” in other words, obligations in
support of the functions of the Global Mech anism. Section III.B identifies IFAD as
one of several “supporting” organizations for the Global Mechanism.
186. The foregoing observations demonstrate that the Tribunal’s statement that it “is
significant that, according to the MoU, the Managing Director is to report to the
194
President of the Fund” is incomplete and misleading. The Tribunal reads too
much into the references to the IFAD President in the Memorandum of
Understanding, in a way that is not justified under both the terms and the object
and purpose of the Memorandum of Understa nding. While it is true that Section
II.D of the Memorandum of Understanding states that the Managing Director is to
“report directly to the President of IFAD,” the Managing Director is to do so “in
discharging his or her responsibilities” (emphasis added), i.e., as a purely
operational matter. Those responsibilities are defined, not by IFAD or its
President, but by the Conference of the Parties. Moreover, Section III.A makes
clear that the chain of accountability “will run directly from the Managing Director
to the President of the Fund to the Conference,” and the “Conference will approve
the programme of work and budget” prepared by the Managing Director (emphasis
added). According to Section III.B of the Memorandum of Understanding, the
Managing Director is to submit a report “to ... the Conference on the activities of
the Global Mechanism,” with such repo rts to “be submitted to the Executive
Secretary of the CCD for circulation to the COP.”
187. According to a “Position Description” dated 13 January 2005, issued on official
IFAD letterhead some five years after the Memorandum of Understanding was
concluded and IFAD became the organization to house the Global Mechanism, 195
the “principal responsibility” of the “Managing Director of the Global Mechanism of
the Convention to Combat Desertification” is “to ensure that the GM fulfils its
mission entrusted to it, i.e., to promote the mobilization of resources to support
affected developing country Parties to implement the Convention to Combat
Desertification (CCD)” and to do so “under the direction of the President of the
International Fund for Agricultural Development (IFAD).” The document lists
among the specific tasks to be undertaken by the Managing Director: “Lead,
manage and develop a close liaison with appropriate organizational units of the
194
Ibid., Consideration 7, second sentence.
195See IFAD’s Reply, Attachment T.
84 housing institution (IFAD) to ensure synergy with its operations.” It does not
make sense for the Managing Director of the Global Mechanism to be entrusted
with such task if he belongs to, i.e. is an official of, the organization with which he
is to liaise, i.e., the Fund.
188. When the Managing Director described himself in his memorandum of 15
December 2005 in which he announced his decision not to renew the
Complainant’s fixed-term contract, as “Managing Director, Global Mechanism,
IFAD Rome,” 196the reference to IFAD clearly was to the organization housing the
GM, given that the Managing Director was based at IFAD headquarters in Rome.
According to Section VI of the Memorandum of Understanding, “[t]he Global
Mechanism will be located at the headquarters of the Fund in Rome.” The
placement of the words “Global Mechanism” immediately after “Managing Director”
in the Managing Director’s memorandum indicate that the Managing Director’s
affiliation was with the Global Mechanism of the Convention, not with the Fund. In
other words, the word “at” should be read into the text before “IFAD.” Moreover,
the Managing Director’s decision was not transmitted on letterhead of the IFAD,
but on letterhead of the Global Mechanism, with the logo and name of the Global
Mechanism appearing at the top of the lette r, next to the logo and name of the
United Nations Convention to Combat Desertification. While it is true that the
IFAD logo and name are featured in smaller font at the bottom of the Managing
Director’s memorandum to the Complainan t, IFAD’s letterhead differs from the
letterhead of the Global Mechanism in that IFAD’s letterhead includes the IFAD
logo and name in large font at the top.
189. The foregoing leads to the conclusion that the Managing Director of the Global
Mechanism was not a member of IFAD’s staff in his dealings with the Complainant.
Therefore, the Tribunal was not competent to entertain pleas B(1) and B(2) of the
complaint filed with it, insofar as these included arguments directed at the
Managing Director and the President of IFAD acting in his special capacity under
the Memorandum of Understanding between the Fund and the Conference of the
Parties.
4. The Fund has neither acknowledged nor adopted the decision of
the Managing Director of the Global Mechanism as its own
190. According to Article 7 of the ILC’s Draft Ar ticles on Responsibility of International
Organizations (“Conduct acknowledged and adopted by an international
organization as its own”):
196ILOAT Judgment No. 2867, Consideration 1.
85 “Conduct which is not attributable to an international organization
under preceding draft articles shall nevertheless be considered an act
of that international organization under international law if and to the
extent that the organization acknowledges and adopts the conduct as
its own.”
191. The text of Draft Article 7 raises the question whether the IFAD President’s
decision of 4 April 2008, which he made in his special capacity under the
Memorandum of Understanding between the Fund and the Conference of the
Parties and by which he informed the Complainant that he had decided to reject
her appeal, could be considered to be within the scope of this provision and thus
constitute an act of the Fund under international law. Apart from the fact that
there is no evidence that the Fund acknowledged and adopted the impugned
decision of the President as its own, Draft Article 7 does not appear to address this
situation. The original “conduct” at issue in this case was the decision of the
Managing Director of the Global Mechanism not to renew the Complainant’s fixed-
term contract. The President of the Fund was not involved in that decision, nor
had he any reason or authority to be involved under the Memorandum of
Understanding. Draft Article 7 would concern the situation where the Managing
Director’s conduct, while not being attributable to the Global Mechanism, casu
quo, the Conference of the Parties, wo uld be acknowledged by the two latter
entities and adopted as its own. That is not the situation here, given that the
conduct of the Managing Director of the Global Mechanism was attributable to the
Global Mechanism, casu quo, the Conference of the Parties even if he exceeded his
authority, given that he acted in the capacity of Managing Director of the Global
Mechanism. 197 In sum, the ILC’s Draft Articles concerning attribution in the
context of the responsibility of international organizations merely confirm that the
conduct of the Managing Director of the Global Mechanism was attributable to the
Global Mechanism, casu quo , the Conference of the Parties, and not the Fund.
Therefore, the Tribunal’s conclusion, based on its interpretation of various
provisions of the Memorandum of Unders tanding between the Conference of the
Parties and the Fund (including Section III.A), that “the Global Mechanism is to be
assimilated to the various administrative units of the Fund for 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” 198is not supported by the rules of attribution under the law
of international organizations.
197
See Draft Article 6.
198ILOAT Judgment No. 2867, Consideration 7.
86 F. Conclusion
192. Based on the foregoing, the Fund submits that Question I should be answered in
the negative: the Tribunal was not competent to hear the complaint introduced
against the Fund by the Complainant. Principally, the Complainant was not an
official of the Fund at the relevant time, as is required by Article II of the
Tribunal’s Statute. Second, the Global Mechanism of the United Nations
Convention to Combat Desertification in Those Countries Experiencing Serious
Drought and/or Desertification, Particularly in Africa has not recognized the
jurisdiction of the Tribunal in accordance with Article II, paragraph 5, of the
Tribunal’s Statute, and neither has the Conference of the Parties. Third, the Fund’s
acceptance of the jurisdiction of the Tribunal does not extend to acts or decisions
of the Global Mechanism or its officials and of the Conference of the Parties.
Fourth, the conduct of the Global Mechanism, in particular the decision of its
Managing Director not to renew the Comp lainant’s fixed-term contract, is not
attributable to the Fund under international law, because (i) as the Fund and the
Complainant expressly agreed before the Tribunal, the Global Mechanism and the
Fund are separate legal entities; (ii) the Managing Director is not an official of the
Fund; (iii) the decision of the Managing Director was not made in the exercise of
one of the Fund’s functions; (iv) the act of the President of the Fund to implement
the decision of the Managing Director of the Global Mechanism was performed in
his capacity as an official placed at the disposal of the Conference of the Parties of
the UNCCD under the Memorandum of Understanding; and (v) the Fund has
endorsed neither the decision of the Managing Director of the Global Mechanism
nor the act of the IFAD President performed in his special capacity under the
Memorandum of Understanding between the Fund and the Conference of the
Parties.
Chapter 5. QUESTION II
193. The second question put to the Court by the Fund in the present proceedings
reads as follows:
“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
87 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? “
194. It is the Fund’s submission that in light of the fact that the Tribunal, by virtue of is
nature as a judicial body, is authorized to exercise its jurisdiction only with regard
to matters about which the parties before it are in dispute, the Tribunal was not
competent to make the statement, 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.” By
making this statement, the Tribunal entertained complaints which it was not
legally qualified to examine under Article II of its Statute. First of all, as the
Tribunal itself confirmed, “Article II, paragraph 5, of its Statute makes it clear that
the Tribunal may hear only disputes between officials and the international
organisations employing them.” 199Therefore, when there is no substantive dispute
between a complainant and the defendant organization – as in the present case
regarding the issue of separateness – the Tribunal not only lacks jurisdiction, but it
also would amount to a fundamental fault in the procedure followed by the
Tribunal if it were to decide or make statements on a matter about which there is
200
no dispute between the parties before it.
195. Moreover, the Tribunal lacked jurisdiction under Article II, paragraph 2, of its
Statute to make the general statement that “the Global Mechanism is to be
assimilated to the various administrative units of the Fund for all administrative
purposes”, as that statement does not concern “the terms of employment of
officials and of provisions of the Staff Regulations.” The Tribunal’s lack of
jurisdiction to make such a general statement is exacerbated by the fundamental
fault in the procedure committed by the Tribunal when, based on the foregoing
irregular statement, it proceeded to conclude 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” for all legal purposes.
196. The Fund submits that, for the foregoing reasons, Question II should be answered
in the affirmative. The legal analysis supporting this conclusion is set forth in the
following paragraphs.
199
ILOAT Judgment No. 2900 of 13 November 2009.
200ILOAT Judgment No. 1431 of 6 July 1995 (Consideration 5).
88 A. Disregard of the absence of a disput e regarding separateness of the Fund
and the Global Mechanism
1. The principle that only disputed issues are justiciable
197. According to the classic definition of a dispute adopted by the Permanent Court of
International Justice (PCIJ), a dispute is “a disagreement on a point of law or fact,
a conflict of legal views or interests between two persons.” 201 In the past, the
Court has “found that the opposing attitudes of the parties clearly established the
existence of a dispute.” 202 Consequently, if there are no “opposing attitudes of
the parties” on a given issue, that issue is not part of the dispute and, thus, is not
justiciable. Indeed, according to the Tribunal itself “Article II, paragraph 5, of its
Statute makes it clear that the Tribunal may hear only disputes between officials
203
and the international organisations employing them.” (Emphasis added). In
Vollering No. 4 , the Tribunal held specifically that it would not rule on a certain
issue “since … there is no longer any substantive dispute between the complainant
204
and the Organization.”
2. The parties expressly agreed that there was no dispute regarding
separateness before the Tribunal
198. In the instant case, the record before the Tribunal demonstrates unequivocally
that there was no dispute between the parties in the case before the Tribunal
regarding the key issue of the separateness between the Fund and the Global
Mechanism, casu quo, the Conference of the Parties, given that the Complainant’s
Rejoinder states, under the heading “Separate legal entities,” that “[t]he
complainant has no reason to dispute the separateness of IFAD and the Global
Mechanism” 205 and the Fund in its Surrejoinder “takes note of the fact that in
paragraph 5 of the Rejoinder, the Complainant concedes that the Fund and the
Global Mechanism are separate legal entities by stating that there is no reason to
dispute the separateness of the two aforementioned institutions.” 206 Indeed, the
Fund explicitly invited the Tribunal “to take note of this significant concurrence of
views between the parties to the present dispute as it has far reaching
201
Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. Ser.. A, No. 2, p. 11.
202Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12, at 27, para. 35.
203ILOAT Judgment No. 2900 of 13 November 2009.
204ILOAT Judgment No. 1431 of 6 July 1995 (Consideration 5).
205
Rejoinder, p. 2, A.(1), para. 5.
206Surrejoinder, p. 2, para. 6.
89 consequences for … critical issues regarding the Tribunal’s competence and the
207
rules that the Complainant can rely on before the Tribunal.” The record before
the Tribunal reflects the fact that both parties were in express agreement, and had
no “opposing attitudes,” concerning the separateness of “the Fund and the Global
Mechanism,” and not merely the Fund and the Conference of the Parties.
199. The significance of this observation lies in the fact that the Tribunal acknowledged
that “[t]he argument with respect to the Tribunal’s jurisdiction is based, in the
main, on the proposition that ‘[t]he Fund and the Global Mechanism are separate
legal identities’.”208In other words, the Tribunal explicitly phrased the issue of
separateness as a jurisdictional issue, thereby bringing its findings on that issue
within the scope of Article XII of its Statute. In its ruling, the Tribunal identifies
the Conference of the Parties, the Fund’s counterparty under the Memorandum of
Understanding, as “the Convention’s supreme body” having “established the
Global Mechanism” 209 and accepts the Fund’s argument that “the Global
Mechanism is an integral part of the Convention accountable to the
Conference.” 210 But notwithstanding these observations and the parties’ express
agreement that the Fund and the Global Mechanism are “[s]eparate legal entities,”
the Tribunal still refused to accept that the Global Mechanism has its own legal
211
identity or legal personality.
200. In the view of the Fund, faced with the written statements of both parties, the
Tribunal erred in rejecting the separate legal identity of the Fund and the Global
Mechanism in paragraphs 6-7 of its ruling and consequently erred in asserting
jurisdiction over acts of the Global Mechanism and over the Fund. The Tribunal
should have accepted the parties’ express agreement regarding the legal
separateness of the Fund and the Global Mechanism and should have attached the
necessary conclusions stemming from such separateness. Based on the parties’
statements, there was nothing left for the Tribunal to decide on the key question,
which the Tribunal acknowledged was one affecting its jurisdiction, whether or not
the Fund and the Global Mechanism are legally separate.
201. The Tribunal’s finding on the issue of separateness constitutes a key element of its
ruling, without which it could not have concluded that “administrative decisions
taken by the Managing Director in relation to staff in the Global Mechanism are, in
207Ibid.
208
ILOAT Judgment No. 2867, Consideration 5.
209Ibid., para. A.
210Ibid., Consideration 5.
211
Ibid., Consideration 6.
90 law, decisions of the Fund,” 212which conclusion is inextricably linked to the
Tribunal’s decision to set aside the President’s decision of 4 April 2008. 213 The
Tribunal’s decision to assimilate the Global Mechanism and the Fund for purposes
of administrative decisions is especially surprising in the light of the Tribunal’s
observation that “the MOU confers no power on the President [of IFAD] to
determine the conditions of appointm ent of the personnel of the Global
Mechanism.” 214
202. Even if one were to accept, for the sake of argument, both the appropriateness
and correctness of the Tribunal’s conclusion that “the Global Mechanism is to be
assimilated to the various administrative units of the Fund for all administrative
215
purposes,” this does not warrant or justify the Tribunal’s separate conclusion,
offered without any reasoning, that, for all legal purposes, “administrative
decisions taken by the Managing Director in relation to staff in the Global
216
Mechanism are, in law, decisions of the Fund.”
B. Conclusion
203. Based on the foregoing and given that the record before the Tribunal shows that
the parties to the dispute underlying the Tribunal’s Judgment No. 2867 were in
express 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 facts, documents, rules and principles,
the Tribunal’s statement, which it acknowledged was made within the context of
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” was
outside its jurisdiction and/or constituted a fundamental fault in the procedure
followed by the Tribunal toward reaching its final decision.
212Ibid., Consideration 7.
213
Ibid., p. 18.
214Ibid., Consideration 10.
215
Ibid.
216Ibid.
91 Chapter 6. QUESTION III
A. Lack of jurisdiction ratione materiae; Disregard of the non ultra petita rule
204. For the same reasons as stated above with regard to Question II, as well as those
spelled out below, the Fund submits that Question III should be answered in the
affirmative. Question III reads as follows:
“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?”
1. The principle of non ultra petita partium
205. Pursuant to the principle of ne eat judex ultra petita partium or non ultra petita, a
body adjudicating a dispute should rule only on those issues on which it is asked
to rule. In other words, an international court or tribunal must not exceed the
limits of its statutory jurisdiction and the jurisdiction conferred upon it by the
parties to a given case by deciding points not submitted to it, or by awarding more
than it is asked to award. The principle is recognized as a general principle of
217
law. For example, Article V, paragraph (1 )(c), of the New York Convention on
the Recognition and Enforcement of International Arbitral Awards confirms that
arbitrators cannot go outside the parties’ claims. The non ultra petita rule is not
only an inevitable corollary – indeed a part of the general principle of consent of
the parties as the basis of international jurisdiction – it is also a necessary rule, for
without it the consent principle itself could be circumvented 218. As the Court itself
has stated, “[t]he Court must not exceed the jurisdiction conferred upon it by the
parties …” 219Time and again international courts and tribunals have restated the
principle that the principle of non ultra petita partium prevents them from
awarding more than what was requested. The Court has observed generally that
“it is the duty of an international tribunal ‘not only to reply to the questions as
stated in the final submissions of the parties, but also to abstain from deciding
217C.F. Amerasinghe, Jurisdiction of International Tribunals (The Hague/London/New York: Kluwer
Law International, 2003), p. 422.
218I.F.I. Shihata, The Power of the International Court to Determine its Own Jurisdiction (The Hague:
Martinus Nijhoff, 1965), p. 219
219
Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 23, para. 19.
92 points not indicated in those submissions’ ( I.C.J. Reports 1950 , p. 402).” 220
According to another tribunal:
“The competence of international judges is limited by the functions
assigned to them by the parties in the case. Their powers are also
limited by the extreme claims which the parties put forward in the
hearings. To exceed these functions or powers means deciding ultra
vires and rendering the decision null by reason of excès de
pouvoir.” 221
206. Thus, for instance, in Chile-Price Band (Argentina v. Chile) the WTO Appellate
Body found that the Panel failed to make an objective assessment of the matter
before it and “acted ultra petita” by making a finding on a claim that no party had
put forward 222. The Appellate Body reversed the Panel’s findings under GATT
Article II:1(b), second sentence, on the grounds that it was a claim that had not
been raised by Argentina in its panel request or any subsequent submissions, and
the Panel, by assessing a provision that was not part of the matter before it, acted
ultra petita and in violation of Article 1 of the Dispute Settlement Understanding
(“DSU”). The Appellate Body also stated that consideration by a Panel of claims
not raised by the claimant deprived Chile of its due process rights under the DSU.
This statement finds support in the following explanation provided by the Court in
223
the Arrest Warrant Case, decided earlier in the same year , which referred to
"the well-established principle that ‘it is the duty of the Court not only to reply to
the questions as stated in the final submissions of the parties, but also to abstain
224
from deciding points not included in those submissions’” . Because of this
principle, in the Oil Platforms Case several Members of the Court considered that
the first part of the dispositif violated the non ultra petita rule 225. In Judge
Buergenthal’s view, “the non ultra petita rule prevents the Court from making a
specific finding in its dispositif that the challenged action, while not a violation of
220
Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal ,
Advisory Opinion, I.C.J. Reports 1973, pp. 207-208, para. 87.
221
Boundary dispute between Argentina and Chile concerning the frontier line between boundary post
62 and Mount Fitzroy, 21 October 1994, UNRIAA VOLUME XXII, pp. 3-149, at p. 36 §106.
222Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products –
Recourse to Article 21.5 of the DSU by Argentina, AB-2002-2 WT/DS 207/ABR, para. 173, adopted by
the DSB, 23 October 2002.
223
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14
February 2002, I.C.J. Reports 2002, p. 3, at 18-19, para. 43.
224
Asylum, Judgment, I.C.J. Reports 1950, p. 402.
225Oil Platforms (Islamic Republic of Iran v. United States of America) , Judgment, I. C.J. Reports
2003, p. 161, Separate Opinion of Judge Higgins, para s. 9-24; Separate Opinion of Judge Kooijmans,
ibid., paras. 27-35; Separate Opinion of Judge Buergenthal, ibid., paras. 4-10.
93 Article X, paragraph 1, is nevertheless not justified under Article XX, paragraph 1
(d), when the Parties in their submissi on did not request such a finding with
regard to that Article, which they did not do in this case.” 226Similarly, Judge
Kooijmans observed that “the first part of [the dispositif] is redundant: it
introduces an obiter dictum into the operative part of a judgment.” 227 Admittedly,
in Arrest Warrant the Court stated that while it is not entitled to decide upon
questions not put to it, the non ultra petita rule did not preclude the Court from
addressing certain legal points in its reasoning. But this qualification of the
principle does not mean that an international court or tribunal may make broad
generic legal determinations beyond the matter requested by either party.
207. In the past, the Tribunal itself has shown respect for the principle of ne eat judex
ultra petita partium. Thus, in its Judgment No. 2186 the Tribunal explained that it
“will not be in breach of the rule ne eat judex ultra petita partium by awarding
228
damages on grounds other than those initially cited.” This recognition by the
Tribunal means that it accepts the inherent limitation of its jurisdiction that ensues
from this principle and the fact that non-observance will lead to nullity of the
Tribunal’s judgment.
2. The Tribunal acted ultra petita in making a general determination
with regard to all staff and all acts of the Global Mechanism in a
situation where neither were before the Tribunal
208. The case before the Tribunal concerned only one staff member of the Global
Mechanism, namely the Complainant. Nevertheless, without the authority to do so
and in breach of the fundamental principles pertaining to judicial proceedings, the
Tribunal made a general determination that purports to apply to all the personnel
of the Global Mechanism. In addition to the fact that according to Article II,
paragraph 5, of its Statute, the Tribunal can only make determinations with regard
to a complainant over which it has jurisdiction, it is incompatible with the most
fundamental principles of judicial proc edure to make judicial determinations
without ascertaining the facts of each case. By making the general statement that
“the personnel of the Global Mechanis m are staff members of the Fund,” the
Tribunal ignored its duty to examine all elements of a situation on which it is asked
to decide before making a determination.
209. Even if it were to be assumed, for the sake of argument, that the Tribunal drew
the correct conclusion regarding the legal status and standing of the Complainant
226Separate Opinion of Judge Buergenthal, ibid., para. 6.
227
Separate Opinion of Judge Kooijmans, ibid., para. 33.
228ILOAT Judgment No. 2186 of 3 February 2003, Consideration 3.
94 in this case, which on balance was not the case in the view of the Fund, the
Tribunal was not justified to follow this conclusion with the general statement that
229
“the personnel of the Global Mechanism are staff members of the Fund.” The
Tribunal was not justified to make this broad statement applying to all personnel
of the Global Mechanism, given that the terms of appointment and employment of
Global Mechanism staff members other than the Complainant were not before the
Tribunal in this case and, therefore, were not within its jurisdiction. For such staff
members to fall within the Tribunal’s jurisdiction, they formally must be IFAD staff
members in addition to being Global Mechan ism staff members. If it is accepted
that the parties before the Tribunal were in agreement concerning the
separateness of the Fund and the Global Mechanism and that this means that the
two are legally separate, 230 the Tribunal’s conclusion that “administrative decisions
taken by the Managing Director in relation to staff [i.e., the Complainant as well as
other staff] in the Global Mechanism are, in law, decisions of the Fund” is deprived
of its foundation. It is one thing for the Tribunal to conclude, after examining the
circumstances underlying the Complainant’s appointment, that in the light of those
circumstances administrative decisions taken by the Managing Director in relation
to this particular staff member in the Global Mechanism are, in law, decisions of
the Fund. But without having examined the circumstances underlying the
appointment of other personnel in the Global Mechanism, which were not before
the Tribunal in this case, the Tribunal had no jurisdictional basis for making this
broad and generic statement. Clearly, such generic statement is not a
consideration of fact or law other than those relied upon by the parties, which
according to doctrine 231 an international court or tribunal may pronounce on
without infringing the non ultra petita rule. In accordance with the example set by
the Permanent Court of International Justice in its Judgment in the case of Access
of Polish War Vessels to the Port of Danzig , the Tribunal should have made any
statements with regard to the employment status of the Complainant, if any,
without expressing any opinion on the status of the Global Mechanism staff in
general, and should have expressly limited its conclusion to the case presented to
it.32 The Tribunal failed to do so in this case.
229
ILOAT Judgment No. 2867, Consideration 11 (emphasis added).
230See Rejoinder, para. 5 (“Separate legal entities”), and IFAD’s Surrejoinder, para. 6.
231
See G. Fitzmaurice, The Law and Practice of the International Court of Justice (Cambridge,
Cambridge University Press/Grotius Publications, reprint 1996), Vol. 2, p. 533.
232
Access of Polish War Vess els to the Port of Danzig , PCIJ Ser. A/B, No 43 (1931), p. 140. See also
H. Lauterpacht, The Development of International Law by the International Court (Cambridge, Grotius
Publications, reprint 1982), p. 80.
95 B. Conclusion
210. Given the inherent limitation of its jurisdiction that ensues from the Tribunal’s
Statute, in combination with the principle of non ultra petita and the fact that non-
observance of this principle will lead to nullity of the judgment because disrespect
for the principle constitutes a fundamental fault in the procedure followed,
Question III must be answered in the affirmative. As pointed out by President
Hackworth in his Dissenting Opinion in the Unesco Case, “judgments given by a
Tribunal which is without jurisdiction … can have no validity.” 233As explained by
Judge De Castro in the Falsa Case, i n procedural law, a breach of the non ultra
petita rule produces a lack of correlation between the judgment and the subject-
matter of the application, which is regarded as a fundamental error that
234
invalidates the judgment.
Chapter 7. QUESTION IV
A. The Tribunal lacked jurisdiction to entertain the Complainant’s plea
alleging an excess of authority by th e Managing Director of the Global
Mechanism and/or its decision to entertain this plea constituted a
fundamental fault in the proced ure followed; Disregard of the non infra
petita rule
211. The Fund submits that Question IV should be answered in the affirmative.
Question IV reads as follows:
“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?”
1. The principle of non infra petita
212. A judgment may be invalid not only by going too far ( ultra petita) but also by
virtue of not going far enough ( infra aut minus petita). It fails to go far enough if
no decision is rendered on one of the heads of claim. Thus, an international court
or tribunal must render a decision not only according to the petitum in the
application or complaint ( sententia debet esse conformis libelli ), but it should not
leave out any of the claims made in the parties’ submissions, including the
233Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of President Hackworth, I.C.J. Reports 1956, p. 77, at 122.
234
Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal ,
Advisory Opinion, Dissenting Opinion of Judge De Castro, I.C.J. Reports 1973, p. 166, at 291.
96 defenses of the respondent. As the Court itself has recognized, “[t]he Court must
not exceed the jurisdiction conferred upon it by the [p]arties, but it must …
exercise that jurisdiction to its full extent.” 235 An international court or tribunal
does not fulfil its judicial duty if it fails to give a decision on one of the causae
petendi of the application or neglects the submissions made by the respondent
(non est judex minus petita partium) 236.
2. The Tribunal ruled infra petita in relation to the plea alleging an
excess of authority by the Mana ging Director of the Global
Mechanism
213. As already explained with regard to Question I, the Global Mechanism has not
recognized the jurisdiction of the Tribunal in accordance with Article II, paragraph
5, of the Tribunal’s Statute. Moreover, the Fund’s acceptance of the jurisdiction of
the Tribunal does not extend to the acts or decisions of the Global Mechanism or
its officials.
214. The Global Mechanism has not submitted the declaration specified in Article II,
paragraph 5, of the Tribunal’s Statute and is, therefore, not an “intergovernmental
international organisation” within the meaning of Article II against which the
Complainant could complain before the Tribunal and over the acts of which the
Tribunal could exercise jurisdiction. The same must apply to the Conference of the
Parties based on the Tribunal’s observation that the Conference of the Parties
237
“established the Global Mechanism.” Hence, acts of the Conference of the
Parties, including the conduct of an organ or agent of the Conference of the Parties
(such as the Global Mechanism or its Managing Director), are plainly outside the
jurisdiction of the Tribunal, unless such conduct can somehow be said to be IFAD’s
235Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 23, para. 19.
236
Compare: Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, Dissenting Opinion Judge De Castro, I.C.J. Reports 1973, p. 166, 291.
Note also that in Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic ,
the arbitral award was annulled be cause the tribunal accepted jurisdiction over treaty claims but did
not exercise it for various reasons. The tribunal annulled the award because it was infra petita. ICSID
Case No. ARB/97/3, Award of the Tribunal of 21 Nov. 2000, 40 ILM (2001), pp. 426-453, Decision on
Annulment of 3 July 2002, 41 ILM (2002), pp. 1135-1162. See generally H.E. Kjos, “The Role of
Arbitrators and the Parties in Ascertaining the Applicability and Content of National and International
Law” in: The Interplay Between National and International Law in Investor-State Arbitration
(forthcoming) ch. 5, noting authority for arbitrators’ right to apply a rule of law not discerned by the
parties, provided the award respects principles of non infra petita (no award less than what has been
requested by the parties) and the parties’ right to be heard.
237ILOAT Judgment No. 2867, para. A, second sentence.
97 conduct or otherwise can be considered to be attributable to IFAD under
238
international law.
215. As the Fund stated before the Tribunal, the Tribunal can only “examine the budget
and related practices of the Global Mechanism, its reporting and other interactions
with the Conference of the Parties to the Convention, as well as the terms of the
239
Memorandum of Understanding between the latter and the Fund” in the context
of a determination whether the decision of the Managing Director of the Global
Mechanism not to renew the Complainant’s fixed-term contract on the ground of
its abolition was outside his authority and constituted an error or law if, and only
if, the Conference of the Parties, casu quo, the Global Mechanism has accepted the
Tribunal’s jurisdiction, which clearly was not the case, as demonstrated in Chapter
4 sub C. above.
216. While the Tribunal acknowledged that IFAD took the position that “IFAD’s
acceptance of the jurisdiction of the Tribunal [under Article II, paragraph 5, of its
Statute] does not extend to entities that it may host pursuant to international
agreements with third parties” such as the Conference of the Parties and that
240
“neither the COP nor the GM has recognis ed the jurisdiction of the Tribunal,” it
neglected to address this point explicitly in its ruling and proceeded to exercise
jurisdiction.
B. Conclusion
217. Given the inherent limitation of the Tribunal’s jurisdiction that ensues from its
Statute, in combination with the principle of non infra petita and the fact that non-
observance of this principle will lead to nullity of the judgment because disrespect
for the principle constitutes a fundamental fault in the procedure followed,
Question IV must be answered in the affirmative.
Chapter 8. QUESTION V
218. The Fund submits that Question V should be answered in the affirmative due to
the Tribunal’s disregard of the indispensable third party rule. Question V reads as
follows:
“V. Was the ILOAT’s decision confirming its jurisdiction to entertain the
Complainant’s plea that the Managing Director’s decision not to renew
238
See International Law Commission, Responsibility of International Organizations , Arts. 4-7, UN
Doc. A/CN.4/L.648 (27 May 2004).
239IFAD’s Reply, para. 33.
240
ILOAT Judgment No. 2867, para. C.
98 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?”
A. The Indispensable Third Party Rule in international adjudication
219. In its Reply before the Tribunal, the Fund maintained that the Global Mechanism
(and the Conference of the Parties) must be considered an indispensable third
241
party for purposes of the proceedings before the Tribunal. The Tribunal failed
to address this vital argument in its Judgment No. 2867, even though it
acknowledged, in summarizing the Fund’s challenge to its jurisdiction, that the
Fund’s “submissions relating to the powers and jurisdiction of the Tribunal” could
be broken down into three points: “The first is that the Tribunal may not entertain
flaws in the decision-making process of the Global Mechanism; the second is that
the Tribunal may not entertain flaws in the decision-making process of Fund if it
entails examining the decision-making process of the Global Mechanism and the
242
third is that acts of the Managing Director are not attributable to the Fund.”
220. The Fund pointed out that inherent in the limited and voluntary nature of
international jurisdiction is that if a judgment of a court or tribunal against a
participating party will effectively determine the legal obligations of one or more
parties which are not before that court or tribunal, such court or tribunal should
not proceed to consider rendering judgment against the participating party in
absence of the others. The fact that the timing of the finding of the responsibility
of the absent party precedes such a finding in respect of the participating party, or
that the finding of the responsibility of the absent party is a logical prerequisite to
the finding of the responsibility of the participating party, is not significant. What is
dispositive is whether the determination of the legal rights of the participating
party effectively determines the legal rights of the absent party. 243 The principle of
permitting third parties by their non-ap pearance to foreclose litigation between
two parties over which the court or tribunal otherwise has jurisdiction appears
unappealing. As the present case demonstrates, the reverse is even less
appealing. Obviously, the question is one of balancing, on the one hand, the
propriety of the court or tribunal's exercising to the fullest extent the jurisdiction
which it has been given and, on the other hand, the impropriety of determining
the legal interests of a third party which is not a party to the proceedings. While it
may in practice be unusual for the legal interests of a third party to be subject to
241
IFAD’s Reply, paras. 32-33.
242ILOAT Judgment No. 2867, Consideration 8.
243
See: See also: H. Lauterpacht, The Development of International Law by the International Court
(Cambridge, Grotius Publications, reprint 1982), pp. 342-344..
99 such determination, where they are, the balance should swing in its favour, and in
favour of the inadmissibility of the action against the participating party.
221. The Court – as well as other international courts and tribunals 244 - has had to
consider questions of this kind on previous occasions insofar as it concerns its own
proceedings. On those occasions the Court has acknowledged the indispensable
third party-rule as being a well-established principle of international law. In the
case concerning the Monetary Gold Removed from Rome in 1943 (Preliminary
Question), the first submission in Italy’s Application was worded as follows: "(1)
that the Governments of the French Republic, Great Britain and Northern Ireland
and the United States of America should deliver to Italy any share of the monetary
gold that might be due to Albania under Part III of the Paris Act of January 14th,
1946, in partial satisfaction for the damage caused to Italy by the Albanian law of
January 13th, 1945" 245. In its Judgment of 15 June 1954, the Court, noting that
only France, Italy, the United Kingdom and the United States of America were
parties to the proceedings, found that:
“To adjudicate upon the international responsibility of Albania without
her consent would run counter to a well-established principle of
international law embodied in the Court’s Statute, namely, that the
246
Court can only exercise jurisdiction over a State with its consent.”
222. Noting that Albania had chosen not to intervene, the Court stated:
“In the present case, Albania’s legal interests would not only be
affected by a decision, but would form the very subject-matter of the
decision. In such a case, the Statute cannot be regarded, by
implication, as authorizing proceedings to be continued in the absence
247
of Albania.”
223. Subsequently, in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) the Court observed as
follows:
244Larsen v. Hawaiian Kingdom , Permanent Court of Arbitration, Award of 5 February 2001, text
available at http://www.pca-c pa.org; also published in International Law Reports 119 (2001), pp.
566-598. Reprinted at Hawaiian Journal of Law and Politics , 1 (Summer 2004), pp. 238-277. The
Tribunal comprised James Crawford, Gavan Griffith , and Christopher Greenwood. Under the parties’
agreement to arbitrate, the appointing authority for the Tribunal was Keoni Agard.
245I.C.J. Reports 1954, p. 22.
246Ibid., p. 32.
247
Ibid.
100 “There is no doubt that in appropriate circumstances the Court will
decline, as it did in the case concerning Monetary Gold Removed from
Rome in 1943, to exercise the jurisdiction conferred upon it where the
legal interests of a State not party to the proceedings ‘would not only
be affected by a decision, but would form the very subject-matter of
the decision’ (I.C.J. Reports 1954, p. 32). Where, however, claims of a
legal nature are made by an Applicant against a Respondent in
proceedings before the Court, and made the subject of submissions,
the Court has in principle merely to decide upon those submissions,
with binding force for the parties only, and no other State, in
accordance with Article 59 of the Statute. As the Court has already
indicated (paragraph 74, above) other States which consider that they
may be affected are free to institute separate proceedings, or to
employ the procedure of intervention. There is no trace, either in the
Statute or in the practice of international tribunals, of an
‘indispensable parties’ rule of the kind argued for by the United States,
which would only be conceivable in parallel to a power, which the
Court does not possess, to direct that a third State be made a party to
proceedings. The circumstances of the Monetary Gold case probably
represent the limit of the power of the Court to refuse to exercise its
jurisdiction; and none of the States referred to can be regarded as in
the same position as Albania in that case, so as to be truly
indispensable to the pursuance of the proceedings.” 248
224. That jurisprudence was applied by a Chamber of the Court in the case concerning
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua
intervening) in a Judgment given on 13 September 1990, which examined whether
the legal interests asserted by Nicaragua in support of an application for
permission to intervene in the case did or did not form “part of 'the very subject-
matter of the decision’” to be taken or whether they were only affected by that
decision.249
250
225. In its Judgment in the case concerning East Timor (Portugal v. Australia) , the
Court found that it could not exercise the jurisdiction conferred upon it by the
declarations made by the parties under Article 36, paragraph 2, of the Court’s
248Judgment of 26 November 1984, I.C.J. Reports 1984, p. 43 1, para. 88.
249I.C.J. Reports 1990, p. 116, para. 5.
250
East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90; For a discussion, see N.
Symbesma-Knol, “The Indispensable Third Party Rule in the East Timor Case,” in: E. Denters and N.
Schrijver, (eds.), Reflections on international law from the low countries: in honour of Paul de Waard
(Martinus Nijhoff Publishers, 1998), p. 442..
101 Statute to adjudicate upon the dispute referred to it by the Application of the
Portuguese Republic. Australia objected to the Court’s deciding on the case by
contending that the jurisdiction conferred upon the Court by the parties’
declarations under Article 36, paragraph 2, of the Statute would not enable the
Court to act if, in order to do so, the Court were required to rule on the lawfulness
of Indonesia’s entry into and continuing presence in East Timor, on the validity of
the 1989 Treaty between Australia and Indone sia, or on the rights and obligations
of Indonesia under that Treaty, even if the Court did not have to determine its
validity. Having carefully considered the argument advanced by Portugal, which
sought to separate Australia’s conduct from that of Indonesia, the Court concluded
that Australias conduct could not be assessed without first entering into the
question why it is that Indonesia could not lawfully have concluded the 1989
Treaty, while Portugal allegedly could have done so; the very subject-matter of
the Court’s decision would necessarily be a determination whether, having regard
to the circumstances in which Indonesia entered and remained in East Timor, it
could or could not have acquired the power to enter into treaties on behalf of East
Timor relating to the resources of its continental shelf. The Court could not make
such a determination in the absence of the consent of Indonesia. The Court
explained in East Timor that the test is whether a determination of the absent
third State’s rights and obligations would “constitute the very subject-matter
of,”251 and is “needed as a basis for,” 252 its decision, as opposed to the situation
where its findings “might well have implications” 253 for the third State’s rights and
obligations or “might affect the legal interests” 254of another State.
226. In its Judgment in the case concerning Phosphate Lands in Nauru , the Court
explained the rationale behind the absent third party rule at the international level
as opposed to the national level by pointing out:
“National courts, for their part, have more often than not the
necessary power to order proprio motu the joinder of third parties who
may be affected by the decision to be rendered; that solution makes it
possible to settle a dispute in the presence of all the parties
concerned. But on the international plane the Court has no such
power. Its jurisdiction depends on the consent of States and,
251Ibid., 105, para. 34.
252
Ibid.
253Ibid.
254
Ibid., p. 104.
102 consequently, the Court may not compel a State to appear before it,
255
even by way of intervention.”
B. The Tribunal lacked jurisdiction to entertain pleas of flaws in the decision-
making process of the Fund to the ex tent that such pleas involved an
examination of the decision-making process of absent third parties
and/or its decision to entertain these pleas constituted a fundamental
fault in the procedure followed
227. Admittedly, in its Unesco Opinion the Court observed that:
“The arguments, deduced from the sovereignty of States, which might
have been invoked in favour of a restrictive interpretation of provisions
governing the jurisdiction of a tribunal adjudicating between States are
not relevant to a situation in which a tribunal is called upon to
adjudicate upon a complaint of an official against an international
256
organization.”
228. However, given that the Tribunal’s jurisdiction over international organizations and
their acts is dependent on those organizations having accepted the jurisdiction of
the Tribunal, there is no objection against the application of the indispensable third
party rule to the Tribunal’s exercise of jurisdiction. On the contrary, just as in the
case of States the Tribunal’s jurisdiction – and for that matter any international
tribunal wishing to adjudicate a dispute involving an international organization and
its acts - depends on the acceptance of jurisdiction by the international
organization concerned and, consequently, the Tribunal may not compel an
257
international organization to appear before it, even by way of intervention. In
fact, it is important to note that international organizations that have not
recognized the jurisdiction of the Tribunal and which are not a party to a case
before it do not have the option to apply for permission to intervene. Article 13.2
of the Rules of the Administrative Tribunal of the International Labour Organization
provides that only “[ a]n organization which has recognized the Tribunal’s
jurisdiction may intervene in a complaint on the grounds that the ruling which the
Tribunal is to make may affect it.” Therefore, whereas in the case of the Court
255Certain Phosphate Lands in Nauru (Nauru v. Australia) , Preliminary Objections , Judgment, I.C.J.
Reports 1992, p. 240, 260, para. 53.
256 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 97.
257At the 32nd Session of the International Labour Conference (1949), Article II of the Statute of the
ILO Tribunal was amended to permit other international organizations that were approved by the
ILO’s Governing Body to recognize the jurisdiction of the Tribunal to consider complaints alleging the
non-observance, in substance or in form, of the terms of appointment of officials, or of the provisions
of the Staff Regulations of those organizations.
103 itself (due to the possibility of filing a request for intervention), the absence of
such a request in no way precludes the Court from adjudicating upon the claims
submitted to it, provided that the legal interests of the third State which may
possibly be affected do not form the very subject-matter of the decision that is
applied for, in the case of the Tribunal no such possibility exists, which a fortiori,
renders the absence of any indispensable party an inherent and peremptory
impediment for the exercise of jurisdiction by the Tribunal.
229. In the present case, the interests of the Global Mechanism and the Conference of
the Parties constituted the very subject-matter of the Complainant’s complaint and
of the decision rendered by the Tribunal on the merits of that complaint. The
situation is in that respect not different from that with which the Court had to deal
in the Monetary Gold Case. In the latter case, the determination of Albania’s
responsibility was a prerequisite for a decision to be taken on Italy’s claims.
Similarly, in the present case, as the Fund ’s purported responsibility predicates on
the decision-making in the Global Mechan ism and the Conference of the Parties,
the determination of the responsibility of those two bodies is a prerequisite for the
determination of the responsibility of the Fund. The central contention of the
Complainant before the Tribunal was that it is not true that the budget of the
Global Mechanism that was authorized by the Conference of the Parties
necessitated the abolition of her post and non-renewal of her fixed-term contract.
This assertion necessitated an examination and interpretation of the decision of
the Conference of the Parties. In the Monetary Gold Case the link between, on the
one hand, the necessary findings regarding Albania’s alleged responsibility and, on
the other hand, the decision requested of the Court regarding the allocation of the
gold, was not purely temporal but also logical. As the Court explained:
“In order . . . to determine whether Italy is entitled to receive the gold,
it is necessary to determine whether Albania has committed any
international wrong against Italy, and whether she is under an
258
obligation to pay compensation to her.”
230. Similarly, in the present case, the findings by the Tribunal regarding the existence
or the content of the responsibility attributed to the Fund by the Complainant had
direct implications for the legal situation of the Global Mechanism and the
Conference of the Parties. As explained above, this fact is not obfuscated by the
Tribunal’s erroneous assimilation of the Global Mechanism and the Fund. Once this
assimilation is undone, as the Fund is requesting the Court to do, the
indispensable third party rule will prompt the conclusion that, as pointed out in the
258I.C.J. Reports 1954, p. 32.
104 Fund’s Reply submitted to the Tribunal, 259 the Tribunal should not have
entertained the Complainant’s pleas of flaws in any decision-making process of the
Fund insofar as they may entail examining the decision-making process in the
Global Mechanism and/or the Conference of the Parties.
231. What makes the Tribunal’s Judgment No. 2867 subject to challenge under Article
XII of the Tribunal’s Statute is that the Tribunal based its very decision that “[t]he
President’s decision of 4 April 2008 is set aside” 260 on its conclusion that he “erred
in law” in not finding that the decision of the Managing Director of the Global
Mechanism “not to renew the complainant’s contract on the ground of its abolition
261
constituted an error of law.” The Tribunal based its finding that the Managing
Director’s decision constituted an error of law directly on its separate finding that
262
“the Managing Director had no authority to abolish the complainant’s post.”
The Tribunal arrived at the latter finding solely after analyzing the Memorandum of
Understanding and the Conference of the Parties’ decision on budgetary matters in
the absence of both the Global Mechanis m and the Conference of the Parties.
Thus, the Tribunal’s decision that “[t]he President’s decision of 4 April 2008 is set
aside” is directly linked to its analysis of the Memorandum of Understanding and
the Conference of the Parties’ decision insofar as they concern budgetary
matters. 263
232. In Judgment No. 2867, the Tribunal expressly acknowledged that “[t]he Fund
contends that the Tribunal lacks jurisdiction to entertain” the following two
arguments on which the Complainant relied in her complaint: “firstly, that the
Managing Director exceeded his authority in deciding not to renew her contract
and, secondly, that the ‘core budget’ appr oved by the Conference did not require
the abolition of her post.” 264
233. The Tribunal should have recognized that the complaints that the Complainant
submitted before the Tribunal through items B(1) and B(2) of her complaint,
namely “firstly, that the Managing Director exceeded his authority in deciding not
259Reply, paras. 31-34.
260
ILOAT Judgment No. 2867, p. 18, operative paragraph, item (1). See also ibid., Consideration 17.
261Ibid., Consideration 17.
262Ibid. (“ Because the Managing Director had no authorit y to abolish the complainant’s post, his
decision not to renew the complainant’s contract on the ground of its abolition constituted an error of
law. The President of the Fund erred in law in not so finding when considering her internal appeal. It
follows that the President’s decision of 4 April 2008 dismissing the complainant’s internal appeal must
be set aside.” (Emphasis added)).
263See ibid., Considerations 12-17.
264Ibid., Consideration 4.
105 to renew her contract and, secondly, that the ‘core budget’ approved by the
265
Conference did not require the abolition of her post,” concerned the Conference
of the Parties, which is plainly outside the Tribunal’s jurisdiction, and raised issues
of accountability for the exercise of discretionary powers of the Managing Director
of the Global Mechanism, which according to Article 21 of the Convention is
266
reserved to the Conference of the Parties. Section III of the Memorandum of
Understanding merely implements the accountability rule set forth in the
Convention and emphasizes the exclusive competence of the Conference of the
Parties in this regard by stating that “[t]he Global Mechanism will function under
the authority of the Conference and be fully accountable to the Conference ”
(emphasis added).
234. By exclusively analyzing the Memorandum of Understanding and “the Conference
decision”267 in determining whether the decision of the Managing Director of the
Global Mechanism to abolish the Complainant’s post was taken with or without
authority, the Tribunal made the determination of a third party’s rights and
obligations “the very subject-matter of” its decision, to use the Court’s words in
the East Timor Case. The Tribunal’s conclusion that “the abolition of her post was
impliedly forbidden by the Conference decision” constituted the very basis for its
decision that “the decision of the Managing Director to abolish it was taken without
authority,”268 and hence that “his decision not to renew the complainant’s contract
on the ground of its abolition constituted an error of law,” which according to the
Tribunal was also, and automatically, committed by the President of the Fund (and
hence the Fund itself) when he dismissed the Complainant’s internal appeal on 4
April 2008. By ruling in this way, the Tribunal violated the “indispensable party”
or “necessary third party” rule developed in the Court’s case law.
C. Conclusion
235. For the reasons stated above, the Fund submits that Question V should be
answered in the affirmative.
265Ibid., Consideration 4 (emphasis added).
266
IFAD alerted the Tribunal to this in the proceedingsbefore the Tribunal, to no avail. See IFAD’s
Reply, para. 34.
267
ILOAT Judgment No. 2867, Consideration 16.
268Ibid. (“ Accordingly, the decision of the Managing Director to abolish it was taken without
authority.” (Emphasis added)).
106 Chapter 9. QUESTION VI
A. Lack of Jurisdiction ratione materiae: The Memorandum of Understanding
between the Conference of the Parties and the Fund is neither part of “the
terms of appointment of officials” no r of “the provisions of the Staff
Regulations” within the meaning of Article II(5) of the ILOAT Statute
236. The Fund respectfully invites the Court to find that the Memorandum of
Understanding between the Conference of the Parties of the UNCCD and the Fund
is neither part of the terms of appointment of officials nor of the provisions of the
Staff Regulations within the meaning of Article II, paragraph 5, of the ILOAT
Statute, and hence to find that the Tribunal lacked jurisdiction to entertain the
Complainant’s complaint. Accordingly, Qu estion VI should be answered in the
affirmative. Question VI reads as follows:
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 (h ereby 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?
237. As has been observed in the literature, “[t]he extent of the jurisdiction ratione
materiae of the administrative tribunals is somewhat less easy to ascertain” than
their jurisdiction ratione personae. 269 Jurisdiction ratione materiae concerns the
subject-matter over which the Tribunal may assert jurisdiction. In other words, is
the Tribunal competent to deal with this kind of dispute or complaint under the
document from which it derives jurisdiction? Generally speaking, “the task of the
[administrative] tribunals is to adjudicate disputes arising from the contracts or
the terms of employment.” 270
238. According to Article II, paragraph 5, of its Statute, the Tribunal is “competent to
hear complaints alleging non-observance, in substance or in form, of the terms of
appointment of officials and of provisions of the Staff Regulations of any other
intergovernmental international organisation” having accepted “the jurisdiction of
the Tribunal for this purpose,” which in this case can only mean IFAD. (Emphasis
added). In order to determine the jurisdiction of the Tribunal, it is thus not
necessary for the complainant to prove his or her right (that pertains to the
269P. Sands and P. Klein, Bowett’s Law of International Institution, 5thed. (London: Sweet &
Maxwell, 2001), p. 422.
270Ibid.
107 merits), but it is indispensable for the complainant to define the basis of his or her
action in order for the Tribunal to ascertain whether it falls within the sphere of
activity of the Tribunal or, in other words, whether the Tribunal is or is not
competent to hear it. As far as the Fund is concerned, according to the words
employed in Article II, paragraph 5, of the Tribunal’s Statute, the Tribunal is only
competent to hear complaints alleging non-observance, in substance or in form, of
the terms of appointment of officials and of provisions of the Staff Regulations of
the Fund. This coupling of the two categories of rules is designed to put them on a
footing of equality, in the sense that non-observance of either will give rise to
judicial proceedings and that it is the duty of the Tribunal to safeguard and protect
officials against their non-observance. 271 Any claim or part of a claim against the
Fund, even if filed by a staff member of the Fund, which does not allege the non-
observance, in substance or in form, of the terms of appointment of officials and of
provisions of the Staff Regulations of the Fund, falls outside the competence of the
272
Tribunal insofar as it concerns the Fund . In this sense, it does not matter
whether or not Complainant in the present case qualifies as a staff member of the
Fund. Accordingly, in a case where a complainant invoked the Regulations of the
United Nations Joint Staff Pension Fund, the Tribunal held that the “Tribunal is not
273
competent to interpret the Fund Regulations.”
239. Therefore, even assuming, arguendo, that it has jurisdiction ratione personae, for
the Tribunal to have jurisdiction ratione materiae under Article II, paragraph 5, of
its Statute, the complaint must either be “alleging non-observance, in substance
or form, of the terms of appointment” of the Complainant as an IFAD official or it
must allege non-observance “of provisions of the Staff Regulations of” IFAD, the
“intergovernmental international organisation” having submitted a declaration
recognizing the Tribunal’s jurisdiction under Article II, paragraph 5 “for this
purpose.” The latter words indicate that the subject-matter jurisdiction of the
Tribunal is limited to the two types of complaints mentioned in Article II,
paragraph 5. The two classes of complaints that the Tribunal is competent to hear
under that provision are: (1) complaints alleging “non-observance, in substance or
form, of the terms of appointment of officials” and (2) complaints alleging “non-
observance of provisions of the Staff Regulations.” Indeed, the Court has
271
Cf. Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Dissenting Opinion of Judge Badawi, I.C.J. Reports 1956, p. 77, at 123, 125.
272See in the same sense ILOAT Judgment No. 1105 of 3 July 1991 (Consideration 2).
273
ILOAT Judgment No. 1245 of 10 February 1993 (Consideration 19).
108 explained that “the scope” of jurisdiction under Article II, paragraph 5, covers “( a)
‘terms of appointment’ or (b) ‘Staff Regulations’.” 274
240. As regards the applicable standard of review, the Court has said that “[i]n order to
admit that the Tribunal had jurisdiction, it is sufficient to find that the claims set
out in the complaint are, by their nature, such as to fall within the framework of
Article II, paragraph 5, of the Statute of the Administrative Tribunal … .” 275
Recently, the Tribunal itself confirmed the foregoing in its Judgment No. 2952:
“The complainant does not allege the non-observance of any of the
terms of his appointment or of any of the Staff Regulations applicable
to him. Nor does he claim that the Agency has infringed his rights as a
member of the Staff Committee. [...] Further, he does not claim to
have suffered any loss, damage or other injury, and does not point to
any decision affecting him directly or which would have legal
consequences for him individually. Thus, he has not established any
cause of action [...] or raised any matter that may be the subject of a
276
complaint to the Tribunal.”
241. Thus, the question in the present case is whether the claims and pleas as
formulated in the Complainant’s complaint are, by their nature, such as to fall
within the framework of Article II, paragraph 5, of the Tribunal’s Statute. If they
are not, it was not open to the Tribunal to examine the Complainant’s pleas on this
point. As the Court has stated, “it is not open to the Court to go beyond the claim
as formulated by the [applicant] and it will not pursue its examination of this point
277
any further.”
242. Based on the text of the Complainant’s pl eadings submitted to the Tribunal, it is
clearly not possible to fit her complaints under the two grounds set forth in Article
II, paragraph 5, of the Tribunal’s Statute. The first two grounds included in the
complaint against which the Fund raised jurisdictional objections before the
278
Tribunal made no allegation whatsoever of “non-observance, in substance or in
274 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 89. Elsewhere, the Court stated that it “recognizes
that the Administrative Tribunal is a Tribunal of limited jurisdiction.” Ibid., p. 97.
275
Ibid., p. 88.
276
ILOAT Judgment No. 2952 of 8 July 2010.
277 Barcelona Traction, Light and Power Co mpany, Limited (Belgium v. Spain) , Judgment, I.C.J.
Reports 1970, p. 37, para. 49.
278“(1) The Managing Director exceeded his authority in deciding not to renew the complainant’s
contract” and “(2) The approved core budget did no t require elimination of complainant’s post.”
Complaint, paras. 17-25.
109 form, of the terms of appointment of officials and of provisions of the Staff
Regulations” of IFAD. The Complainant put her case on an entirely different basis,
which was described by the Tribunal in the following words: “[t]he complainant
relies on [Paragraphs 4 and 6 of Section III.A of the Memorandum of
Understanding between the Fund and the Conference of the Parties] to argue,
firstly, that the Managing Director exceeded his authority in deciding not to renew
her contract and, secondly, that the ‘cor e budget’ approved by the Conference did
279
not require the abolition of her post.” Instead of not pursuing its examination
of this point any further, the Tribunal proc eeded to adjudicate her claims, not with
reference to her contract or the Fund’s Staff Regulations, but with reference to
280
various provisions of the Memorandum of Understanding and Conference of the
Parties’ decisions. 281 Italsoisnoteworthythatthereisnofindingof“non-
observance” in the reasoning or dispositif of Judgment No. 2867.
243. According to the Court, “what must be a lleged, according to Article II, paragraph
5, is non-observance, namely, some act or omission on the part of the
Administration.” 282 “Administration” evidently means the defendant-organization
having issued the declaration specified in Article II, paragraph 5, of the Tribunal’s
Statute. In this case, it means some act or omission on the part of the Fund.
244. Given that the Tribunal asserted that “the MOU confers no power on the President
[of IFAD] to determine the conditions of appointment of the personnel of the
Global Mechanism,” 283 if it is accepted that the Complainant belonged to “the
personnel of the Global Mechanism,” it is difficult to see how the Tribunal could
entertain the Complainant’s arguments concerning her terms of appointment or
employment (termination) against the Fund (the organization to which the
President belongs) as derived from the Memorandum of Understanding, as
opposed to the Fund’s staff regulations—for it is only those staff regulations that
fall within the scope of the Tribunal’s jurisdiction ratione materiae under Article II,
paragraph 5, of its Statute. According to the Court, the words “complaints
alleging” in Article II, paragraph 5, “refer to what the complainant alleges—to that
on which he relies for the purpose of supporting his complaint.” The Tribunal
acknowledged expressis verbis that “[t]he complainant relies on [Paragraphs 4
and 6 of Section III.A of the Memorandum of Understanding] to argue, firstly, that
279
ILOAT Judgment No. 2867, Consideration 4.
280Ibid., Consideration 7.
281Ibid., Considerations 13-15.
282
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 88.
283
ILOAT Judgment No. 2867, Consideration 10.
110 the Managing Director exceeded his authority in deciding not to renew her contract
and, secondly, that the ‘core budget’ appr oved by the Conference did not require
284
the abolition of her post,”. Thus, in the view of the Tribunal, “that on which he
relies” in the case of the Complainant meant the Memorandum of Understanding,
and not IFAD’s staff regulations.
245. Article 6, section 8(d), of the Agreement Establishing IFAD states that the IFAD
President “shall organize the staff [of IFAD] and shall appoint and dismiss
members of the staff [of IFAD] in accordance with regulations adopted by the
Executive Board [of IFAD].” The IFAD President was not the one refusing to extend
the Complainant’s fixed-term contract. She was not extended by the Managing
Director of the Global Mechanism acting on behalf of the Global Mechanism, and
not the Fund.
246. The Memorandum of Understanding, which according to the Tribunal was the
document on which the Complainant relied for the purpose of supporting her
complaint, does not provide for the appointment of Global Mechanism staff by
IFAD or the IFAD President, except for the reference, in Section II.D., to the
appointment of the Managing Director of the Global Mechanism by the President
upon the nomination by the UNDP Administrator. In fact, Section III.A.3, under
the heading “Accountability to the Conference,” makes clear that “[t]he Managing
Director will be responsible for … staffi ng.” The Memorandum of Understanding
provides nowhere that “IFAD will be responsible for … staffing” of the Global
Mechanism or that IFAD’s “President will be responsible for … staffing.” Given that
it is undisputed that the Complainant was part of the staff of the Global
Mechanism, neither the Fund nor its President was responsible for her
appointment or employment/non-extension under the terms of the Memorandum
of Understanding.
247. As mentioned above, Article 6, Section 8(d), of the Agreement Establishing IFAD
states that the IFAD President “shall organize the staff and shall appoint and
dismiss members of the staff in accordance with regulations adopted by the
Executive Board.” The pertinent regulations are set out in a Human Resources
Policies Manual (“HRPM”) adopted by the President pursuant to the Human
Resources Policies (“HRP”) adopted by IFAD’s Executive Board. The HRP sets forth
“the broad principles in accordance with which the President shall organize and
manage” the staff of IFAD. According to the HRPM, the President may supplement
it by issuing administrative instructions.
284Ibid., Consideration 4.
111 248. The Court is invited to take note of the fact that the President’s Bulletin No.
PB/04/01 dated 21 January 2004 285 is not adopted pursuant to the HRP. The
basis for the President’s authority to stipulate to the matters addressed in that
Bulletin is found in Section II.A of the Memorandum of Understanding in
conjunction with Section VI thereof referring to “personnel, financial,
communications and information management services.” Thus, the Tribunal was
wrong in concluding that “the MOU confers no power on the President to determine
the conditions of appointment of the personnel of the Global Mechanism and, thus,
the President has authority to do so only if they are staff members of the Fund.” 286
249. Both parties invoked the President’s Bull etin No. PB/04/01 in the proceedings
before the Tribunal. Paragraph 11(f) of the Bulletin clearly distinguishes between
“IFAD and Global Mechanism staff.” By re ferring to “IFAD and Global Mechanism
staff” in combination with “the two entities” in the same provision, the President’s
Bulletin leaves no doubt about the fact that IFAD staff are separate from Global
Mechanism staff and are, therefore, not to be assimilated for purposes of Article II,
paragraph 5, of the Tribunal’s Statute or Article 6, Section 8(d), of the Agreement
Establishing IFAD. Moreover, paragraph 11(c) of the same document provides as
follows:
“All fixed-term contracts of employment for the Global Mechanism
shall be for a maximum of two years, renewable, and subject to the
availability of resources. IFAD’s rules and regulations on the
provision of career contracts for fixed-term staff shall not apply to
the staff of the Global Mechanism , except for those that have
already received a career contract as a result of their earlier
employment with IFAD.” (Emphasis added)
250. It is beyond doubt that the Complainant fell within the category of “fixed-term
contracts of employment for the Global Mechanism … for a maximum of two years,
renewable, and subject to the availability of resources,” i.e., the first sentence of
paragraph 11(c) of the President’s Bulletin.
251. The second sentence of paragraph 11(c) of the President’s Bulletin underscores
that the Tribunal could not, using the words contained in Article II, paragraph 5, of
its Statute, “hear complaints alleging non-observance, in substance or form, … of
[applicable] provisions of the Staff Regulations” of the Fund in the case of the
Complainant, given that the pertinent regulations were explicitly declared to be
285
Document V.8.
286ILOAT Judgment No. 2867, Consideration 10.
112 inapplicable to the staff of the Global Mechanism by the Bulletin and such staff
included the Complainant.
252. Faced with a complaint alleging “non-observance, in substance or form, of the
terms of appointment of officials,” the Tribunal “is entitled to ascertain and to
287
determine what are the texts applicable to the claim submitted to it.” While it is
unclear from this statement of the Court which texts the Tribunal may actually
examine in adjudicating upon a complaint that is otherwise within its jurisdiction,
this question is immaterial in this case involving a complaint that failed to allege
“non-observance, in substance or form, of the terms of appointment of officials
and of provisions of the Staff Regulations” of IFAD.
253. The Court also has stated that “[i]n order to determine the jurisdiction of the
Tribunal, it is necessary to ascertain whether the terms and the provisions invoked
appear to have a substantial and not merely an artificial connexion with the refusal
288
to renew the contracts.”
254. Whatever “the terms of appointment” of the Complainant were, they have nothing
to do with the Memorandum of Understanding, an agreement between the
Conference of the Parties and the Fund from which the Complainant can derive no
individual rights. It has been pointed out that “[i]t is a general principle of law,
recognized in national legal systems and by international jurisprudence, that a
Tribunal must base its decision on the legal rights of the parties.” 289 The
Memorandum of Understanding is an international agreement governed by
international law and concluded in written form as meant in the 1969 Vienna
Convention on the Law of Treaties and the 1986 Vienna Convention on the Law of
Treaties between States and Internationa l Organizations or between International
Organizations. It was entered into by th e Conference of the Parties and the Fund
in direct implementation of the Conferen ce of the Parties’ Decision 24/COP.1,
290
which was adopted pursuant to Article 21, paragraph 6, of the Convention. For
this reason alone, the Tribunal was not competent to entertain the Complainant’s
arguments as derived from the Memorandum of Understanding, the Convention, or
287 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports, p. 77, at 88. Inaddition, “it is necessary that the complaint should
indicate some genuine relationship between the complaint and the provisions invoked.” Ibid., p. 89.
288
Ibid., 89.
289 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of Judge Read, I.C.J. Reports, p. 77, at 150.
290Art. 21, para. 6, of the Convention reads as follows: “The Conference of the Parties shall, at its
first session, make appropriate a rrangements with the organization it has identified to house the
Global Mechanism for the administ rative operations of such Mech anism, drawing to the extent
possible on existing budgetary and human resources.”
113 Conference of the Parties’ decisions. The Memorandum of Understanding is plainly
outside the scope of Article II, paragraph 5, of the Tribunal’s Statute. Yet the
Tribunal acknowledged that “[t]he complainant relies on [Paragraphs 4 and 6 of
Section III.A of the Memorandum of Unders tanding] to argue, firstly, that the
Managing Director exceeded his authority in deciding not to renew her contract
and, secondly, that the ‘core budget’ appr oved by the Conference did not require
the abolition of her post,” 291 and it proceeded to adjudicate her claims with
reference to various provisions of the Memorandum of Understanding 292 and even
Conference of the Parties’ decisions. 293 In reaching its conclusions, the Tribunal
examined the internal decision-making pr ocess of the Convention, even though
neither the Convention nor any of its organs or agents is subject to the Tribunal’s
jurisdiction. According to the Tribunal:
“The MOU makes it clear that the Global Mechanism functions under
the authority of the Conference. Thus, the conclusion that the
Conference decision required the continuation of the approved posts,
including that of the complainant, directs the further conclusion that
the abolition of her post was impliedly forbidden by the Conference
decision. Accordingly, the decision of the Managing Director to abolish
it was taken without authority.
…
Because the Managing Director had no authority to abolish the
complainant’s post, his decision not to renew the complainant’s
contract on the ground of its abolition constituted an error of law. The
President of the Fund erred in law in not so finding when considering
her internal appeal. It follows that the President’s decision of 4 April
2008 dismissing the complainant’s internal appeal must be set
aside.” 294
291
ILOAT Judgment No. 2867, Consideration 4.
292The Tribunal also relied on various provisionsof the Memorandum of Understanding in support of
its finding 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.” ILOAT Judgment No. 2867, Consideration 7.
293
See, e.g., ILOAT Judgment No. 2867, Consideration 13 (“The question of the Managing Director’s
authority to abolish the complainant’s post depends on whether, in the circumstances, that course
was impliedly prohibited by the terms of the MOU and the decision of the Conference relating to
staffing and budget for the 2006-2007 biennium”).
294Ibid., Considerations 16-17 (emphasis added).
114 295
255. In other words, the key holding (dictum) in the Tribunal’s Judgment No. 2867 is
inextricably linked to the Tribunal’s findings based on the Memorandum of
Understanding and Conference of the Parties’ decisions concerning the budget of
the Conference of the Parties and the Global Mechanism established by the
Conference of the Parties, whereas the Tribunal had acknowledged that “[t]he
argument with respect to the Tribunal’s jurisdiction is based, in the main, on the
proposition that ‘[t]he Fund and the Global Mechanism are separate legal
296
identities’.”
256. The Court has linked the express reference in a fixed-term contract to “Staff
Regulations and Rules” to the question whether “the complainant, in claiming to
possess a right to renewal of his contract and in claiming that that right had been
infringed, was placing himself on the ground of non-observance of the terms of
appointment,” the expression employed in Article II, paragraph 5, of the Tribunal’s
Statute. 297 In the Court’s view, the staff regulations “constitute the legal basis on
which the interpretation of the contract must rest.” This statement means that for
the Tribunal to have jurisdiction over a complaint alleging non-observance of the
terms of appointment under Article II, paragraph 5, the complainant must invoke
the contract and, if the contract refers to staff regulations or such regulations
otherwise apply to the complainant, the complainant must also invoke such staff
regulations, which constitute the legal basis on which the interpretation of the
contract must rest. In the Unesco Case, the Court observed that the complainant
contested the Unesco Director-General’s propositions “in reliance not only on the
terms of the contract, but also on the Staff Regulations.” In stark contrast, in
Judgment No. 2867, the Tribunal acknowledged that “[t]he complainant relies on
[Paragraphs 4 and 6 of Section III.A of the Memorandum of Understanding] to
argue, firstly, that the Managing Director exceeded his authority in deciding not to
renew her contract and, secondly, that the ‘core budget’ approved by the
298
Conference did not require the abolition of her post,” and it proceeded to
adjudicate her claims with reference to various provisions of the Memorandum of
Understanding and Conference of the Parties’ decisions. In other words, the
Complainant relied on the Memorandum of Understanding and on Conference of
the Parties’ decisions, as opposed to the contract or any applicable staff
regulations, for the purpose of supporting her complaint, and the Tribunal relied
exclusively on the Memorandum of Understanding and on Conference of the
295
Ibid., p. 18: “1. The President’s decision of 4 April 2008 is set aside.”
296Ibid., Consideration 5.
297
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 94.
298
ILOAT Judgment No. 2867, Consideration 4.
115 299
Parties’ decisions in upholding her complaint. Therefore, in contrast to the
Unesco Case, the question was not “one of a ‘dispute concerning the interpretation
and application of the Staff Regulations an d Rules of the defendant Organisation’”
on the basis of which “the Tribunal was justified in confirming its jurisdiction,” 300
but it was one that the Tribunal treated as a dispute concerning the interpretation
and application of the Memorandum of Un derstanding and on Conference of the
Parties’ decisions. Given that the Tribunal chose this treatment, it was not
justified in confirming its jurisdiction and therefore its decision cannot stand: “It
must be obvious that judgments given by a Tribunal which is without jurisdiction
over the subject-matter can have no validity.” 301
B. Conclusion
257. For the reasons set out above, the Fund su bmits that the claims formulated in the
Complainant’s complaint, at least items B(1) and B(2) of the complaint, were, by
their nature, such as to fall outside the framework of Article II, paragraph 5, of the
Tribunal’s Statute, and given that the Tribunal lacked jurisdiction to rule on them,
Question VI should be answered in the affirmative.
Chapter 10. QUESTION VII
258. The Fund submits that Question VII shou ld be answered in the affirmative.
Question VII reads as follows:
“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?”
A. The Tribunal failed to recognize that the Fund, per its President, acted as
an agent of the Conference of the Parties when it implemented the
decision of the Managing Director of the Global Mechanism, leaving the
Tribunal without jurisdiction
259. Given the relationship of agent and principal under the Memorandum of
Understanding between the Fund and the Conference of the Parties, the Tribunal
should have recognized that the Fund, per its President, acted as agent of the
Conference of the Parties and that, therefore, it lacked jurisdiction in light of the
299Ibid., paras. 13-17.
300
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 97.
301
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of President Hackworth, I.C.J. Reports 1956, p. 77, at 166, 122.
116 fact that the Conference of the Parties has not recognized the Tribunal’s
jurisdiction and the acts of the Conference of the Parties, casu quo, the Global
Mechanism, do not fall within the Tribunal’s jurisdiction. Moreover, exercising
jurisdiction over a principal – i.e. review ing the acts of the Managing Director of
the Global Mechanism – through an agent – i.e., IFAD, per its President – in the
absence of recognition of the Tribunal’s jurisdiction by that principal amounts to a
fundamental fault in the procedure followed by the Tribunal due to the fact that
IFAD, the agent in this case, had no power of attorney to represent the Conference
of the Parties in any disputes.
260. In Consideration 17 of Judgment No. 2867, the Tribunal, after finding that the
Managing Director’s “decision not to renew the complainant’s contract on the
ground of its abolition constituted an error of law,” proceeded to find that “[i]t
follows that the President’s decision of 4 April 2008 dismissing the complainant’s
internal appeal must be set aside.” While the Tribunal made no mention of the
Fund in this part of its reasoning – in other words, did not attach the conclusion
that IFAD was liable for the President’s decision –, the operative paragraph of
Judgment No. 2867, after declaring that “[t]he President’s decision of 4 April 2008
is set aside,” contained no fewer than three separate holdings directing that “IFAD
shall pay” certain amounts to the Complainant. In other words, in order to hold
the agent (IFAD) liable, the Tribunal confirmed and exercised jurisdiction over a
principal that has not recognized the Tribunal’s jurisdiction.
261. Judgment No. 2867 therefore also raises ques tions concerning the role of IFAD’s
President under the Memorandum of Understanding and its impact on the Fund. It
is premised on a view regarding international institutional law which seems to
exclude two possibilities: (a) that two or more international organizations may
have common organs and even a common chief administrative officer, and (b)
that an organ or chief administrative officer of an organization may be placed at
the disposal of other international persons. That image of international institutional
law clearly does not accord with contemporary international practice. International
organizations sharing the same organs are quite common, 302 whereas certain
global and regional multilateral financial institutions share the same chief
administrative officer. 303Whether the conduct of such organs or officials must be
attributed to the one or the other organization involved will depend on the
question in which capacity the common organ or common official acted in a
particular case.
302See for a discussion of this practice, see H.G. Schermers and N.M. Blokker, International
Institutional Law, 4hrev. ed. (Boston/Leiden: Martinus Nijhoff, 2003), paras. 1715-1720.
303E.g., the World Bank Group comprising the IBRD, IDA, IFC, and MIGA.
117 262. The President of IFAD signed the Memo randum of Understanding between the
Conference of the Parties and the Fund “FOR THE INTERNATIONAL FUND FOR
304
AGRICULTURAL DEVELOPMENT.” He signed the Memorandum of Understanding
on behalf of the Fund as “the legal representative of the Fund” under Article 6,
Section 8(h), of the Agreement Establishing IFAD.
263. In addition to signing the Memorandum of Understanding as IFAD’s legal
representative, the President also was assigned certain functions under the
Memorandum of Understanding. Those functions are most accurately described as
purely supervisory and facilitating functions. In exercising those functions, which
are entirely and exclusively in support of the functions of the Global Mechanism,
the President cannot be said to be discharging functions of the Fund. Thus, the
role of the IFAD President under the Memorandum of Understanding is different
from the role of the President as an organ under the Agreement Establishing IFAD.
According to Article 6, Section 8(f), of the Agreement Establishing IFAD, “[t]he
President and the staff, in the discharge of their functions [for IFAD], owe their
duty exclusively to the Fund and shall neither seek nor receive instructions in
regard to the discharge thereof from any authority external to the Fund.” The
Memorandum of Understanding does not contain a similar provision. Moreover,
Article 6, Section 8(d), of the Agreement Establishing IFAD provides that the
“President … , under the control and direction of the Governing Council and the
Executive Board, shall be responsible for conducting the business of the Fund.”
The Memorandum of Understanding lacks a similar provision.
264. The role assigned to the President of IFAD under Sections II.D and III of the
Memorandum of Understanding underscores the purely supporting/facilitating or
supervisory role of the President assigned to him jointly by the Conference of the
Parties and the Fund under the Memorandum of Understanding. Under Section
II.D, the President is given the special authority to appoint a candidate for
Managing Director of the Global Mechanism “nominated by the Administrator of
UNDP.” In other words, the President does not select and nominate any
candidates, and in appointing the Managing Director of the Global Mechanism, he
acts pursuant to the special authority vested in him by Section II.D of the
Memorandum of Understanding, and not pursuant to his authority under Article 6,
Section 8(d), of the Agreement Establishing IFAD. The Managing Director of the
Global Mechanism is “housed,” i.e., occupies office space, in the Office of the
President at IFAD’s headquarters in Rome. According to Section III.A.2 of the
Memorandum of Understanding, the Managing Director of the Global Mechanism is
to submit reports to the Conference of the Parties through (“on behalf of”) the
President. Under Section III.A.4, the Pr esident is charged with reviewing and
304Memorandum of Understanding, p. 6, Annex I to Fund doc. EB 99/66/INF.10 (28 April 1998).
118 approving the “programme of work and budget of the Global Mechanism” prepared
by the Managing Director “before being forwarded to the Executive Secretary of
the Convention for consideration.” Pursuant to Section III.B, the Managing
Director of the Global Mechanism is to submit a report to each ordinary session of
the Conference of the Parties on the acti vities of the Global Mechanism through
(“on behalf of”) the President.
265. Based on the foregoing, by performing a limited intermediary or facilitating
function under the Memorandum of Understanding in his individual capacity, the
President is not discharging functions under the Agreement Establishing IFAD. This
situation is not unique in international law. For instance, under Article 41, fourth
paragraph, of the Constitution of the International Criminal Police Organization
(INTERPOL), the Executive Committee and the Secretary General of that
organization may accept duties from other international organizations or in
application of international conventions. In such cases the organ of an organization
is placed at the disposal of another organization, with the consequence that the
situation envisaged by Draft Article 6 of the ILC’s Draft Articles on Responsibility
of International Organizations may arise:
“The conduct of an organ of a State or an international organization
that is placed at the disposal of another international organization
for the exercise of one of that organization’s functions shall be
considered under international law an act of the latter organization
to the extent that the organization exercises effective control over
the conduct of the organ.”
266. Whilst this provision requires effective control over the conduct of the organ,
where, as in the present case, an international organization agrees to lend the
services of one of its organs or officers to another organization, without submitting
such organ or official to the effective control of the latter, the general rules
concerning agency can be said to apply.
267. When the relationship between the Conference of the Parties of the UNCCD and
the Fund, as spelled out in the Memorandum of Understanding, is considered in
the light of the definition of the term “agent” in the Court’s Opinion in Reparation
for Injuries, it becomes clear that the Fund, per its President, is the agent whereas
the Conference of the Parties is the prin cipal. As explained above, the functions
performed by the Global Mechanism are no t those of the Fund but of the UNCCD.
Under the Memorandum of Understanding, the Fund accepted that its President
would act as agent of the Conference of the Parties insofar as it relates to the
administrative services to be provided by the Fund under the Memorandum of
Understanding. This implies that when the Fund, per its President, implements a
staffing decision of the Managing Director of the Global Mechanism, it acts as an
119 agent of the Conference of the Parties within the meaning of the term “agent” as
defined in Reparation for Injuries . Accordingly, the decision of the Managing
Director of the Global Mechanism not to renew the Complainant’s contract and the
subsequent execution of that decision by the IFAD President is not to be regarded
as an act performed as one of the functions of the Fund. Under these
circumstances, that conduct cannot be attributed to the Fund.
268. The foregoing conclusion follows from the following analysis of the concept of
agency in international law. An agency relationship exists where a principal has
empowered an agent to act on its behalf. The existence of such agency
relationships in a treaty under international law has been recognized by the Court
in Rights of Nationals of the United States of America in Morocco in respect of the
Protectorate Treaty of 1912:
“Under this Treaty, Morocco remained a sovereign State but it made
an arrangement of a contractual character whereby France
undertook to exercise certain sovereign powers in the name and on
behalf of Morocco, and, in principle, all of the international relations
305
of Morocco.”
269. Four important elements can be discerned from the Court’s Judgment. First, the
existence of an agency relationship requir es that both the principal and the agent
306
are separate legal entities. Second, inherent in the fact that the relationship is
established in a consensual legal instrument is that consent is a prerequisite for
the existence of an agency relationship. Third, the consensual foundation of the
relationship and the fact that the parties retain their independence towards each
other entails that it can be terminated at any time in accordance with the
procedures for the termination of treaties and other international agreements
under international law. Fourth, the relationship must entail that one party agrees
to perform functions on behalf of the other.
B. The requirement that the principal and the agent be separate legal
entities
270. With regard to the requirement that both the principal and the agent be separate
legal entities, the Fund wishes to recall Consideration 6 of Judgment No. 2867:
305Case concerning Rights of Nationals of the United States of America in Morocco , Judgment of 27
August 1952, I.C.J. Reports 1952, p. 176, at 188. For a discussion of the issues of agency addressed
in this judgment, see C. Chinkin, Third Parties in International Law (Oxford University Press, 1993),
pp. 65-66.
306
CfD.Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford
Monographs in International Law, 2005), p. 34.
120 “The fact that the Global Mechanism is an integral part of the
Convention and is accountable to the Conference does not
necessitate the conclusion that it has its own legal identity. Rather,
and as the term ‘Global Mechanism’ suggests, it merely indicates
that it is the nominated mechanism by which the Conference gives
effect to certain obligations created by the Convention. Nor does
the stipulation in the MOU that the Global Mechanism is to have a
’separate identity’ indicate that it has a separate legal identity or,
more precisely for present purposes, that it has separate legal
personality. In this last regard, the difference may conveniently be
illustrated by reference to a distinct trade name under which a
person or corporation carries on business. The trade name
frequently constitutes ’the identity’ or, perhaps, one of ’the
identities’ of the person or corporation concerned, but it is the
person or corporation that has legal personality for the purposes of
suing and being sued. It is in this context that the statement that
the Global Mechanism is to be ‘an organic part of the structure of
the Fund’ is to be construed.”
271. The Fund submits that the Tribunal’s statements in the aforementioned
consideration do not support the conclusion drawn by the Tribunal. If, as the
Tribunal rightly states, “the Global Mechanism is an integral part of the Convention
and is accountable to the Conference” and the Global Mechanism is “the
nominated mechanism by which the Conference gives effect to certain obligations
created by the Convention”, then the question of whether or not it possesses legal
personality is not determinant. Rather, the question is whether the Global
Mechanism is an organ of the Fund or of the Convention. The Tribunal construes
the Memorandum of Understanding between the Fund and the Conference of the
Parties to mean that the Global Mechanism is an organ of the Fund, without
addressing the question of whether it remained an organ of a legal person or
entity that is distinct from the Fund. Implied in the Tribunal’s failure to address the
latter question is the suggestion that the Convention has not established an
international legal person of which the Global Mechanism is an organ. But if this is
really what is suggested by the Tribunal, then the very Memorandum of
Understanding would be an agreement between the Fund, on the one hand, and all
the contracting parties of the Convention, on the other. In that situation, as the
Court explained in the case concerning Certain Phosphate Lands in Nauru , the
Global Mechanism would not have an international legal personality distinct from
the States parties to the Convention, in which case the conduct of the Global
121 Mechanism would have to be attributed to those parties. 307 In other words, it still
would not necessarily follow from any determination that the Global Mechanism
has no legal personality that, therefore, its conduct is attributable to the Fund. An
agency relationship would still exist – which would bar the attribution of conduct to
the Fund - if it can be established that the undertakings of the Fund under the
Memorandum of Understanding are to perform functions on behalf of the
Conference of the Parties.
272. In its analysis, the Tribunal ignored the important fact that the Global Mechanism
is a grant recipient of the Fund. By defi nition, the relationship between a grantor
and a grantee presumes that the two are se parate entities. The existence of such
a grant relationship was known to the Tribunal, but it failed to take this important
fact into account. It is evident from the Memorandum of Understanding that, as
the institution housing the Global Mechanism, the Fund has undertaken to support
the Global Mechanism through the provision of grants, with a view to allowing it to
provide financial support for “enabling activities” to be undertaken by the affected
developing parties to the Convention, nongovernmental organizations (NGOs) and
civil-society organizations. Such an undertaking was included in the Fund’s
proposal to house the Global Mechanism. More specifically, Article II.B(c) of the
Memorandum of Understanding between the Conference of the Parties and the
Fund stipulates, inter alia, that:
“The Fund will provide a grant contribution as part of the initial
capitalization of the SRCF (Special Resources for CCD Finance)
Account and seek matching financing from interested donors, taking
into account the offer made by IFAD at the first ordinary session of the
COP...”
273. The Memorandum of Understanding therefore envisages the opening of an account
called the Special Resources for CCD Financ e (SRCF) Account, in which the Fund’s
contributions and matching financing will be held by the Fund, upon receipt. As
specified in paragraph II.B. (c) of the Memorandum of Understanding between the
Conference of the Parties and the Fund regarding the modalities and
administrative operations of the Global Mechanism, the Fund has opened a
“Special Resources for the CCD Finance (SRCF) Account” to receive “amounts
made available for the use, as reques ted and appropriate, of the Global
Mechanism … for its functioning and activities from bilateral and multilateral
resources through trust fund(s) and/or equivalent arrangements established by
[the fund], including the proceeds of cost-sharing arrangements with the Global
307
Certain Phosphate Lands in Nauru (Nauru v. Australia) , Preliminary Objections, Judgment, I.C.J.
Reports 1992, p. 240, at 258, para. 47. See also R. Higgins, Themes and Theories – Selected Essays,
Speeches and Writings in international law, Vol. 2 (Oxford University Press, 2009), pp. 835-838.
122 Mechanism”. The SRCF Account has been opened in conformity with paragraph
4(f) of the Annex to Decision 24/COP.1 of the Conference of the Parties. The SRCF
Account is to be used to support the de velopment of national, regional and sub-
regional Action Programmes in accordance with Article 9 of the Convention.
Resources held in the SRCF Account shall also be used for the implementation of
initiatives, activities and the design of projects and programmes derived from such
Action Programmes, either in their totality or on a cost sharing arrangement with
one or several other sources of funding. Th e initiatives, activities and design of
projects and programmes eligible for financial support from the SRCF Account may
or may not have been developed with support from the Global Mechanism. They
shall, however, form part of a coherent set of interventions designed to foster the
efficient implementation of the Convention at national, regional or sub-regional
levels. In conformity with the Convention, funds held in the SRCF Account may
benefit Parties to Annexes I, II and III of the Convention and/or its partners in
civil society, as well as organisations and entities involved in the transfer of
science and technology.
274. The Memorandum of Understanding also envisages two other accounts: (a) the
Core Budget Administrative Account, in which amounts received from the
allocation of the Core Budget of the Convention by the Conference of the Parties
will be held, in order to meet the administrative and operational expenditure of the
Global Mechanism; and (b) The Voluntary Contributions Administrative Expenses
Account, in which voluntary contributions from multilateral and bilateral sources,
including NGOs and the private sector, to meet the administrative and operational
expenditures of remuneration to the Global Mechanism for services rendered to a
specific donor or group of donors, will be received.
275. The establishment of such accounts, which are held separate from the Fund’s
resources, is addressed in President’s Bulletin No. 99/10 of 4 October 1999. From
the point of view of international law, these are accounts held and administered by
the Fund on behalf of the Conference of the Parties for the purpose of
308
administering the Global Mechanism. The resources in these accounts are not
resources of the Fund within the meaning of Article 4 of the Agreement
Establishing IFAD. This is expressly stipulated in the following terms in Article II.C
of the Memorandum of Understanding:
308For examples of the practice of other internationa l organizations with regard to the administration
of resources of third parties in administered a ccount, reference is made to the practice of the
International Monetary Fund (IMF). The IMF may establish administered accounts for purposes such
as financial and technical assistance that are consistent with the Articles. One such account is the
“Japan Administered Account for Sele cted IMF Activities (JSA)”. For a brief legal explanation, see: J.
Gold, Interpretation: The IMF and International Law (London/The Hague/Boston, Kluwer Law
International Law, 1996), p. xxxi.
123 “With respect to the funds allocated from the core budget of the
Convention and received by the Fund under (a) above, the rules of
procedure and financial rules adopted by the Conference shall apply to
the transfer to IFAD of the said funds. With respect to the funds
received by IFAD under (a), (b) and (c) above, all these amounts shall
be received, held and disbursed and the said accounts shall be
administered by the Fund in accordance with the rules and procedures
of the Fund, including those applicable to the management of the
Fund’s own supplementary funds (trust funds).”
276. The existence of such a separate ownership of financial resources underscores the
fact that at least two distinct legal persons are involved.
C. The requirement of consent
277. The foregoing leads to the second precondition for the existence of an agency
relationship as understood by the Court in Rights of Nationals of the United States
of America in Morocco. While it is accepted that the role of consent in the
establishment of an agency relationship can be guaranteed by means other than
309
by requiring the conclusion of a treaty, in the present case such an international
agreement does exist in the form of the Memorandum of Understanding between
the Conference of the Parties and the Fund.
278. The element of consent is clearly manifested by the actions undertaken by the
supreme bodies of the parties to the Memo randum of Understanding leading up to
its signature. The First Conference of the Parties, held in Rome between 29
September and 10 October 1997, selected the Fund to house the Global
Mechanism. It also requested that the Secretariat, in consultation with the Fund,
develop a Memorandum of Understanding between the Conference of the Parties
and the Fund for consideration and adoption at the second session in 1998. The
main operative paragraphs of the decision of the Conference of the Parties are
reproduced in full below:
“1. Decides to select IFAD to house the Global Mechanism on the basis
of the criteria agreed on in Section B of the Annex to INCD
decision 10/3:
2. Decides also that the Global Mechanism, in carrying out its
mandate, under the authority and guidance of the COP, should
perform the functions described in the annex to this decision;
309
CfD.Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford
Monographs in International Law, 2005), p. 36.
124 3. Requests the secretariat, in consultation with the organisation, to
house the Global Mechanism, as well as the other two
collaborating institutions referred to in Decision 25/COP.1, to
develop a memorandum of understanding between the COP and
appropriate body or organisation for consideration and adoption at
the second session of the COP”.
279. Since the Fund’s acceptance of the decision of the Conference of the Parties was
within the prerogative of the Governing Council, at its Twenty-First Session held in
February 1998, the Council, upon the recommendation of the Executive Board,
adopted Resolution 108/XXI, containing the following operative paragraphs:
“1. IFAD shall accept the decision of the Conference of the Parties
(COP) of the CCD at its First Session to select IFAD to house the Global
Mechanism hereof.
2. The Executive Board is authorized to approve the modalities,
procedures and administrative arrangements to be contained in a
Memorandum of Understanding between the COP and IFAD for the
housing of the Global Mechanism by IFAD.
3. The President of IFAD is authorized to sign a Memorandum of
Understanding between the COP and IFAD, containing such
arrangements as the Executive Board may approve for the housing of
the Global Mechanism.
4. The President of IFAD is requested to report periodically to the
Executive Board on the administrative arrangements for the housing of
the said Global Mechanism in IFAD and on such activities as IFAD may
undertake in support of the Global Mechanism, while also keeping the
Executive Board informed of the activities of the Global Mechanism.”
280. It is clear from the foregoing that, unlike the situation where an international
organization unilaterally establishes a subsidiary body or a department within its
secretariat, the relationship regarding the housing of the Global Mechanism by the
Fund was freely established between the Conference of the Parties and the Fund
through joint action.
D. The revocable nature of the hosting arrangement
281. The third condition for the existence of an agency relationship, i.e. revocability, is
satisfied by Article VII.C of the Memorandum of Understanding:
“The present Memorandum of Understanding may be terminated at the
initiative of the Conference or the Fund with prior written notice of at
125 least one year. In the event of termination, the Conference and IFAD
will jointly reach an understanding on the most practical and effective
means of carrying out any responsibilities assumed under the present
Memorandum of Understanding.”
282. It will be noted that, contrary to the Fund’s submission to the Tribunal with regard
to the need for an amendment of the Agreement Establishing IFAD (and, one may
add, an amendment of the Convention as well), in the event that it will have to be
concluded that the Global Mechanism is an organ of the Fund, the Tribunal’s
analysis leads to the conclusion that the Global Mechanism is an organic part of
the Fund merely by virtue of the Memorandum of Understanding:
“The words ‘an organic part of the structure of the Fund’ do not fall for
consideration in isolation from other provisions of the MOU. It is
significant that, according to the MOU, the Managing Director is to
report to the President of the Fund. Moreover, the chain of
accountability does not run directly from the Managing Director of the
Global Mechanism to the Conference but ‘directly from the Managing
Director to the President of the Fund to the Conference’. Similarly,
’[t]he Managing Director […] reports to the Conference on behalf of
the President of the Fund’ (emphasis added). The President of the
Fund is to review the programme of work and the budget prepared by
the Managing Director of the Global Mechanism before it is forwarded
to the Executive Secretary of the Convention for consideration.
Additionally, the Global Mechanism is not financially autonomous.
Rather, the Conference authorises the transfer of resources to the
Fund for the operating expenses of the Global Mechanism. When
regard is had to these provisions in the MOU, it is clear that the words
’an organic part of the structure of the Fund’ indicate that the Global
Mechanism is to be assimilated to the various administrative units of
the Fund for all administrative purposes. 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. Given
this, it is wrong to say that to treat the Global Mechanism as part of
the Fund would require an amendment to the Convention and, also, to
the Agreement Establishing IFAD.” (Consideration 7)
283. The foregoing analysis serves as evidence of the Tribunal’s failure to acknowledge
the concept of agency in international law and its application to the Memorandum
of Understanding, as well as a disregard of the applicable rules of international law
concerning the interpretation of treaties.
126 E. The requirement that the agent act on behalf of the principal
284. As regards the Tribunal’s failure to acknowledge the concept of agency in
international law and its application to the Memorandum of Understanding, the
following aspects should be highlighted.
285. An important consequence of an agency relationship is that an agent, when
exercising the powers conferred by the instrument establishing the agency, can
310
alter the legal relationship between the principal and third parties. The acts
performed by the agent within the limits of its authority bind the principal as if
311
they had been personally performed by the latter. Thus, the Fund, acting as an
agent, may implement decisions of the Managing Director of the Global Mechanism
to engage and release staff, without establishing or terminating a legal relationship
with the Fund itself. The same is true with regard to the administration of the
resources of the Global Mechanism. Indeed, the execution of payments to third
parties ordered by the Managing Director of the Global Mechanism are not
payments made in the name of the Fund itself. Therefore, the observation in
Consideration 7 of Judgment No. 2867 that “the Global Mechanism is not
financially autonomous,” neither by itself nor in combination with the other
observations made in that context support the Tribunal’s conclusion that the
Global Mechanism is an organ of the Fund.
286. Another important consequence of an agency relationship is that the principal is
responsible for its agent’s acts that ar e within the scope of the authorized
312
representational powers. The disregard of the concept of agency is manifested
by the Tribunal’s decision that, notwithstanding the fact that the Memorandum of
Understanding underscores the parties’ separate financial ownership, the Fund is
to pay the Complainant material damages equivalent to the salary and other
allowances she would have received if her contract had been extended for two
years from 16 March 2006, together with interest at the rate of 8 per cent per
annum from due dates until the date of payment, as well as moral damages in the
sum of 10,000 Euros. Thus, the Tribunal is forcing the Fund to use its own
resources in order to pay for actions attributable to the Global Mechanism, despite
the fact that the resources of the two are not supposed to be co-mingled.
310CfD.Sarooshi, International Organizations and th eir Exercise of Sovereign Powers (Oxford
Monographs in International Law, 2005), p. 50.
311A.P. Sereni, “Agency in International Law,” 34 AJIL (1940), pp. 630-688, at 655.
312 Cf D. Sarooshi, International Organizations and their Ex ercise of Sovereign Powers (Oxford
Monographs in International Law , 2005), pp. 50-51; A.P. Sereni, “Agency in International Law,” 34
AJIL (1940), pp. 630-688, at 655.
127 287. Finally, the existence of an agency relationship imposes an obligation on the agent
to act in the interests of the principal.13As the Fund explained in the proceedings
before the Tribunal, 314 it must defer to the Managing Director of the Global
Mechanism on the issue of the justification of the non-renewal of the contract of
the Complainant for budgetary reasons. In this regard the Fund wishes to recall
that decisions regarding the staffing and budget of the Global Mechanism are the
prerogatives of the Conference of the Parties. According to Section II.A.6 of the
Memorandum of Understanding, it is the Conference that approves the programme
of work and the budget of the Global Me chanism and it authorizes the Executive
Secretary of the Convention to transfer resources from the General Fund of the
Convention to IFAD. These funds are administered by the Fund upon the
instructions of the Managing Director of the Global Mechanism, who informs the
Fund of the staff needed, the cost of which shall be reimbursed to the Fund under
Section VI of the Memorandum of Understanding. Therefore, the Fund has no
authority to examine whether the core budg et approved by the Conference of the
Parties required the elimination of the Complainant’s post, lest the Fund be placed
in a position where it can impose staff on the Global Mechanism and then claim
reimbursement for staff that the latter considers is no longer needed.
F. Conclusion
288. For the reasons set out above, the Fund submits that Question VII should be
answered in the affirmative.
Chapter 11. QUESTION VIII
A. In deciding to substitute the disc retionary decision of the Managing
Director of the Global Mechanism with its own, the Tribunal acted outside
its jurisdiction and such decision co nstituted a fundamental fault in the
procedure followed
289. The Fund submits that Question VIII shou ld be answered in the affirmative.
Question VIII reads as follows:
“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?”
313A.P. Sereni, “Agency in International Law, 34AJIL (1940), pp. 630-688, at 655; D. Sarooshi,
International Organizations and their Exercise of Sovereign Powers (Oxford Monographs in
International Law, 2005), p. 51.
314See Reply, paras. 60-61.
128 290. Even if the Managing Director’s conduct of which the Complainant complained
before the Tribunal could be said to be IFAD’s conduct or could otherwise be
attributable to IFAD so as to come within the Tribunal’s jurisdiction, quod non,
Section III.A.4 of the Memorandum of Understanding provides that “[t]he
Managing Director will be responsible for … staffing.” This provision and the
practice of international organizations support the view that the Managing Director
of the Global Mechanism did have the authority to decide not to renew the
Complainant’s contract, especially in light of the budgetary restraints with which
he was confronted at the time. Insofar as his decisions complied with the
budgetary limits established by the Conference of the Parties, the Managing
Director must be deemed to be authorized to make decisions in relation to the
staffing needs of the Global Mechanism on a daily basis. 315 Thus, once the
Conference of the Parties approved the budget for the Global Mechanism, including
proposed staffing, the Managing Director, as the chief of the management section
of the Global Mechanism, had the power to decide concrete staffing issues and it
was for him to determine whether the budge t approved by the Conference of the
Parties justified keeping the Complainant’s post. As the chief of the management
section of the Global Mechanism, he had “responsibility for ensuring that the
expenses of the organisation remain within its framework of resource
316
allocation.” In deciding not to renew the Complainant’s fixed-term contract
upon its expiration, the Managing Director was exercising an implied discretionary
power. Nowhere in the Memorandum of Understanding is this power of the
Managing Director tied to the Fund or its President. The terms of the
Memorandum of Understanding do not support any authority for IFAD let alone its
President to examine whether the core bu dget, once approved by the Conference
of the Parties, warranted the abolition of the Complainant’s post. Under Section
III.A.4 of the Memorandum of Understandin g, the role of the IFAD President is
expressly limited to (i) reviewing and approving budget proposals prepared by the
Managing Director, and (ii) forwarding reviewed and approved proposals “to the
Executive Secretary of the Convention for consideration in the preparation of the
budget estimates of the Convention, in accordance with the financial rules of the
Conference.” Concrete decisions concerning the staffing and budget of the Global
Mechanism are not taken by IFAD or its President. Therefore, neither the
President nor the Fund itself can be held responsible for the Managing Director’s
315See H.G. Schermers and N.M. Blokker, International Institutional Law , 4ed. (Boston/Leiden:
Martinus Nijhoff Publishers, 2003), p. 706 (“During the financial year the departments of the
secretariat … may spend within the limits set by the budget.”); P. Sands and P. Klein, Bowett’s Law of
th
International Institutions , 5 ed. (London: Sweet & Maxwell, 2001), p. 574 (post-approval
“[a]dministration of the budget of an international organization is generally placed in the hands of the
executive branch of the organization, headed by its chief executive officer.”).
316P. Sands and P. Klein, Bowett’s Law of International Institutions, 5 thed. (London: Sweet &
Maxwell, 2001), p. 574.
129 decision to abolish a Global Mechanism staff post due to constraints in the Global
Mechanism’s budget.
291. The typical budgetary practice of international organizations has been summarized
as follows: “The secretariat drafts the budget, the general congress (sometimes
the board) establishes it, the secretariat again executes it and the general
317
congress (sometimes the board) supervises its execution.” In the case of the
Global Mechanism, the Managing Director of the Global Mechanism drafts the
“programme of work and budget of the Global Mechanism, including proposed
staffing, … for consideration in the preparation of the budget estimates of the
318
Convention,” the Conference of the Parties “will approve the programme of
319
work and budget of the Global Mechanism” and the Conference of the Parties
supervises its execution through the reporting to the Conference of the Parties by
320
the Managing Director.
292. The Tribunal acknowledged in its Judgment No. 2867 that the decision to abolish
the Complainant’s post, which the complaint alleged “was taken without authority
and was not required by budgetary constraints,” as well as the decision not to
renew her contract “are discretionary decisions that may be reviewed only on
limited grounds.” 321 According to the Tribunal, those “grounds include that the
decision in question was taken without authority or was based on an error of law.”
A leading treatise summarizes the practice of international administrative tribunals
regarding review of discretionary administrative decisions as follows:
“[I]n practice, international administrative tribunals have not hesitated
to rescind administrative decisions taken in virtue of discretionary
powers when the judges were satisfied that the motives put forward
by the administrative organ were not the actual grounds on which the
decision had been taken ( détournement de pouvoir ) ,orweni
appeared that procedural requirements had not been respected by the
administration. Discretionary administrative decisions have been
rescinded for, inter alia, the following reasons:
• they had been taken on a discriminatory basis;
317H.G. Schermers and N.M. Blokker, International Institutional Law, 4ed. (Boston/Leiden: Martinus
Nijhoff Publishers, 2003), p. 691.
318Memorandum of Understanding, Section III.A.4.
319
Ibid., Section III.A.6.
320Ibid., Section III.B (“The Managing Director … will submit a report to each ordinary session of the
Conference on the activities of the Global Mechanism …”).
321ILOAT Judgment No. 2867, Consideration 12.
130 • they entailed a violation of the principle of equity;
• they carried sanctions which were out of proportion with agent’s
misconduct;
• they were taken on grounds which the applicable rules were
forbidding to taken into account;
• there had been a failure to ensure a due disciplinary process.” 322
293. The same source points out that “[w]hat is clear is that the limits on the
administrative tribunals’ power of review lie s in the fact that they are not entitled
to substitute their views of what is administratively convenient or desirable for
323
that of the administrative organ whose decision is challenged.”
294. Another leading treatise states the following with regard to the review by
international administrative tribunals of the exercise of discretionary powers of an
international organization:
“In exercising control over the ex ercise of discretionary power by
administrative authorities, tribunals will not substitute their own
assessment or judgments for those of administrative authorities.
( … )
The control is not as extensive as in the case of a purely obligatory
power or a quasi-judicial power. It may broadly be defined in
terms of the prevention of ‘arbitrary’ conduct on the part of
administrative authorities. It is sufficiently substantial to protect
the interests of staff members while not impeding the execution of
the administrative or management function by international
organizations.” 324
295. In general, international tribunals reviewing discretionary acts of international
organizations do not substitute their own judgment for that of the entity under
review but rather look for “an egregious error that calls into question the good
325
faith” of the body reviewed. Thus, the Asian Development Bank Administrative
322P. Sands and P. Klein, Bowett’s Law of International Institutions , 5 thed. (London: Sweet &
Maxwell, 2001), p. 423.
323Ibid., p. 424.
324 nd
C.F. Amerasinghe, Principles of the Institutional Law of International Organizations , 2 ed.
(Cambridge University Press, 2005), pp. 301-302.
325
World Trade Organization Appellate Body, EC Measures Concerning Meat and Meat Products
(Hormones), AB-1997-4, AB Report of 16 January 1998, para. 101.
131 Tribunal observed as follows in a 1992 ruling: “However, the fact that the Tribunal
may review the exercise of a discretion by the Bank does not mean that the
Tribunal can substitute its discretion for that of the management. The Tribunal
cannot say that the substance of a policy decision is sound or unsound. It can only
say that the decision has or has not been reached by the proper processes, or that
the decision either is or is not arbitrary, discriminatory or improperly motivated, or
that it is one that could or could not reasonably have been taken on the basis of
facts accurately gathered and properly weighed.” 326 In the same sense, the World
Bank Administrative Tribunal (WBAT) has held that: "[t]he Respondent's [Bank's]
appraisal is final unless, as a result of a review of the exercise of the Bank's
discretion, the Tribunal finds that there has been an abuse by the Bank in that its
actions have been arbitrary, discriminatory or improperly motivated, or have been
carried out in violation of a fair and reasonable procedure.” 327
296. Finally, and most important, according to the Tribunal’s own case law,
international organizations may undertake restructuring by reducing or reassigning
their staff, even for the sole purpose of making budgetary savings. This view was
expressed, for example, in the Tribunal ’s Judgment No. 2156 (Consideration 8)
and, significantly, in its Judgment No. 2907 (Consideration 13), which was
rendered on the same date as Judgment No. 2867, the ruling which is challenged
in the present proceeding.
297. In the present context, it is useful to recall the words of the President of the Court
in the Unesco Case:
“In the absence of evidence that the Director-General had acted in
bad faith, i.e. that his action was arbitrary or capricious, it was not
for the Tribunal to say that the reasons assigned by him were not
justified. It was not for the Tribunal to substitute its judgment in
this administrative field for that of the Director-General. He, acting
under the authority of the Executive Board and of the General
Conference, and not the Tribunal, was charged with responsibility.
There was no obligation to renew the appointments. He could have
allowed the contracts to lapse without assigning reasons or he could
326Decision No. 1 of the Asian Development Ba nk Administrative Tribunal (18 December 1992), Carl
Gene Lindsey v. Asian Development Bank , para. 12, text available online:
http://www.adb.org/Documents/Reports/ADBT/ADBT0001.asp
327
See, Suntharalingam, WBAT Reports 1982, Decision No. 6, para. 27; Mr. X, WBAT Reports 1984,
Decision No. 16, para. 39.
132 have told these officials that their terms of employment would not
328
be renewed without stating reasons.”
298. It is obvious that neither the action of the Managing Director of the Global
Mechanism, nor that of the IFAD President in relation to the Complainant, can be
said to be “arbitrary” or “capricious” or otherwise falling under the aforementioned
grounds for rescinding discretionary decisions. The Tribunal’s ruling demonstrates
that it essentially substituted its view for what the Managing Director of the Global
Mechanism viewed was administratively desirable for the Global Mechanism, a
view which the Fund’s President declined to upset in his memorandum of 4 April
2008, which was issued in his special capacity under the Memorandum of
Understanding between the Fund and the Conference of the Parties.
B. Conclusion
299. For the reasons set out above, the Fund submits that Question VIII should be
answered in the affirmative.
Chapter 12. QUESTION IX
A. The Tribunal’s Judgment No. 2867 is invalid
300. Through Question IX, the Fund’s Executive Board expressly asks the Court to
determine the validity of ILOAT Judgment No. 2867:
“IX. What is the validity of the decision given by the ILOAT in its
Judgment No. 2867?”
301. This question is prompted by the fact that it is a general principle of international
329
law that lack or excess of competence are causes of nullity of a final judgment.
Under Article VI of the Tribunal’s Statute, its judgments “shall be final and without
appeal.” This means that, unless the validity of the Tribunal’s Judgment No. 2867
is formally denied by the Court, the Fund will be bound by it. Article XII authorizes
the Executive Board to challenge those judgments, on the ground of lack of
jurisdiction or of fundamental fault in the procedure followed. In case of such a
challenge, it is for the Court to pass, by means of an Opinion having binding force,
upon the challenge thus raised and, consequently, upon the validity of the
judgment challenged. The Tribunal’s Judgment No. 2867 is being challenged both
328Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, Dissenting Opinion of President Hackworth, I.C.J. Reports 1956, p. 77, at 121.
329
B. Cheng, General Principles of Law As Applied by International Courts and Tribun(Cambridge,
Grotius Publications, reprint 1987), p. 357. See also Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against Unesco , Advisory Opinion, Dissenting Opinion of President
Hackworth, I.C.J. Reports 1956, p. 77, at 122.
133 in respect of the competence of the Tribunal which rendered them as well as in
respect of fundamental faults in the procedure followed by the Tribunal in reaching
its decision. It is recalled that in the Unesco Case, the Court observed that “any
mistakes which [the Tribunal] may make with regard to its jurisdiction are capable
of being corrected by the Court on a Request for an Advisory Opinion emanating
from the Executive Board” and that if it had upheld the challenge in that case, it
would have had to declare the Tribunal’s judgments invalid. Therefore, in the
present case, the Court, in the event that it agrees with the Fund’s contentions
relating to lack of jurisdiction and fundamental fault in the procedure followed by
330
the Tribunal, must declare the Tribunal’s Judgment No. 2867 invalid.
B. Conclusion
302. For the reasons set out above, the Fund submits that Question IX must be
answered in such a way as to render Judgment No. 2867 invalid.
330
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 100.
134 Part Three
SUMMARY OF CONCLUSIONS AND REQUEST
135 Chapter 13. SUMMARY OF CONCLUSIONS AND REQUEST
303. Rather than involving a simple appeal from a ruling in an employment case such
as the Court has had occasion to address in the past, the present proceeding
raises issues of fundamental importance for the effective work and potential
liability not only of the International Fund for Agricultural Development, but also of
a significant number of international organizations serving as housing
organizations to other institutions, and indeed all organizations having accepted
the jurisdiction of the Administrative Tribunal of the International Labour
Organization. As such, the outcome of this proceeding likely will determine the
future of institutional housing arrangements the world over.
304. This statement has in the first instance endeavoured to establish that the
Executive Board of the Fund was fully authorized to address its questions to the
Court, as those queries are purely legal ones and arose within the scope of the
Fund’s activities, concerning as they do the Fund’s measures to be taken as a
result of Judgment No. 2867. It also appears from this statement that there are no
compelling reasons preventing the Court from giving the requested Opinion, given
that (i) the Court has sufficient information to give its Opinion; (ii) the requested
Opinion will assist the Fund and the Tribunal in their subsequent actions; (iii)
upholding the Fund’s challenge will not deprive the Complainant of her right of
redress; (iv) providing the requested Opinion will not violate the principle of the
equality of parties; and (v) the Fund’s Request raises issues never before
presented to or addressed by the Court.
305. With regard to the substance of the Fund’s questions, this statement has sought to
demonstrate that the Tribunal lacked jurisdiction ratione personae and ratione
materiae to entertain the complaint introduced against the Fund by the
Complainant and that the Tribunal’s decision to entertain and dispose of the
complaint in its entirety constituted a fundamental fault in the procedure followed.
306. The Tribunal lacked jurisdiction in the case introduced by the Complainant because
(i) the Complainant was not an official of the Fund at the relevant time; (ii) the
Global Mechanism and the Conference of the Parties of the UNCCD, which must be
regarded as indispensable third parties for the purposes of the complaint as filed
and argued by the Complainant, have no t recognized the jurisdiction of the
Tribunal; (iii) the Global Mechanism and the Conference of the Parties have not
been included in IFAD’s recognition of the Tribunal’s jurisdiction; and (iv) the
conduct complained of is not attributable to the Fund.
307. By acknowledging that “[t]he argument with respect to the Tribunal’s jurisdiction
is based, in the main, on the proposition that ‘[t]he Fund and the Global
136 Mechanism are separate legal identities’,” 331the Tribunal explicitly phrased the
key issue of the separateness between the Fund and the Global Mechanism, on
which the parties were in express agreement, as a jurisdictional issue, thereby
bringing its findings on that issue, and any findings resulting from the consequent
incompetence of the Tribunal, within the sco pe of Article XII of the Statute of the
Tribunal.
308. The Tribunal also lacked jurisdiction ratione materiae in the Complainant’s case
because the complaint submitted to the Tribunal did not fall within the framework
of Article II, paragraph 5, of the ILOAT Statute, in that it made no allegation of
“non-observance, in substance or in form, of the terms of appointment of officials
and of provisions of the Staff Regulations” of IFAD, but instead relied on provisions
of the Memorandum of Understanding between the Conference of the Parties and
the Fund, an international agreement that confers no legal rights on the
Complainant, to argue, first, that the Managing Director of the Global Mechanism
exceeded his authority in deciding not to renew the Complainant’s fixed-term
contract and, second, that the “core budge t” approved by the Conference of the
Parties did not require the abolition of the Complainant’s post in the Global
Mechanism.
309. The Tribunal expressly acknowledged that the Fund’s “submissions relating to the
powers and jurisdiction of the Tribunal” could be summarized as follows: “The first
is that the Tribunal may not entertain flaws in the decision-making process of the
Global Mechanism; the second is that the Tribunal may not entertain flaws in the
decision-making process of Fund if it entails examining the decision-making
process of the Global Mechanism and the third is that acts of the Managing
Director are not attributable to the Fund.” 332 In other words, the Tribunal explicitly
phrased these issues as jurisdictional issues, thereby bringing its findings on those
issues, and any findings resulting from the consequent incompetence of the
Tribunal, within the scope of Article XII of the Statute of the Tribunal.
310. Instead of referring to the grounds set forth in Article II, paragraph 5, of its
Statute, the Tribunal adjudicated the Complainant’s claims with reference to
various provisions of the Memorandum of Understanding between the Conference
of the Parties and the Fund as well as Conference of the Parties’ decisions.
311. In sum, the complaint, as submitted to the Tribunal by the Complainant, was not
“one the merits of which fell to be dete rmined by the Administrative Tribunal in
accordance with the provisions governing its jurisdiction,” as the Court has
331
ILOAT Judgment No. 2867, Consideration 5.
332ILOAT Judgment No. 2867, Consideration 8.
137 333
formulated the key question to be answered in a proceeding of this kind. The
Tribunal in this case was not “legally qualified to examine the complaints
334
submitted to it and to adjudicate on the merits of the claims set out therein.”
312. For all of the foregoing reasons, it is submitted that Judgment No. 2867, being
outside the jurisdiction conferred upon the ILO Administrative Tribunal by its
Statute and IFAD’s declaration accepting its competence, and/or having been
adopted through various fundamental faults in the procedure followed by the
Tribunal, must be declared invalid by the Court.
313. Accordingly, the Fund respectfully requests the Court to find that Question I must
be answered in the negative, that Questi ons II through VIII must be answered in
the affirmative, and that Question IX must be answered in such a way as to render
Judgment No. 2867 invalid.
October 2010
____________________________
Rutsel Silvestre J. Martha
General Counsel, Representative of
the International Fund for Agricultural Development
333
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco ,
Advisory Opinion, I.C.J. Reports 1956, p. 77, at 87.
334
Ibid.
138
Written Statement of the International Fund for Agricultural Development