Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco - Advisory Opinion

'I
'I I.C,J. Communique NO. 56/17
(Unofficial)

The follawing jrsformation from the Registry of the International
Court of Justiceis commicated to the Press:

Today, October 23rd, 1956, the International '~ourt of Justice
delivered its Advisory Opinion Ln the matter of the Judgments of the
AdminXstrstiv Tribunalof the International Labour Organisation (I.L,o.)
upon com,nlsink.plmds agalnst the Unj_ted Nations Educational ,cienkific
and Cultural Organizatio nUn%sco),

By a Resalution adopted on November 25th, 1955, the becutive Board
of Unesco decided to submit the following legal questions to the

International Court of Justice for an AdvisoryOpinion:

TqI,- Wa.s the Administrztive Tribunal ,cornpeent, under
A~ticle II of its StatuLe, to hear the cornplaints jntroduced
smst Unesco on 5 Febr,uary 1955 by Messr 5. Dubergand Lef f
and Mrs, Wilcox, andon 28 June 1955 by i@s, Bernstein?

II. - In the case of an affirmative answer to question 1:

(a) Idas the Administrative Tribunal competent ho detemine
whether the powerof the Director-General not to rmew
fixed-terni appojntments has been exercised for the good
of the service and in the interest of the Organization?
,

(b) Was the kdministrai tve Trfbunal cornpet entto pronounce
on the attitude which the Director-General, under the
terms of the Constitution of Unesco, ought to maintah
in his relations yith a Member State, particuiarly as
regards the executio nf the palicy of the Governunent
authorities of that Member State?

111. - 31 any case, what Ls the validity of the decisions gfven
by the Administrative Tribunal in its Judgments Nos, 17, 18,
19 and 21?j1

Upon the receiptof a Request for an Opinion the Courtgave those
States Membersof Unesco which were entitled to appear before the Court,
e
as, well as the I.L,O. and international organizations which had
recognjzed the jurisdictio of the Administrativ Tribunal of the I.L.O.,
an opportunity to present their views. Several States availed themselves
of tkis opportunity. Unesco did likewlsc:to its witten statements,
the Organizatioa nppended the observationw shich had been fomrmlated by
counsel acting on behalf of the officials concerned. Adequate
Information having thus been made available to it, the Court did not
hold oral hearings.

The Court having decided by 9 votes to 4 to comply with the
Request for an Opinion, gave an affirmative answer to Question I by
10 vates to 3. By 9 votes to 4, the Courtwas of ophion that Question
II did not cal1 for an answer by the Court and, wit h regardto Question
III, by 10 votesto 3, khat the validrty of the Judgmcnts w2s no lonzer
open ko challenge.

Judge Kojemikov, whilst voting in favour of the decision of the
Court ho comply with the Requestfor an Opinion, and of the final part
of the Opinionitself withregard to Questions 1 and 111 declaredthat
he!wasunable to concur In the view of the Courton Chestion 11.

Tbree .,. Three Judges, Mrssrs.Winiarski and Klaestcad and Sir MuhammadZafrulla
Khan, appended to the Opinion of the Court staternents of their separate
Opinions. President Hackworth, Vice-Presiden Btedawi and Judges Read
and Cordovaappendcd to the Opinionof the Court staternents of Lheir

dissenting Opinions.

In Lts Opinion, the Court noted that the facts were essentlally the
same in dl four cases and referredsolely to the case of >Ir,Peter Duberg
(Judgment No,17). He had held a fixed-temn appointment with Unesco
which was due to expire on Deeember 31st, 1954. In 1953 and 1954 .he
had refused to answer two Questionnaires of the Goverrunent of the United
States designed to mzke avairable to the Director-Gener al Unesco
certain information concerning Unit ed States citizens employed by that

Organization. Havingreceivedan hvitationtoappear before the *
ïnLernational Organizatian31 Employe seLayalty Board of the .United States
Civil Service Commissio he refused to do so and on July lJth, 1954 so
uiformed the Director-CRneral of Unesco. On August 13th, the Director-
General inforrr~ed Dubarg that since he was unable to accept his conduct
as being consistent With the high standards of htegrity which were
requiredof those employedby the Orgcmization, he would not offer him
a new appointment on the expixy of his contract, Previously, in a
Memorandum is sued on July 6th, 1954, the Director-General had amounced
his decision that all holders of fixed-term contracts &iring at the
end of 1954 or at the beginning of 1955, who had achioved the required

standards of efficiency, comgetence ad iintegrity would be offered
renewals of their appintrnents. Despite the opinion to the contrary
givenby the UQCSCO :i';ppab Mard .t;ophich Duberg hs.d nppïied the decision
not to renew hi3 contract waa mintairicd. On February 5th, 1955, .
Duberg brought his colaplaint before the Administrative Tribunalof
the I.L.0, which, in its Judgnent of hpril 26th, 1955, declared itself
competmt and adjudicated on the rneritç. These were the cfrcumstances
in whichthe mecutive Soard of Unesco, challenging the jurisdiction of
the Tribunal in that case and consequently ths validity of the Judgment,
requested an opinion fram the Court In reliance upon the psovisions of
drtlcle XII of the Statute of the Tribunal.

The Courtconsidered at the outset >hether it should comply with
the Request, It noted in the Eirst phce that under~rticle XII the
Opinion would bs bindsng, an eff ect which went begond the scope
attributed by the Clnrter of the United Ns-tions 2nd by the Statute of
the Court to an Adv5sory Opinion. However, the provision iliqucstlon,
which was nothiilg but a rule of conduçt for the Zxecutive Board, in

na kJj_seaffected the %m;r in vihich the Court fmc'cioned.

Furthemore, the advisory procedure thus brought into being
appeared as servhg, in a way, the object of an appeal against the
Judgtenks of the Tribunal. The advisory proceeding s ilichthus toolr
the place of contentioüs proceedings were designcd to provjde that
1 certain challenges relating to the validity of Judpents rendered by the
Tribunal in proceedings betwe en an of Yicial and the Interfiatioml organiza-
tlon concerned shauld be brought hefore the Caurt whereas wder the Statute
of the Court only States my be prties in cases before it, The Court
r~as nst called upn to consider the rnerits of such a solubion; it
must consider oniy the ciuestion rdlethar iLt.; Stetute and. its judicial

chaTacter did or did hot stand in the rvay of Lts pr-ticipating therein.
l However, contrary to accept ed practice, the advisaryproceedings which

had .... h2d been instituted in th? present case involved a certain absence of
equality between Unesco and the officias concerned. In the first
place, under the provisi.ons of the Statute of the AdministrativT eribunal
only the Executive Board of Un~sco was mtitled to instituts these

proceedings , Butt his inequality was ant ecedent to the examiniition
of the questianby the Court and di6 not sffect the mnner in which the
Court undertook that examination. In the secondplace, in connection
with the rctual procedure Sefore the Court, zlthough the Statute and
the Rules of Court made available to Unesco the necessaryfacilities
for the presentatio n f Its views, in the case of the officials, the
positionrms different. Sutthiç difficultywasmet onthe one hand
Secause the cibserva.tions of the ofiicials were made available to the
CTJ.?~ thrn?xz5 the intermediary of Unesco and on the other because the

oral procoedinga had been dispznsed with. Tn view af this there
would appear to have been no compalling reason why the Court should
refuse to comply with the Bcqileçt for an Opinion.

The Court then dealt with the first questian put to it. It
noted that aecording to the rmrds of the provisionof the Statut e oi the
rldministrative Tribunal, it 1.25 necassary, in order to establish the
jurisdiction of the Triounal to hear a cornplaint by en official, that
he should allege nort-observ-ince of the terrns of appointment or of the
provisions of the Staff Regulations . It was, theref cire necessary that

the cornplaint shoüld appesr ta Ravea substantia ld not rnerely an
artificid comection ~Cth the tema and the provisions kked although
it was not requircd that tho facts alleged should necessarily lead to
the results alleged by the con~~laisiants, for the lstter constituted
the substance of the fssucbefore the Tribunal,

In the cases in question, the officials had put forwzrd an inter-
pretation of their contracts and of the Staff Regulations ta the
effect that they had a right to the renevml of thztr contracts. Was
this assertion sufficiertly ~lrell-founded to establish the cornpetence of

the Tribunal? To answw that quastton, ft was necessfiry to cansider
the contracts not only by ref erence to their letter but also in relation
to the actual canditions in which they were entered into and the place
which thsy occupied in the Organization. In the practiceof the
United Nations and of the Speciallzed Igencics, holders of fixed-term
contracta,rlthough not assimilated to holders of permnent or indeter-
minate contracts, hsd often been trezted xs entitled to b~ considered
for continued employmen t consist ently with the requb irementu and the
genaral gaad of the Organization. This practice shouïd sewe as a

warning against an interpret:ition of ffxed-termcontracts tfhich, by
considerin gxclusively the literal neaning of their provisionrelating
to duration would mean that on the expjry of the flxed perioda fixed-
terincontract could no£ be relied upon for the purpose of impugning z
refusal to rensw. Such an interpretation moreover, would fail to
take into account the nature of ~en~~y~l of sucha contract,
wbkhhdeed canstituted a continuing period of the former contract, with
the rvsult th3t khere ws s legal relation.çhix~ bvtween the renewal and
the original appointrnsnt . This relationshi phich const ituted the
legal basis of the colnplrints of the officials showed itself once more
in the Director-Genzralk AdministrativM eernorandun of July 6th, 1954,
cited &ove. Tlis Coxrt coiisidered that it could b: reasomblymain-

tabed that an ;zdniinistrative notice frained.in such general terrns rnighk
be regarded as binding on the Organization. If the Director-Generd
.thought fit to refuse an official the beneflt of the general offer thus
extended, my dispute which night nrise with regard to the mntter f el1
witbin the jurisdict ion of tha Administrative Tribunal. Furthemore, the Couzrt notecl that before the Trth'mal bath tlie
complainznts and Unesco had placed tliemselves on the ground of the

'provisions of the Staff Xegdntions, within ifhose tei-ms the
Adninistrative 14emorandum of Juljr 6th also feu. In the view of the
Court the ï4emorandwn coristitut~d a nzodificationof the Staff Bules
whichthe Direcior-Genera ras autl~orised to make under the Staff
Regulations. It also referred, expressbï or by implication to the
text of the Staff Begulakions and in particular tc the notion of
integrlty aro-md whicn centred the controversg- sirbmttted to the
lidminis trative TrY~mc?l. Aeçordingly, rhether looked zt f rom the
point of viet.r ofnon-observanco ef the terms of appointnent or of

that of non-observanco ef Staff Regdations the complait~an-ts had a
legitimate ground for cornplaint and the Tri'uunal r.ras justiiied in
confirming its jurksdiction.

For these reasons the Court gzve an affirr-~ative aslswer to Question 1,
kiith regard to Question IL the Court pointed out that a Requestfor an
Opanion eqressly preserited within the orbit of Article XII of the
statute of the Administrative 'Tribunal ought to be 11inited to a challenge

of a decisionof tlie Tribunal confinrihg its jurisisdlction or to
cases of fundamental fault of procedure, Since Question 11 referred to
neither of these two grounds os" challenge the Court is i1ot in the position
to answer Question 11,

The Court, -avina thus re jected the cail'centlonrelating to ,the
juriçdi dion of the Hdmiizistrative TriSmal, .bileonly contention
raised by the Exectiiive Eoard of Unesco, answeredGluestion III by
recognizin that the validity of thc four Juctprnts was no longeropen

to challenge,

The K?gv.e, October 23rd, 1956.