INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Press Release
Unofficial
No. 2010/14
11 May 2010
The International Fund for Agricultural Development requests an advisory opinion
from the Court on a judgment rendered by the Administrative
Tribunal of the International Labour Organization
THE HAGUE, 10 May 2010. On 26 April 2010, the International Court of Justice received a
request for an advisory opinion from the International Fund for Agricultural Development (IFAD),
concerning a judgment rendered by an administrati ve court, the Administrative Tribunal of the
International Labour Organization (hereinafter “the Tribunal”).
IFAD is one of the specialized agencies of the United Nations which have been authorized
by the General Assembly, on the basis of Article 96, paragraph2, of the Charter of the United
Nations, to request advisory opinions of the Courton legal questions arising within the scope of
their activities.
MsS-G., a staff member of the Global Mechanism of the United Nations Convention to
Combat Desertification in Those Countries Experi encing Serious Drought and/or Desertification,
Particularly in Africa (hereinafter “the Global Mechanism”), held a fixed-term contract of
employment which was due to expire on 15 March 2006.
When her contract was not renewed, Ms S-G. made approaches to various organs of IFAD,
which houses the Global Mechanism. In particular, she filed an appeal with the Joint Appeals
Board, which recommended in December2007 that MsS-G. be reinstated within the Global
Mechanism for a period of two years and paid an am ount equivalent to all the salaries, allowances
and entitlements she had lost since March2006. Th e President of IFAD rejected this decision in
April 2008.
In view of the failure of this approach, MsS-G. filed a complaint against IFAD with the
Tribunal on 8 July 2008. In her complaint, Ms S- G. asked the Tribunal to order IFAD to reinstate
her, for a minimum of two years, in her previous po st or an equivalent post with 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 contract.
In its judgment No. 2867 ( S-G. v. IFAD), delivered on 3 February 2010, the Tribunal found
that it had jurisdiction under the terms of Article II of its Statute and set aside the decision of the
President of IFAD. It ordered IFAD 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
16March2006, together with moral damages in the sum of €10,000 and costs in the amount
of €5,000. - 2 -
The Executive Board of IFAD, by a resolution adopted at its ninety-ninth session on
22April2010, acting within the framework of ArticleXII of the Annex of the Statute of the
Tribunal, decided to challenge the above-menti oned judgment of the Tribunal and to refer the
question of the validity of judgment No. 2867 to the International Court of Justice for an advisory
opinion.
That Article XII 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.
2. The opinion given by the Court shall be binding.”
The request for an advisory opinion was transmitted to the Court by a letter from the
President of the Executive Board of IFAD dated 23April2010 and received in the Registry on
26 April.
It contains the following questions:
“I. Was the ILOAT competent, under ArticleII of its Statute, to hear the
complaint introduced against the International Fund for Agricultural Development
(hereby the Fund) on 8July2008 by MsA.T.S.G., an individual who was a member
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 the Complain ant 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, deci sions 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 statement, made in support of its decision
confirming its jurisdiction, that ‘the pe rsonnel of the Global Mechanism are staff
members of the Fund’ outside its jurisdic tion 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 a nd/or did it constitute a fundamental fault
in the procedure followed by the ILOAT?
V. Was the ILOAT’s decision confirmi ng its jurisdiction to entertain the
Complainant’s plea that the Managing Director’s decision not to renew the - 3 -
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 C onference 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 (hereby 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 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?”
Procedure followed
By letters dated 26April2010, the Registrar gave notice of the request for an advisory
opinion to all States entitled to appear before the C ourt, pursuant to Article 66, paragraph 1, of the
Statute.
By an Order of 29 April 2010, the Court:
⎯ decided that the International Fund for Agri cultural Development and its Member States
entitled to appear before the Court, the States parties to the United Nations Convention to
Combat Desertification entitled to appear befo re 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 La bour Organization pursuant to ArticleII,
paragraph5, of the Statute of the Tribunal ar e considered likely to be able to furnish
information on the questions submitted to the Court for an advisory opinion;
⎯ fixed 29October2010 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;
⎯ 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;
⎯ decided that the President of the Interna tional Fund for Agricultural Development shall
transmit to the Court any statement setting fo rth 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 29October2010 as the time-limit with in which any possible statement by the
complainant who is the subject of the judgment may be presented to the Court and
31January2011 as the time-limit within whic h any possible comments by the complainant
may be presented to the Court. - 4 -
The subsequent procedure was reserved for further decision.
Information on advisory proceedings
The advisory procedure is open to five Unite d Nations organs and 16 agencies of the United
Nations system. It enables them to request opinions from the Court on legal questions.
On receiving a request for an advisory opinion, the Court itself draws up a list of those States
and organizations that may be able to furnish re levant information. It then organizes the written
and/or oral proceedings pursuant to Articles66 of its Statute and 105 of its Rules. The Court’s
advisory opinions are read in public sitting. Sin ce 1946, the Court has given 24 advisory opinions
on a wide range of legal questions.
The request for an advisory opinion received in the Registry on 26April2010 falls within
the framework of a rarely used procedure, that of the review of judgments of administrative
tribunals, which has given rise to the delivery of only four advisory opinions since 1946. In 1955,
the Executive Board of UNESCO, acting within the fra mework of Article XII of the Statute of the
Administrative Tribunal of the ILO, decided to challenge two decisions rendered by the Tribunal
and to refer the question of their validity to the Court for an advisory opinion. In 1972, 1981 and
1984, the Committee on Applications for Review of [United Nations] Administrative Tribunal
Judgements, acting within the framework of Article 11 of the Statute of that Tribunal, decided that
there was a substantial basis within the meaning of that Article for the applications for review of
Judgements Nos. 158, 273 and 333. It therefore requested the Court to give an advisory opinion on
the matter in respect of each of those applications.
___________
The full text of the request for an advisory op inion and that of the Order of the Court will be
available shortly on the Court’s website: www.icj-cij.org.
___________
Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)
Ms Barbara Dalsbaek, Administrative Assistant (+31 (0)70 302 2396)
The International Fund for Agricultural Development requests an advisory opinion from the Court on a judgment rendered by the Administrative Tribunal of the International Labour Organization