INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
Press Release
Unofficial
No. 2012/6
1 February 2012
The Court finds that the decision given by the Administrative Tribunal of the
International Labour Organization in its Judgment No. 2867 is valid
THE HAGUE, 1 February 2012. The Interna tional Court of Justice (ICJ), the principal
judicial organ of the United Nations, today delivered its Advisory Opinion concerning Judgment
No. 2867 of the Administrative Tribunal of the International Labour Organization upon a complaint
filed against the International Fund for Agricultural Development.
In its Advisory Opinion, the Court:
(1) Finds unanimously that it has jurisdiction to give the advisory opinion requested;
(2) Decides unanimously to comply with the request for an advisory opinion;
(3) With regard to the questions put for an advisory opinion by the Executive Board of the
International Fund for Agricultural Development, is of the opinion:
(a) Unanimously, with regard to Question I, that the Administrative Tribunal of the International
Labour Organization was competent, under Article II of its Statute, to hear the complaint
introduced against the International Fund for Agricultural Development on 8July2008 by
Ms Ana Teresa Saez García;
(b) Unanimously, with regard to Questions II to VIII, that these questions do not requirfurther
answers from the Court;
(c) Unanimously, with regard to Question IX, that the decision given by the Administrative
Tribunal of the International Labour Organization in its Judgment No. 2867 is valid.
I. Factual background
The request for an advisory opinion concerns the validity of the Judgment rendered by the
Administrative Tribunal of the International Labour Organization (hereinafter the “Tribunal”) on
3February 2010, relating to Ms SaezGarcía’s contract of employment. In March 2000,
MsSaezGarcía was offered, and accepted, a two-y ear fixed-term contract with the International
Fund for Agricultural Development (IFAD) to serve as a Programme Officer in the Global
Mechanism, an entity hosted by IFAD. The Global Mechanism ⎯ established by the United
Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought
and/or Desertification, particularly in Africa ⎯ works to mobilize and channel financial resources - 2 -
to developing countries. MsSaezGarcía’s contract was twice extended by IFAD. By a
memorandum of 15December2005, the Managing Director of the Global Mechanism informed
her that, due to a reduction in the budget of th e Global Mechanism, her post would be abolished
and her contract would not be renewed. MsSaezGarcía requ ested a facilitation process, which
ended with no settlement, and she then challenged the decision before the Joint Appeal’s Board of
the Fund, which unanimously recommended that she be reinstated and awarded a payment of lost
salaries, allowances and entitlements. On 4Ap ril2008 the President of the Fund rejected the
recommendations. On 8 July 2008, Ms Saez García f iled a complaint with the Tribunal, and, in its
Judgment of 3 February 2010, the Tribunal decided that “[t]he President’s decision of 4 April 2008
is set aside” and made orders for the payment of damages and costs. In a resolution of
22April2010 (attached as Annex 1), the Executive Board of the Fund requested an advisory
opinion of the Court on the validity of that judgment.
II. The Existence and Scope of the Court’s Jurisdiction
After recalling the terms of Article XII of the Annex to the Statute of the Tribunal, the Court
observes that the power of the Executive Board to request an adviso ry opinion and the jurisdiction
of the Court to give such an opinion are founded on the Charter of the United Nations and the
Statute of the Court, and not on ArticleXII of the Annex to the Statute of the Tribunal alone. In
addition to the latter provision, the Court exam ines Article 96 of the United Nations Charter,
Article 65, paragraph 1, of its Statute and Article XIII, paragraph 2, of the Relationship Agreement
between the United Nations and the Fund, concludi ng that the Fund has the power to request an
advisory opinion on the validity of the decision given by the Tribunal in its Judgment No. 2867 and
that the Court has jurisdiction to consider the request. These provisions are included in Annex 2 to
this press release. The Court recalls that its power to review a judgment of the Tribunal is limited
to two grounds: that the Tribunal wrongly confirmed its jurisdiction or the decision is vitiated by a
fundamental fault in the procedure followed.
III. The Court’s Discretion
With regard to its discretion under Article 65 of its Statute as to whether to reply to a request
for an advisory opinion, the Court recalls that “compelling reasons” would be required to justify a
refusal. Indeed, it has always considered that to give the advisory opinion requested represents its
participation in the activities of the Organization and, in principle, a request should not be refused.
The Court then examines the principle of equality before it of IFAD on the one hand and the
official on the other, including inequality of access to the Court and inequalities in the proceedings
before the Court. With regard to the former , the Court observes that it is only the employing
agencies which have access to the Court; the staff member concerned does not. The Court
considers that questions may now properly be ask ed whether such a system, established in 1946,
meets the present-day principle of equality of access to courts and tribunals. With regard to the
latter, the Court finds that although the process of ensuring equality in the proceedings was not
without its difficulties, the Court ultimately did have the information it required to decide on the
questions submitted; that both the Fund and MsSaezGarcía have had adequate and, in large
measure, equal opportunities to present their case and to answer that made by the other; and that,
in essence, the principle of equalit y in the proceedings before the Court has been met. Thus, the
Court considers that the reasons that could lead it t o decline to give an advisory opinion are not
sufficiently compelling to require it to do so.
IV. Merits
Before turning to the questions put to it for an advisory opinion, the Court observes that, in
light of the different instruments setting up the Fund, the Conference of the Parties of the - 3 -
Convention on Desertification (hereinafter the “COP”), the Global Mechanism and the Permanent
Secretariat, and of the practice included in the record before the Court, the Global Mechanism had
no power and has not purported to exercise any po wer to enter into contracts, agreements or
“arrangements”, internationally or nationally.
A. Response to Question I
In Question I, the Court is requested to give its opinion on the competence of the Tribunal to
hear the complaint brought against the Fund by Ms Saez García. Under Article II, paragraph 5, of
its Statute, the Tribunal could hear the complaint only if the complainant was an official of an
organization that has recognized the jurisdiction of the Tribunal, and if the complaint related to the
non-observance of the terms of appointment of such an official or the provisions of the staff
regulations of the organization. The Court examines the first set of conditions with reference to the
competence ratione personae of the Tribunal and the second set of conditions under the heading of
the competence ratione materiae of the Tribunal.
With respect to the Tribunal’s competence ratione personae, since recourse to the Tribunal is
open to staff members of the Fund, the Court first considers whether MsSaezGarcía was an
official of the Fund, or of some other entity that did not recognize the jurisdiction of the Tribunal.
On the basis of an examination of her offer of employment and the renewa ls of her contract, the
Court concludes that an employment relationshi p was established between Ms Saez García and the
Fund, and that this relationship qualified her as a staff member of the Fund. The Court considers
that this is further evidenced by the facts surroundi ng her appeal against the decision to abolish her
post, an appeal that was at no point contested by IFAD, and the consequent non-renewal of her
fixed-term appointment. The Court thus concludes that the Tribunal was competent
ratione personae to consider the complaint brought by Ms Saez García against the Fund.
With respect to the Tribunal’s competence ratione materiae , the Court concludes that
Ms Saez García’s complaint to the Tribunal falls within the scope of allegations of non-observance
of her terms of appointment and of the provisions of the staff regulations and rules of the Fund, as
prescribed by ArticleII, paragraph5, of the Statut e of the Tribunal. With regard to the Fund’s
contention that the Tribunal lacked jurisdiction to examine matters outside the scope of Article II,
paragraph5, of its Statute, such as the legal arrangements governing the relationship between the
Global Mechanism and the Fund, the Court is of the opinion that the Tribunal could not avoid
examining such matters, as well as the status a nd accountability of the Managing Director of the
Global Mechanism. Consequently, the Court is of the view that the Tribunal was competent
ratione materiae to consider the complaint brought before it by MsSaezGarcía in respect of the
non-renewal of her contract by the Fund.
B. Response to Questions II to VIII
The Court states that its answer to the first qu estion put to it by the Fund covers also all the
issues on jurisdiction raised by the Fund in QuestionsII to VIII. To the extent that QuestionsII
toVIII seek the opinion of the Court on the reasoning underlying the conclusions reached by the
Tribunal, the Court reiterates that, under the terms of Article XII of the Annex to the Statute of the
Tribunal, a request for an advisory opinion is lim ited to a challenge of the decision of the Tribunal
confirming its jurisdiction or to cases of fundamental fault of procedure. Questions II to VIII do
not identify any fundamental fault in procedure which may have been committed by the Tribunal in
its consideration of the complaint against the Fund. - 4 -
C. Response to Question IX
In response to Question IX put by the Executive Board of the Fund, concerning the validity
of the Tribunal’s decision in its judgment No.2867, the Court, having decided that the Tribunal
was entirely justified in confirming its jurisdiction, and not having found any fundamental fault in
procedure committed by the Tribunal, finds that th e decision given by the Tribunal in its Judgment
No. 2867 is valid.
Composition of the Court
The Court was composed as follows: President Owada; Vice-President Tomka;
JudgesKoroma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade,
Yusuf, Greenwood, Xue, Donoghue; Registrar Couvreur.
Judge Cançado Trindade appends a separate opinion to the Advisory Opinion of the Court;
Judge Greenwood appends a declaration to the Advisory Opinion of the Court.
*
A summary of the Advisory Opinion appears in the document “Summary No. 2012/1”. In
addition, this press release, the summary and the full text of the Advisory Opinion can be found on
the Court’s website (www.icj-cij.org) under “Cases”.
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Note: The Court’s press releases do not constitute official documents.
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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Char ter in June1945 and began its activities in
April1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are without appeal for the parties concerned); and,
second, to give advisory opinions on legal questi ons referred to it by duly authorized United
Nations organs and agencies of the system. The Court is composed of 15judges elected for a
nine-year term by the General Assembly and the Security Council of the United Nations. It is
assisted by a Registry, its international secretariat, whose activities are both judicial and diplomatic,
as well as administrative. The official languages of the Court are French and English.
The ICJ, a court open only to States for cont entious proceedings, and to certain organs and
institutions of the United Nations system for advisory proceedings, should not be confused with the
other ⎯ mostly criminal ⎯ judicial institutions based in The Hague and adjacent areas, such as the
International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the
Security Council), the International Criminal Court (ICC, the first permanent international criminal
court established by treaty, which does not belong to the United Nations system), the Special
Tribunal for Lebanon (STL, an independent judicial body composed of Lebanese and international - 5 -
judges, which is not a United Nations tribunal an d does not form part of the Lebanese judicial
system), or the Permanent Court of Arbitration (PCA, an institution founded in 1899, which is
independent of the United Nations).
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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 Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396) A NNEX 1
Resolution adopted by the Executive Board of the International Fund
for Agricultural Development on 22 April 2010
The Executive Board of the International F und for Agricultural Development, at its
ninety-ninth session held on 21-22 April 2010:
Whereas, by its Judgment No. 2867 of 3 February 2010, the Administrative Tribunal of the
International Labour Organization (ILOAT) confirme d its jurisdiction in the complaint introduced
by Ms A.T.S.G. against the International Fund for Agricultural Development,
Whereas Article XII of the Annex [to] the Stat ute of the Administrative Tribunal of the
International Labour Organization provides as follows:
“1. 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
International Court of Justice.
2. The opinion given by the Court shall be binding.”
Whereas the Executive Board, after consideration, wishes to avail itself of the provisions of
the said Article,
Decides to submit the following legal questions to the International Court of Justice f
or an
advisory opinion:
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 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 pa rties 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 Complainan t 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 d ecision 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 jurisdicti on and/or did it constitute a fundamental fault
in the procedure followed by the ILOAT?
III.Was the ILOAT’s general statement, ma de in support of its decision confirming its
jurisdiction, that “the personnel of the Globa l Mechanism are staff members of the Fund”
outside its jurisdiction and/or did it cons titute a fundamental fault in the procedure
followed by the ILOAT? - 2 -
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 fundame ntal fault in the procedure followed by the
ILOAT?
V. Was the ILOAT’s decision confirming its ju risdiction 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/odid 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 a nd 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 Mo U, 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 fundame ntal 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?
___________ A NNEX 2
Article XII of the Annex to the Statute of the Administrative Tribunal
of the International Labour Organization
1. In any case in which the Executive Board of an international organization which has made
the declaration specified in articleII, paragraph5, 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 International Court of Justice.
2. The Opinion given by the Court shall be binding.
Article 96 of the Charter of the United Nations
1. The General Assembly or the Security Co uncil may request the International Court of
Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so
authorized by the General Assembly, may also re quest advisory opinions of the Court on legal
questions arising within the scope of their activities.
Article 65 of the Statute of the Court
1. The Court may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United Nations to make such a
request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the
Court by means of a written request containing an exact statement of the question upon which an
opinion is required, and accompanied by all documents likely to throw light upon the question.
Article XIII, paragraph 2, of the Relationship Agreement between the United Nations
and the International Fund for Agricultural Development
The General Assembly of the United Nations authorizes the Fund to request advisory
opinions of the International Court of Justice on legal questions arising within the scope of the
Fund’s activities, other than questions concerni ng the mutual relationships of the Fund and the
United Nations or other specialized agencies. Su ch requests may be addressed to the Court by the
Governing Council of the Fund, or by its Executive Board acting pursuant to an authorization by
the Governing Council. The Fund shall inform the Economic and Social Council of any such
request it addresses to the Court.
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The Court finds that the decision given by the Administrative Tribunal of the International Labour Organization in its Judgment No. 2867 is valid