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
Summary
Not an official document
Summary 2012/1
1 February 2012
Judgment No. 2867 of the Administrative Tribunal of the International Labour
Organization upon a complaint filed against the International Fund
for Agricultural Development
Summary of the Advisory Opinion of 1 February 2012
History of the proceedings (paras. 1-18)
The Court begins by recalling that the questions on which the advisory opinion has been
requested are set forth in the resolution adopted by the Executive Board of the International Fund
for Agricultural Development (hereinafter “IFAD” or the “Fund”) on 22 April 2010 (That
resolution is included as Annex 1 to the present Su mmary). The Court then gives a brief summary
of the history of the proceedings.
The Court’s Jurisdiction (paras. 19-27)
The Court first addresses the question whether it possesses jurisdiction to reply to the
request. After recalling that the request for an advisory opinion was submitted under Article XII of
the Annex to the Statute of the Administrative Tribunal of the International Labour Organization
(hereinafter “ILOAT”), the Court notes that th e Executive Board has duly made the declaration
recognizing the jurisdiction of the Tribunal, required by Article II, paragraph 5, of the Statute of the
Tribunal. The Court observes that the power of the Executive Board to request an advisory 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 examines Article96 of the
United Nations Charter, Article 65, paragraph 1, of its Statute and Article XIII, paragraph 2, of the
Relationship Agreement between th e United Nations and the Fund (hereinafter the “Relationship
Agreement”). (These provisions are included in An nex 2 to this Summary.) The Court states that
the Fund’s request for review of a judgment concerning its hosting of the Global Mechanism and
the question of whether it employed MsSaezGarcía do present “legal questions” which “arise
within the scope of the Fund’s activities”. TheCourt notes that, while the authorization given to
IFAD by Article XIII, paragraph 2, of the Rela tionship Agreement excludes “questions concerning
the mutual relationships of the Fund and the United Nations or other specilized agencies”, such
exclusion does not prevent the Court from consider ing the relationships between the Fund and the
Global Mechanism or the Conference of the Parties of the Convention on Desertification
(hereinafter “COP”), which are not specialized agen cies, so far as these relationships are raised by
the questions put to the Court by IFAD. Accordi ngly, the Court finds that the Fund has the power - 2 -
to submit for an advisory opinion the question of the validity of the decision rendered by the
ILOAT in its Judgment No. 2867 and that the Court has jurisdiction to consider the request for an
advisory opinion.
Scope of the Court’s jurisdiction (paras. 28-32)
Under Article VI, paragraph 1, of the Statute of the ILOAT, the Tribunal’s judgment is final
and without appeal. However, pursuant to Article XII, paragraph1, of the Statute of the ILOAT
and ArticleXII, paragraph1, of its Annex, resp ectively, the ILO and international organizations
having made the declaration recognizing the juri sdiction of the ILOAT may nonetheless challenge
the ILOAT judgment within the terms of these provisi ons. Under Article XII, paragraph 2, of the
Statute of the ILOAT and of its Annex, the opinion of this Court given in terms of those provisions
is “binding”. As the Court said in Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco (Advisory Opinion, I.C.J. Reports 1956 , p. 77, hereinafter the
“1956 Advisory Opinion”), that effect goes beyond the scope attributed by the Charter and the
Statute of the Court to an advisory opinion. It does not affect the way in which the Court functions;
that continues to be determined by its Statute and Rules. The power of the Court to review a
judgment of the ILOAT by reference to Article XII of the Annex to the Statute of the ILOAT at the
request of the relevant specialized agency is limited to two grounds: that the Tribunal wrongly
confirmed its jurisdiction or the decision is v itiated by a fundamental fault in the procedure
followed. The Court cites the relevant section of the 1956 Advisory Opinion, in which the Court
emphasized the limits of the first of these grounds . The Court observes that the 1956 Advisory
Opinion stated that the review is not in the natu re of an appeal on the merits of the judgment and
that the challenge cannot properly be transforme d into a procedure against the manner in which
jurisdiction has been exercised or against the substa nce of the decision. With regard to the other
ground, the Court, referring to its Advisory Opinion on Application for Review of Judgement
No.158 of the United Nations Administrative Tribunal , recalls that a fundamental fault in
procedure occurs when an error of procedure “is of such a kind as to violate the official’s right to a
fair hearing . . . and in that sense to deprive him of justice” (I.C.J. Reports 1973, p. 209, para. 92.)
The Court’s Discretion (paras. 33-48)
The Court recalls that Article 65 of its Statute makes it clear that it has a discretion whether
to reply to a request for an advisory opinion. In exercising it, the Court has to have regard to its
character, both as a principal organ of the United Na tions and as a judicial body. The Court early
declared that the exercise of its advisory jurisd iction represents its participation in the activities of
the Organization and, in principle, a request should not be refused (Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Ph ase, Advisory Opinion, I.C.J. Reports 1950 ,
pp.71-72). This is also reflected in the Court’s later statement, in the only other challenge to a
decision of the ILOAT brought to it, that “compelling reasons” would be required to justify a
refusal (1956 Advisory Opinion, I.C.J. Reports 1956, p. 86).
The Court then examines the principle of e quality before it of IFAD on the one hand and the
official on the other, including equality of acces s to the Court and equalities in the proceedings
before the Court. The Court considers that th e principle of equality, which follows from the
requirements of good administration of justice, must now be understood as including access on an
equal basis to available appellate or simila r remedies unless an exception can be justified on
objective and reasonable grounds. Questions ma y now properly be asked whether the system
established in 1946 meets the present-day principle of equality of access to courts and tribunals.
While the Court is not in a position to reform th is system, it can attempt to ensure, so far as
possible, that there is equality in the proceedings before it. In the present case, the unequal position
before the Court of the employing institution and its official, arising from provisions of the Court’s
Statute, has been substantially alleviated by the Court’s decision that the President of the Fund was - 3 -
to transmit to it any statement setting forth the vi ews of Ms Saez García which she might wish to
bring to the attention of the Court, and by the Court’s decision that there would be no oral
proceedings (since the Court’s Statute does not allo w individuals to appear in hearings in such
cases). Although the process of ensuring equali ty in the proceedings was not without its
difficulties, the Court concludes that, by the end of that process, it does have the information it
requires to decide on the questions submitted; th at 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 equality in the proceedi ngs before the Court,
required by its inherent judicial character and by the good administration of justice, has been met.
In light of the analysis above, the Court maintains its concern about the inequality of access
to the Court and remains concerned about the length of time it took the Fund to comply with the
procedures aimed at ensuring equality in the present proceedings. Nevertheless, taking the
circumstances of the case as a whole, and in particular the steps it has taken to reduce the inequality
in the proceedings before it, the Court considers that the reasons that could lead it to decline to give
an advisory opinion are not sufficiently compelling to require it to do so.
Merits (paras. 49-99)
The Court recalls that the request for an advisory opinion concerns the validity of the
Judgment given by the ILOAT relating to Ms SaezGarcía’s contract of employment.
MsSaezGarcía, a national of Venezuela, w as offered by IFAD on 1March2000 a two-year
fixed-term contract at P-4 level to serve as a Programme Officer in the Global Mechanism, an
entity hosted by IFAD. The purpose of the Global Mechanism ⎯ established by the United
Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought
and/or Desertification, particularly in Africa ⎯ is to mobilize and channel financial resources to
developing countries. She accepted this offer on 17 March 2000. Subsequently, her contract was
twice extended, to 15 March 2004 a nd 15 March 2006, respectively. In addition, her title changed
to “Programme Manager, Latin America Region”, from 22March2002, and is subsequently
referred to, in the notice of non-renewal of her contract as “[P]rogra mme [M]anager for GM’s
regional desk for Latin America and the Caribbean”. By a memorandum of 15 December 2005, the
Managing Director of the Global Mechanism inform ed her that the COP had decided to cut the
Global Mechanism’s budget for 2006-2007 by 15percent. As a result, the number of staff paid
through the core budget had to be reduced. Her pos t would therefore be abolished and her contract
would not be renewed upon expiry on 15March2006. He offered her a six-month contract as
consultant from 26 March to 15 September 2006 as “an attempt to relocate her and find a suitable
alternative employment”. MsSaezGarcía di d not accept that contract. On 10May2006,
Ms Saez García requested a facilitation process, whic h ended with no settlement on 22 May 2007.
She then challenged the Managing Director’s decision by filing an appeal with the Joint Appeals
Board of the Fund (hereinafter the “JAB”) under IFAD’s Human Resources Procedures Manual
(hereinafter “HRPM”). On 13December2007 the JAB unanimously recommended that
MsSaezGarcía be reinstated and that she be aw arded a payment of lost salaries, allowances and
entitlements. On 4April2008 the President of the Fund rejected the recommendations.
Ms Saez García then filed on 8 July 2008 a compla int with the Tribunal requesting it to “quash the
decision of the President of IFAD rejecting the co mplainant’s appeal”, order her reinstatement and
make various monetary awards. In its Judgment of 3February2010, the Tribunal decided that
“[t]he President’s decision of 4April2008 is set aside” and made orders for the payment of
damages and costs.
With respect to the powers of, and relations hips between, the Fund, the Global Mechanism,
the COP and the Permanent Secretariat of the C onvention on Desertification, the Court examines
the provisions of the Convention on Desertif ication and the Memorandum of Understanding
between the Conference of the Parties of the Conve ntion to Combat Desertification and the Fund - 4 -
regarding the Modalities and Administrative Operati ons of the Global Mechanism (hereinafter the
“MOU”). The Court observes that, while the Perman ent Secretariat is institutionally linked to the
United Nations, it is not fully integrated in the work programme and management structure of any
particular department or programme. The Cour t recalls that, under the Permanent Secretariat’s
Headquarters Agreement with Germany, the Convention Secretariat possesses the legal capacity to
contract, to acquire and dispose of movable and immovable property and to institute legal
proceedings in the host country. The Court observes that, under the Convention on Desertification,
the COP and the Permanent Secretariat are expressly established as institutions and given various
powers. By contrast, the Global Mechanism is not included in the Part of the Convention on
“Institutions” and it is not given any express powers of contracting or entering into any agreements
by the Convention nor by a headquarters agreem ent such as that relating to the Permanent
Secretariat. Moreover, the record before the Court does not include any instances of it entering into
contracts or agreements. The position of the Global Mechanism may also be contrasted with that
of the Fund, which possesses international legal personality by virtue of Article 10, Section 1 of the
Agreement establishing IFAD, and is given the capac ity to contract and to acquire and dispose of
movable and immovable property under Article II, Section 3 of the Convention on the Privileges
and the Immunities of the Specialized Agencies of 21November1947. The Court notes that the
Convention directs the COP to identify an or ganization to house it and to make appropriate
arrangements with such an organization for its administrative operations. It was for this reason that
a Memorandum of Understanding was concluded between the COP and IFAD in 1999 as described
above. Neither the Convention nor the MOU e xpressly confer legal personality on the Global
Mechanism or otherwise endow it with the capacity to enter into legal arrangements. Further, in
light of the different instruments setting up IFAD, the COP, the Global Mechanism and the
Permanent Secretariat, and of the practice include d in the record before the Court, the Global
Mechanism had no power and has not purported to exercise any power to enter into contracts,
agreements or “arrangements”, internationally or nationally.
A. Response to Question I
The Court then turns to the questions put to it for an advisory opinio n and notes that such
questions should be asked in neutral terms rather than assuming conclusions of law that are in
dispute. They should not include reasoning or argum ent. The questions asked in this case depart
from that standard as reflected in normal practice. The Court will nevertheless address them.
The Court is requested to give its opinion on the competence of the ILOAT to hear the
complaint brought against the Fund by MsSaezGarcía on 8July2008. The competence of the
Tribunal regarding complaints filed by staff member s of organizations other than the ILO is based
on Article II, paragraph 5, of its Statute, according to which “[t]he 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” to the Stat ute of the ILOAT and having made a declaration
recognizing the jurisdiction of the Tribunal.
The Fund considers Ms Saez García to be a st aff member of the Global Mechanism, not the
Fund, and therefore objected to the jurisdiction of the Tribunal over her complaint. Before the
Tribunal, the Fund contended that its acceptance of the jurisdiction of the ILOAT did not extend to
entities that are hosted by it pursuant to international agreements. It maintained that the Global
Mechanism was not an organ of the Fund, and that, even if the Fund administered the Global
Mechanism, this did not make the complainant a staff member of the Fund; nor did it make the
actions of the Managing Director of the Global Mech anism attributable to the Fund. According to
the Fund, despite the fact that the staff regulations, rules and policies of IFAD were applied to the
complainant, she was not a staff member of the Fund. Conversely, the complainant submitted that
she was a staff member of IFAD throughout the relevant period until her separation on - 5 -
15March2006, and that her letters of appointment and renewal of contract all offered her an
appointment with the Fund. In its Judgment No. 2867 of 3 February 2010, the Tribunal rejected the
jurisdictional objections made by the Fund and decl ared itself competent to entertain all the pleas
set out in the complaint submitted by Ms Saez García. It is this confirmation by the Tribunal of its
“competence to hear” the complaint filed by Ms SaezGarcía that is challenged by the Executive
Board of the Fund and is the object of the firs t question put to the Cour t. Under ArticleII,
paragraph5, of its Statute, the Tribunal could h ear 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 appoint ment of such an official or the provisions of
the staff regulations of the organization. The first set of conditions has to be examined with
reference to the competence ratione personae of the Tribunal, while the second has to be considered
within the context of its competence ratione materiae . The Court will examine these two sets of
conditions below.
1. Jurisdiction ratione personae of the Tribunal in relation to the complaint submitted by
Ms Saez García
Since recourse to the ILOAT is open to staff members of IFAD, the Court will now consider
whether Ms Saez García was an official of the Fund , or of some other entity that did not recognize
the jurisdiction of the Tribunal. The Court not es that the word “official” and the words “staff
member” may be considered to have the same m eaning in the present context and thus uses both
terms interchangeably. The IFAD Human Resources Policy defines a staff member as “a person or
persons holding a regular, career, fi xed-term, temporary or indefinite contract with the Fund”. To
qualify as a staff member of the Fund, MsSaezGarcía would have to hold one of the
above-mentioned contracts with the Fund. The Co urt notes that on 1 March 2000, Ms Saez García
received an offer of employment, written on the Fund letterhead, for “a fixed-term appointment for
a period of two years with the International Fund for Agricultural Development (IFAD)”. The
letter stated that the appointment “[would] be ma de in accordance with the General provisions of
the IFAD Personnel Policies Manual... [and] with such Administrative Instructions as may be
issued . . . regarding the application of the Manual” . The offer of appointment also noted that her
contract might be terminated by IFAD with one month’s written notice and that she was subject to
a probationary period as prescribed in the Pers onnel Policies Manual (hereinafter the “PPM”).
Moreover, under the terms of the offer, she was required to give written notice of at least one
month to IFAD of any desire to terminate her contract. The renewals of her contract to
March2004 and to March 2006, respectively, referre d to an “extension of [her] appointment with
the International Fund for Agricultural Development”. It was also said in the letters of renewal that
all other conditions of her employment would remain unchanged and that her appointment would
“continue to be governed by the Personnel Policies Manual, together with the provisions of the
Human Resources Handbook regarding the application of the Manual”.
The Court observes that a contract of employment entered into between an individual and an
international organization is a source of rights and du ties for the parties to it. In this context, the
Court notes that the offer of appointment accepted by Ms Saez García on 17 March 2000 was made
on behalf of the Fund by the Director of its Personnel Division, and that the subsequent renewals of
this contract were signed by personnel officers of the same Division of the Fund. The Fund does
not question the authority vested in these officials to act on its behalf on personnel matters. These
offers were made in accordance with the genera l provisions of the PPM, which then contained the
regulations and rules applicable to staff members of the Fund. As the Court stated in its 1956
Advisory Opinion, staff regulations and rules of the organization in question “constitute the legal
basis on which the interpretation of the contract must rest” (I.C.J. Reports 1956 , p. 94). It follows
from this that an employment relationship, based on the above-mentioned contractual and statutory
elements, was established between Ms Saez García and the Fund. This relationship qualified her as
a staff member of the organization. - 6 -
Ms Saez García’s legal relationship with the Fu nd as a staff member is further evidenced by
the facts surrounding her appeal against the decision to abolish her post, and the consequent
non-renewal of her fixed-term appoi ntment. Her appeals were initia lly lodged with the internal
machinery established by the Fund for handling staff grievances, namely the facilitation process
and the JAB, both of which were conducted in accordance with the HRPM. The memorandum of
4 April 2008 by the President of IFAD rejecting the recommendations of the JAB does not contain
any indication that MsSaezGarcía was not a staff member of the Fund. On the contrary, it is
stated in the memorandum that “the non-renewal of your fixed-term contract was in accordance
with section1.21.1 of the IFAD HRPM”. There is also nothing to suggest that, in rejecting the
recommendation of the JAB, the President was acting otherwise than in his capacity as the
President of IFAD.
The Court then rejects three additional arguments submitted by the Fund to support its
contention that MsSaezGarcía was not a staff me mber of the Fund. With respect to the Fund’s
argument that an administrative instruction issued by IFAD in the form of a President’s Bulletin on
21January2004 was meant “to refine and clarif y the legal position of the personnel working for
the Global Mechanism”, and 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”, the
Court states its view that the provisions of the IFAD President’s Bulletin constitute further
evidence of the applicability of the staff regulations and rules of IFAD to the fixed-term contracts
of Ms Saez García and provide an additional indication of the existence of an employment
relationship between her and the Fund. With re spect to the Fund’s argument that the ILOAT
lacked jurisdiction because neither the COP nor the Global Mechanism has recognized its
jurisdiction, the Court observes that the Tribunal did not base its jurisdiction with respect to the
complaint filed by Ms Saez García on such acceptan ce. With respect to the Fund’s argument that
the Tribunal did not have jurisdiction to review the decision not to renew MsSaezGarcía’s
contract which was taken by the Managing Director of the Global Mechanism as he was not a staff
member of IFAD, the Court considers that the stat us of the Managing Director has no relevance to
the Tribunal’s jurisdiction ratione personae, which depends solely on the status of Ms Saez García.
In light of the above, the Court concludes th at the Tribunal was competent ratione personae
to consider the complaint brought by Ms Saez García against IFAD on 8 July 2008.
2. Jurisdiction ratione materiae of the Tribunal
As a staff member of the Fund, Ms Saez García had the right under the HRPM to submit her
complaint to the ILOAT. The Fund, however, argues that, even if it were to be assumed that the
Tribunal had jurisdiction ratione personae over the complainant because of her being a staff
member of the Fund, the Tribunal would still not have jurisdiction ratione materiae over the
complaint. The Fund argues that, based on the text of the complainant’s pleadings submitted to the
Tribunal, it is clearly not possible to fit her complaints under the two classes of complaints set forth
in ArticlII, paragraph5, of the Tribunal’ s Statute, namely: (1) complaints alleging
“non-observance, in substance or form, of th e terms of appointment of officials”; and
(2)complaints alleging non-observance “of provisions of the Staff Regulations”. The Fund also
contends that the Tribunal was not competent to entertain the complainant’ s arguments as derived
from the MOU, the Convention on Desertification or the COP’s decisions, as these are outside the
scope of ArticleII, paragraph5, of the Tribunal’ s Statute. MsSaezGarcía asserts that the large
number of jurisdictional questions raised by the Fund in its request for an advisory opinion suggest
that it is indeed going beyond the rulings on jurisd iction made by the Tribunal, to question either
the manner in which the Tribunal has exercised its ju risdiction or the breadth of its considerations
in hearing the complaint.
The Court reiterates that the decision impugned before the Administrative Tribunal was that
of the President of IFAD contained in a memora ndum to MsSaezGarcía dated 4April2008 in - 7 -
which he rejected the recommendations of the JAB to reinstate MsSaezGarcía. MsSaezGarcía
also challenged the decision of the Managing Direct or not to renew her contract, alleging that it
was tainted with abuse of authority and that he was not entitled to determine the Global
Mechanism’s programme of work independently of the COP and of the President of IFAD. The
Fund objected to the Tribunal’s competence to examine these allegations since they would involve
the examination by the Tribunal of the decisi on-making process of the Global Mechanism for
which it had no jurisdiction. The Tribunal rej ected these objections on the ground that “decisions
of the Managing Director relating to [staff in the Global Mechanism] are, in law, decisions of the
Fund”.
The Court cannot agree with the arguments of the Fund that the Tribunal did not have
competence to examine the decision of the Managing Director of the Global Mechanism. First, the
Managing Director of the Global Mechanism was a staff member of the Fund when the decision of
non-renewal of Ms Saez García’s contract was taken, as evidenced by his letter of appointment and
the conditions of his appointment. Secondly, Ms SaezGarcía’s complaint to the Tribunal falls
within the category of allegations of non-observance of the “terms of appointment of an official” as
specified in ArticleII, paragraph5, of the Stat ute of the Tribunal. Thirdly, the letters of
appointment and renewal of contract of Ms Saez Ga rcía clearly stipulate that her appointment was
made in accordance with the general provisions of the IFAD Personnel Policies Manual and any
amendments thereto, as well as such administrative instructions as may be issued from time to time
regarding the application of the Manual. The non-observance of the provisions of these
instruments, or those adopted subsequently to replace them, could be impugned before the Tribunal
in accordance with ArticleII, paragraph5, of its Statute, and MsSaezGarcía did in fact allege
violations of the HRPM before the Tribunal. The Court, therefore, concludes that
MsSaezGarcía’s complaint to the ILOAT, followi ng the decision of the Fund not to renew her
contract, falls within the scope of allegations of non-observance of her terms of appointment and of
the provisions of the staff regulations and rule s of the Fund, as prescribed by ArticleII,
paragraph 5, of the Statute of the Tribunal. 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 IFAD.
With regard to the Fund’s contention that th e Tribunal lacked jurisdiction to examine the
provisions of the MOU and the decision-making process of the COP, as those matters are outside
the scope of ArticleII, paragraph5, of its Statut e, the Court is of the opinion that the Tribunal
could not avoid examining the legal arrangement s governing the relationship between the Global
Mechanism and the Fund, as well as the status and accountability of the Managing Director of the
Global Mechanism. The Court states that, even if, contrary to the observation it has made above,
the Global Mechanism did have a separate legal pers onality and the capacity to conclude contracts,
the conclusions arrived at above would still be wa rranted, essentially on the basis of contractual
documents and the provisions of the IFAD staff regulations and rules. The Court, therefore, finds,
in response to the first question put to it by IFAD, that the ILOAT was competent to hear the
complaint introduced against IFAD, in accordance with Article II of its Statute, in view of the fact
that MsSaezGarcía was a staff member of th e Fund, and her appointment was governed by the
provisions of the staff regulations and rules of the Fund.
B. Response to Questions II to VIII
The Court, having decided to give an affirma tive answer to the first question, and having
concluded that the Tribunal was justified in confir ming its jurisdiction, is of the view that its
answer to the first question put to it by the Fund covers also all the issues on jurisdiction raised by
the Fund in Questions II to VIII of its request for an advisory opinion. To the extent that Questions
II to VIII seek the opinion of the Court on the r easoning 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
ILOAT, a request for an advisory opinion is limite d to a challenge of the decision of the Tribunal - 8 -
confirming its jurisdiction or to cases of fundament al fault of procedure. The Court has already
addressed the IFAD Executive Board’s challenge to the decision of the Tribunal confirming its
jurisdiction. Not having a power of review with regard to the reasoning of the Tribunal or the
merits of its judgments under ArticleXII of the Annex to the Statute of the ILOAT, the Court
cannot give its opinion on those matters. As the Court observed in its 1956 Advisory Opinion, “the
reasons given by the Tribunal for its decision on the merits, after it confirmed its jurisdiction,
cannot properly form the basis of a challenge to the jurisdiction of the Tribunal” (I.C.J. Reports
1956, p.99). With respect to the possible exis tence of a “fundamental fault in the procedure
followed”, raised in Questions II to VIII, the Cour t recalls that this concept was explained by the
Court in its Advisory Opinion of 1973 on the Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal, as set out above. Questions II to VIII do not identify any
fundamental fault in the procedure which may have been committed by the Tribunal in its
consideration of the complaint against the Fund. Thus, in the view of the Court, these questions
constitute either a repetition of the question on juri sdiction, which the Court has already answered,
or have an object which concerns wider issues falling outside the scope of Article XII of the Annex
to the Statute of the ILOAT which was invoked by the Fund as the basis of its request for an
advisory opinion.
C. Response to Question IX
Question IX put by the IFAD Executive Board in its request for an advisory opinion is
formulated as follows: “What is the validity of the decision given by the ILOAT in its Judgment
No. 2867?” The Court, having answered in the a ffirmative the first question of IFAD, and having
therefore decided that the Tribunal was entirely ju stified in confirming its jurisdiction, and not
having found any fundamental fault in procedure committed by the Tribunal, finds that the decision
given by the ILOAT in its Judgment No. 2867 is valid.
Operative clause (para. 100)
For these reasons,
T HE COURT ,
U(na)nimously,
Finds that it has jurisdiction to give the advisory opinion requested;
U(na)nimously,
Decides to comply with the request for an advisory opinion;
(3) Is of the opinion:
(a) with regard to Question I,
Unanimously,
That the Administrative Tribunal of the International Labour Organization was competent,
under ArticleII of its Statute, to hear the compla int introduced against the International Fund for
Agricultural Development on 8 July 2008 by Ms Ana Teresa Saez García;
(b) with regard to Questions II to VIII,
Unanimously, - 9 -
That these questions do not require further answers from the Court;
(c) with regard to Question IX,
Unanimously,
That the decision given by the Administrative Tribunal of the International Labour
Organization in its Judgment No. 2867 is valid.
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 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 Fund for Agricultural Development, at its
ninety-ninth session held on 21-22 April 2010:
Whereas, by its Judgment No. 2867 of 3 Februa ry 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 Statute 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.
___________ Annex to Summary 2012/1
Separate opinion of Judge Cançado Trindade
1. In his Separate Opinion, composed of 15 parts, Judge Cançado Trindade begins by
explaining that, though he concurred with his vote to the adoption of the present Advisory Opinion,
he feels bound to leave on the records the founda tions of his personal pos ition on certain issues
raised in the course of the present advisory proceedings, which touch on points of juridical
epistemology that lay on the foundations of contemporary law as well as the internal law of the
United Nations (part I), such as the emergence of individuals as subjects of international law,
endowed with international juridical capacity, and their appeals for the observance of the principle
of equality of arms in the international administrative contentieux.
2. He identifies the position of the individual as subject of rights in international law as the
core of the matter before the Court in the presen t Advisory Opinion, after reviewing its factual
background (part II), and drawing attention to the determination by the Administrative Tribunal of
the ILO (the ILOAT) of compliance by IFAD with its Judgment n. 2867 of 2010, in favour of the
individual complainant, Ms. Ana Teresa Saez Garc ía (part III). Judge Cançado Trindade then
draws attention to the persisting difficulty faced by the individual complainant (part IV), in that all
communications coming from her had to be transmitted to the Court through the IFAD, thus raising
the issue of the application of the principle of the good administration of justice (la bonne
administration de la justice).
3. Turning to the individual complainant’s appeal for equality of arms (égálité des armes ),
Judge Cançado Trindade identifies two distinct inequality claims in the present advisory
proceedings (part V). The first claim concerns the fact that, pursuant to Article XII of the Annex to
the ILOAT Statute, only the international organi zation at issue, the IFAD, can challenge an
unfavourable decision of the ILOAT before the ICJ (a question which was examined by the ILOAT
in its Judgment n. 3003 of 2011, concerning the IFAD’s request for stay of execution of Judgment
n. 2867 of the ILOAT, which found in favour of th e complainant, Ms. Saez García). The second
claim of procedural inequality pertains to the pos ition of the individual complainant in the present
proceedings before this Court, and more particularly to an aspect not addressed in the ILOAT’s
Judgment n. 3003 of 2011, ⎯ but touched upon by Ms. Saez García herself, ⎯ namely, the fact
that only the IFAD (her opposing party in the presen t case) can address the Court directly, and that
all her communications and submissions to the ICJ ought to be done through the IFAD.
4. The contrasting positions of the individual complainan t and the IFAD in the present
advisory proceedings are then singled out by Judge Cançado Trindade (part VI). He recalls that the
same problem had led to the abolition, by the U. N. General Assembly in 1995, of the review
procedure of the United Nations Administrative Tribunal (UNAT) rulings by the ICJ, keeping in
mind the principle of the equality of parties. In the course of the presen t advisory proceedings
before the ICJ, the difficulties encountered by th e original complainant, Ms. Saez García (ensuing
from her dependence upon the IFAD for the simple tr ansmission of documents to the Court), twice
required the intervention of the Court’s Registry, having in mind the good administration of justice.
5. In part VII of his Separate Opinion, Judge Cançado Trindade then embarks on an
examination of the lack of equality of arms as a recurring problem in review procedures of the kind
before the ICJ. He begins by warning that, d espite the fact that one is here before general
principles of law such as the equality of arms (égalité des armes ) before courts and tribunals, and
the principle of la bonne administration de la justice , the fact remains that the problem at issue has
regrettably persisted for more than half a century (56 years), “much to the detriment of individuals,
subjects of rights under international administrative law, or the law of the United Nations”. - 2 -
6. He then proceeds to an overview of the fi ve previous Advisory Op inions of the kind,
delivered by the ICJ (in 1954, 1956, 1973, 19 82 and 1987), preceding the present Advisory
Opinion, so as to enable one “to appreciate th e difficulties experienced by the Court when faced
with a conception of international law which had the vain pretension to defy the passing of time (as
legal positivists do)”. Those were the Advisory Opinion of 1954 on the Effect of Awards of
Compensation Made by the U.N. Administrative Tribunal ; the Advisory Opinion of 1956 on
Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO ;
the Advisory Opinion of 1973 on the Applicati on for Review of Judgment n. 158 of the U.N.
Administrative Tribunal ; the Advisory Opinion of 1982 on the Application for Review of
Judgement n. 273 of the U.N. Administrative Tribunal ; and the Advisory Opinion of the ICJ of
1987, on the Application for Review of Judgement n. 333 of the U.N. Administrative Tribunal .
7. At the end of his overview, Judge Cançado Trindade assesses that “[f]or 56 years the force
of inertia and mental lethargy have prevailed in this regard. The abnormal procedure keeps on
being followed by the Court (in respect of review of the ILOAT judgments), in 2011 as in 1956”,
on the basis of “the dogma of times past that individuals cannot appear before the ICJ because they
are not subjects of international law. The result is the prehistoric and fossilized procedure that
defies logic, common sense and the basic principle of the good administration of justice (la bonne
administration de la justice )”. He then recalls that, throughout the last 56 years, “well-founded
expressions of discontent with the present situa tion emanated from Judges (also jurists) from
different legal systems and traditions”, his predece ssors in the ICJ. To Judge Cançado Trindade,
“[t]his is not surprising, as we are here before basic principles of law, such as those of the good
administration of justice (la bonne administration de la justice ) and of the equality of arms (égalité
des armes) in (international) legal procedure”.
8. He further recalls (part VIII) that, despite the persistence of the problem of the procedural
inequality (in the proceedings of the five previous Advisory Opinions of the Court, 1954, 1956,
1973, 1982 and 1987), or parallel to it, “the inc lination of the ICJ has been in the sense of
confirming the validity of the decisions at issue of both the UNAT and the ILOAT, whether
favourable to the original complainants or not. Thus, in its Advisory Opinions of 1954, 1973, 1982
and 1987, it upheld the prior decisions of the UNAT, while in its Advisory Opinion of 1956 and in
the present one of 2012, it did the same in respect of prior decisions of the ILOAT (…). Yet, the
handling of the issue of procedural inequality, ⎯ e.g., by deciding not to have oral hearings in the
course of the proceedings, ⎯ has been and is”, in his understanding, “most unsatisfactory: rather
than a solution, it is the capitulation in face of a persisting problem”.
9. This being so, it seems all too proper to him to rescue, for consideration in the present
context, “the advances experienced by the jus gentium of our times with the emergence and
consolidation of individuals as subjects of Interna tional Law, with their access to justice lato sensu
(encompassing procedural equality), with their locus standi in judicio and their jus standi , in the
hope that due consideration will be given to them in the operation of international administrative
jurisdictions in general (encompassing the review procedure in particular) in future developments”.
That is what Judge Cançado Trindade does in the remaining parts of his Separate Opinion.
10. In part IX of it, he addresses the issue of the emergence of individuals as subjects of
international law, endowed with international juridical capacity. He begins by singling out the
legacy of the writings of the “founding fathers” of the droit des gens (Francisco de Vitoria, Alberico
Gentili, Francisco Suárez, Hugo Grotius, Samuel Pufendorf, Christian Wolff, Cornelius van
Bynkershoek), on the subjects of jus gentium . After reviewing subsequent doctrinal developments, he
draws attention to the fact that the advent of permanent international jurisdictions, as from the early - 3 -
XXth century (starting with the 1907 Central Ameri can Court of Justice), “in fact transcended a
purely inter-State outlook of the international contentieux”.
11. In our days, ⎯ he proceeds, ⎯ the co-existence of international human rights tribunals
(the European and Inter-American Courts of Human Rights, lately followed by the African Court
of Human and Peoples’ Rights) bears witness of the fact that individuals were erected into subjects
of international law, “endowed with intern ational procedural capacity”. In fact, ⎯ Judge Cançado
Trindade adds, ⎯ individuals have “always remained in co ntact, directly or indirectly, with the
international legal order. In the inter-war period, the experiments of the minorities and mandates
systemsunder the League of Nations, for example, bear witness thereof. They were followed, in that
regard, by the trusteeship systemunder the United Nations era, parallel to the development under this
latter, along the years, of the multiple mechanisms ⎯ conventional and extra-conventional ⎯ of
international protection of human rights”.
12. In part X of his Separate Opinion, Ju dge Cançado Trindade further recalls that the
question of the procedural capacity of the indi viduals before the ICJ, and its predecessor the
Permanent Court of International Justice (PCIJ), was effectively considered on the occasion of the
original drafting, in 1920, by the Advisory Committee of Jurists appointed by the old League of
Nations, of the Statute of the PCIJ. The view wh ich prevailed in 1920, that “only the States were
juridical persons in the international order”, and wh ich has been maintained in Article 34 (1) of the
Statute of the ICJ (formerly the PCIJ) to date ⎯ “was promptly and strongly criticized in the more
lucid doctrine of the epoch (already in the twenties) ”. In Judge Cançado Tr indade’s view, “[t]he
option made by the draftsmen of the Statute of the old PCIJ, stratified with the passing of time in
the Statute of the ICJ up to the present time, is ev en more open to criticism if we consider that,
already in the first half of the XXth century, ther e were experiments of International Law which in
effect granted international procedural status to individuals”.
13. This evolution of the right of international individual petition, ⎯ he adds, ⎯ “intensified
and generalized in the era of the United Nations”, with the adoption of the system of individual
petitions under some universal human rights treatie s of our times, in addition to human rights
conventions at regional level. The question of acce ss of individuals to international justice, with
procedural equality, underwent a remarkable deve lopment in recent decades. And Judge Cançado
Trindade proceeds:
“The dogmatic position taken originally in 1920, on the occasion of the
preparation and adoption of its Statute, did not hinder the PCIJ to occupy itself
promptly of cases pertaining to the treatment of minorities and inhabitants of cities or
territories with a juridical statute of their own. In considerations developed in the
examination of such matters, the PCIJ went well beyond the inter-State dimension,
taking into account the position of individuals themselves (as in, e.g., inter alia , the
Advisory Opinion on the Jurisdiction of the Courts of Danzig , 1928). Ever since, the
artificiality of such dimension became no ticeable and acknowledged, already at an
early stage of the case-law of the PCIJ.”
14. He then refers to subsequent examples, in the case-law of the ICJ itself, to the same effect,
namely: the Nottebohm case concerning double nationa lity (Liechtenstein versus Guatemala,
1955); the case concerning the Application of the Convention of 1902 Governing the Guardianship
of Infants (The Netherlands versus Sweden, 1958); the cases of the Trial of Pakistani Prisoners of
War (Pakistan versus India, 1973); of the Hostages (U.S. Diplomatic and Consular Staff) in
Teheran case (United States versus Iran, 1980); of the East-Timor (Portugal versus Australia,
1995); the case of the Application of the Convention against Genocide (Bosnia-Herzegovina - 4 -
versus Yugoslavia, 1996); and the three successive cases concerning consular assistance ⎯
namely, the case Breard (Paraguay versus United States, 1998), the case LaGrand (Germany versus
United States, 2001), the case Avena and Others (Mexico versus United States, 2004).
15. In those cases, ⎯ he further adds, ⎯ “one of their predominant elements was precisely
the concrete situation of the individuals directly affected, and not merely abstract issues of
exclusive interest of the litigating States in their relations inter”. Moreover, he further recalls
that, in the case of Armed Activ ities in the Territory of Congo (D.R. Congo versus Uganda, 2000)
the ICJ was concerned with “grave violations of human rights and of International Humanitarian
Law”; in the Land and Maritime Boundary between Cameroon and Nigeria (1996), it was likewise
concerned with “the victims of armed clashes”. More recent examples wherein “the Court’s
concerns have gone beyond the inter-State outlook” include, e.g., the case on Questions Relating to
the Obligation to Prosecute or Extradite (Belgium versus Senegal, 2009) pertaining to the principle
of universal jurisdiction under the U.N. Convention against Torture, the Advisory Opinion on the
Declaration of Independence of Kosovo (2010), the case of A.S. Diallo (Guinea versus D.R.
Congo, 2010) on detention and expulsion of a fore igner, the case of the Jurisdictional Immunities
of the State (Germany versus Italy, counter-claim, 2010), the case of the Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus
Russian Federation, 2011), the case of the Temple of Preah Vihear (Cambodia versus Thailand,
2011).
16. The “artificiality of the exclusively inter-S tate outlook of the procedures before the ICJ”
is thus “clearly disclosed by the very nature of some of the cases submitted to it”, and remains
susceptible of further criticisms, for not having acco mpanied the evolution of international law.
This is the case of the review procedure, as in the present advisory proceedings before the Court; it
defies the passing of time by insisting on the outdated lack of locus standi in judicio of individuals
in the review procedures of the kind before the IC J (part XII). In this connection, Judge Cançado
Trindade recalls that, already at the Xth session of the U.N. General Assembly (1955), the then
U.N. Secretary-General (Dag Hammarskjold) presented to it a Memorandum titled “Participation
of Individuals in Proceedings before the International Court of Justice”, stressing the need to devise
an equitable procedure in that emerging domain, with “the po ssible participation of individuals in
proceedings before the International Court of Justice”, as subjects of rights. Thus, ⎯ Judge
Cançado Trindade proceeds, ⎯ “by the mid-XXth century, the individuals’ inte rnational legal
standing, and the need to secure a procès equitable (also in the emerging law of international
organizations) were already recognized”.
17. In part XIII of his Separate Opinion, Judge Cançado Trindade strongly supports the
“imperative of securing the equality of parties in th e international legal process” before the ICJ, as
“a component of the right of access to justice lato sensu ”. To that effect, he reviews the
contribution of the relevant case-law on the matter of the European and Inter-American Courts of
Human Rights. He then states that “[i]t is firmly established, in c ontemporary international
procedural law, that contending parties are to be afforded the same opportunity to present their case
and to take cognizance of, and to comment upon, the arguments advanced and the evidence
adduced by each other, in the course of the proceedings”. Likewise, “the principe du contradictoire
has marked its presence in the most distinct contemporary international jurisdictions”.
18. Part XIV of Judge Cança do Trindade’s Separate Opinion is devoted to “the need to
secure the locus standi in judicio and the jus standi to individuals before international tribunals,
including the ICJ”, in order to guarantee the equality of the parties in the international legal process
(as a component of the right of access to justice lato sensu), in review procedures such as the one in
the cas d’espèce. Due to “an outdated dogma, imposed upon this Court since its historical origins”, - 5 -
individuals cannot appear before itself because they are still not regarded as subjects of
international law. The result, ⎯ Judge Cançado Trindade points out critically, ⎯is that “[o]nly the
international organization concerne d (the employer) has jus standi and locus standi in judicio
before the ICJ, the individual (the employee) depends on the decision (as to resorting to this Court)
of the employer, and, if the matter is submitted to the Court, he or she cannot appear before it. This
is certainly a double procedural inequality before the World Court”.
19. In his concluding observations (part XV ), Judge Cançado Trindade holds that the
advisory jurisdiction of the ICJ seems to offer an adequate framework for the consideration of
possible advances in this domain, going beyond a strictly inter-State outlook, and overcoming “a
dogma entirely outdated”, particularly in “an epoch, such as ours, of the rule of law at national and
international levels ”. The high significance of this topic is that it appears to go beyond an
unsatisfactory inter-State outlook, in the line of recent developments in several domains of
contemporary international law. This, in hi s view, cannot pass unnoticed, or unexplored, in a
World Court such as the ICJ. The participation of individuals in review procedures before the ICJ
would, in his understanding, preserve the principe du contradictoire , “essential in the search for
truth and the realization of justice, guarant eeing the equality of arms (égalité des armes ) in the
whole procedure before the Court, essential to la bonne administration de la justice”.
20. To Judge Cançado Trindade, “[t]his is logical, since, to the international legal personality
of the parties ought to correspond their full juridical capacity to vindicate their rights before the
Court. In addition, their public participation in the proceedings before the Court recognizes the
right of free expression of the contending parties th emselves, in affording them the opportunity to
act as true subjects of law. This provides those w ho feel victimized and are in search of justice a
form of reparation, in directly contributing ⎯ with their participation ⎯ to the patient
reconstitution and determination of the facts by the Court itself”. All these considerations render
the subject-matter at issue, in his view, suita ble for further careful consideration from now
onwards. He concludes that “as this Court is to perform its functions at the height of the challenges
of our times, as the International Court of Justice, it is bound at last to acknowledge that individuals
are subjects of international law, of the jus gentium of our times”.
Declaration of Judge Greenwood
Judge Greenwood agrees with the answers given by the Court and the reasoning on which
they are based. He expresses serious reservations a bout the one-sided nature of the provision for
recourse to the Court in ArticleXII of the Annex to the Statute of the Administrative Tribunal of
the International Labour Organiza tion and about the difficulty of ensuring equality between the
employing organization and the employee. He considers that it is beyond doubt that
Ms Saez García was employed by IFAD. He would have supported an orde r that IFAD should pay
at least part of Ms Saez García’s legal costs had that been requested.
___________
Summary of the Advisory Opinion of 1 February 2012