International Court of Justice
Judgment No..2867 of the Administrative
Tribunal of the International Labour
Organization upon a Complaint against the
International Fund for Agricultural
Development
(Request for Advisory Opinion)
Written Comments of the International Fund
/ \
' 1 for Agricultural Development
11 March 2011 TABLE OF CONTENTS
Chapter 1. INTRODUCTION........................................................................
....1...............
Chapter 2. THE ISSUE OFTHE EMPLOYER'SIDENTITY.......................................................1
A. Complainant's Admissions .......................................................2...........
B. Functions performed ............................................................4...........
...
C. Distinct mandate ...............................................................7........
........
D. Distinct needs..................................................................8.....
............
E. Distinct governance .......................................-...................10.....
F. Distinct legal personalities ..................................................12...............
(i) The issue of the Global Mechanism's legal personality .....................12
(ii) Legal personality of the Conference of the Parties and legal capacity
of the Global Mechanism distinguished .....................................13....
G. Conclusion ....................................................................20..
...............
Chapter 3. LEGALMEANING OFTHE TERM"HOUSING" IN THE PRESENT
CONTEXT................................................;................................20........
A. Interpretation ................................................................21......
...........
B. Substance .....................................................................26.
................
C. Conclusion ....................................................................27..
...............
Chapter 4. SUMMARYOF CONCLUSIONSAND REQUEST................................................... 27 Chapter 1. INTRODUCTION
1. Pursuant to paragraph 3 of the Order dated 29 April 2010 of the International Court
of Justice ("ICJ" or "Court") and the Order dated 24 January 2011 of the President
of the Court, the International Fund for Agricultural Development ("IFAD" or "Fund'')
submits the present written comments on the written statement of the Plurinational
State of Bolivia ("Bolivia").1
2. The Fund understands Bolivia to be of the view that the respective competencies of
the Global Mechanism and IFAD have not been adequately defined and, specifically,
that what Bolivia refers to as the "administrative competences" between the two
entities and their staff's functions were not clearly identified, or were defined
inaccurately, in the April 1999 Memorandum of Understanding between the Fund
and the Conference of the Parties to the United Nations Convention to Combat
Desertification in Countries Experiencing Serious Drought and/or Desertification, Par
2
ticularly in Africa ("Convention" or "UNCCD").
3. At the same time, Bolivia acknowledges that the Fund and the Global Mechanism
are "separate legal entities" having administrative units working together and that
the status of "host" under the Memorandum of Understanding does not imply a
merger, or union, of these entities, but rather means that the Global Mechanism is
3
supported in its functions by the Fund. In the Fund's view, it is precisely this lack
of a merger that points to clearly defined roles and functions of the respective
entities, which should have been recognised by the International Labour
Organization Administrative Tribunal ("Tribunal" or "ILOAT") in its Judgment No.
2867. By stating that "it should have been known exactly if the GM was subject to
the jurisdiction of the ILOAT, or if that tribunal is fitting up both international
agencies as if they were one," 4 the Fund understands Bolivia to agree with its
position that the Tribunal's. jurisdiction over the Global Mechanism and its staff in
(
fact was not provided for. In any event, the Memorandum of Understanding,
whatever its wording, is not determinative of the question of the identity of the
Complainant's employer, as will be demonstrated below.
Chapter 2. THE ISSUE OF THE EMPLOYER'SIDENTITY
4. The Fund understands Bolivia's principal concern to be that - irrespective of any
differences that may arise regarding the jurisdiction of the Tribunal - labour and
social rights of individuals should be clearly protected and that they should be
1Statement of the Plurinational State of Bolivia, October 2010 (hereinafter "Written Statement of Bolivia").
zIbidpp.2-4.
3Ibidp.4.
4Ibidp.3.
1 provided with assurances and proper legal security, including by clearly identifying
5
their employer.
S. While agreeing with this basic postulate, the Fund wishes to emphasise that in the
present context the central issue of concern is not labour and social rights of any
particular individual, but rather whether the Tribunal acted within the limits of its
statutory competence as defined by IFAD's acceptance of the Tribunal's jurisdiction.
For this purpose, and in particular in answer to Question I before the Court, or part
thereof, it is necessary to establish whether the Complainant was an "official" of the
Fund at the relevant time. In that sense the Fund acknowledges that, where doubts
exist with regard to the identity of the employer, the issue of the Tribunal's
jurisdiction might arise. However, for the reasons set out below, the Fund submits
that there is no reason for any doubt regarding either the labour and social rights of
the Complainant or the identity of her employer. As described in detail in the
Fund's written statement filed with the Court in October 2010, the Tribunal
wrongfully asserted its jurisdiction over the Complainant's case, it applied standards
of review that are not part of the employment conditions of the Complainant, and it
reviewed certain actions of indispensable third parties that were not before it.
6. Moreover, as can be seen from paragraph 27 of the Complaint submitted to the
Tribunal, the Complainant explicitly acknowledged that she was not considered an
IFAD staff member. The Complaint refers to the fact that "while 'FH (IFAD's
Personnel Division) fee!s it can provide administrative support to GM staff it does
not consider them the staff of IFAD"' (emphasis in original); The Fund referred to
this acknowledgment in paragraph 26 of its Reply submitted to the Tribunal and the
Court has also been made aware of it in paragraph 107 of IFAD's written statement.
As will be explained in the following paragraphs, there is a clear legal explanation
behind this situation.
A. Complainant's Admissions
7. First and foremost, bath the Complaint submitted to the Tribunal and the Tribunal's
decision make clear that the Complainant herself recognised that her post was in
the Global Mechanism and not in the Fund. This is evident from her articulation of
the relief requested from the Tribunal. In the Complaint filed with the Tribunal, the
Tribunal was requested to:
"
b. Order the defendant to reinstate the complainant in her post or an
equivalent post in IFAD, ....
116
SJbidp.5,
2 8. The same words are repeated in the Complainant's Rejoinder filed with the Tribunal.
In other words, the Complainant herself juxtaposed the Global Mechariism with the
Fund during the proceeding before the Tribunal, in that she repeatedly requested
,.
two alternative forms ôf relief: (a) reinstatement "in her post," which bath her
appointment and extension letters and her tenure demonstrate was a post in the
Global Mechanism, or (b) "an equivalent post in IFAD." Significantly, the
Complainant did not request, as her primary relief, reinstatement "in her post in
IFAD" and the use of the ward "equivalent" in combination with a reference ta IFAD
in the subsidiary relief requested demonstrates that IFAD was being referred ta as
an entity separate from the one in which she held her post. In this context, it is not
surprising that the Camplainant acknowledged, under the heading "Separate legal
entities" in her Rejoinder filed with the Tribunal, that "[t]he complainant has no
7
reason ta dispute the separateness of IFAD and the Global Mechanism."
9. Equally unsurprising, the Tri,bunal understood the reference ta "her post" in the
Complaint ta mean her post in the Global Mechanism, as is evident from paragraph
18 of Judgment No. 2867:
"Aithough the Joint Appeals Board recommended that the complainant be
reinstated in a post in the Global Mechanism, there is no evidence that her
contract would have · been renewed for the 2008-2009 biennium.
Accordingly, reinstatement will not be ordered."
10. In addition, by invoking the budgetary situation of the Global Mechanism ta contest
the appropriateness, and indeed legality, of her redundancy rather than invoking
IFAD's budgetary situation and resources in the proceedings before the Tribunal,
the Complainant indicated that she properly understood that she was employed by
the Global Mechanism and that her continuation in her post in the Global
Mechanism depended on the needs and financial means of the Global Mechanism
alone. This argument concerning the financial means of the Global Mechanism
would not be relevant if the Camplainant were an IFAD staff member.
11. The Tribunal entertained the Complainant's budget argument in Judgment No. 2867
and faulted the IFAD President for not finding that the Managing Director of the
Global Mechanism had no authority ta abolish the Complainant's post in the Global
Mechanism. 6
12. In the light of the foregoing, the Fund fails ta understand how the Tribunal could
have considered itself competent ta hear the complaint and indicate the relief it
ordered.
6See IFADWritten Statement Volume 1/III149.ra.
7Rejoinder, para. 5.
8ILOAT)udgment No.2867,paras15-17.
3 B. Functions performed
13. The Human Resources Policy adopted by the Fund's Executive Board pursuant to
9
Article 6, Section S(d), of the Agreement Establishing IFAD, defines "staff member
or staff" as "a persan or persans holding a regular, careei-, fixed-term, temporary or
indefinite contract with the Fund." 10 The requirement that there be a contract "with
the Fund" means that by virtue of the contract the individual concerned must be
charged with a function of the Fund and be "subject to the authority of the
President and to assignment to any of the activities of the Fund." 11 Moreover,
"[s]taff shall comply fully with ... such procedure, rules and orders as the President
may promulgate." 12
14. Thus, the principal reason why there should.not be any doubt concerning the proper
identity of the employer in the present case is the actual work performed by the
Complainant. Clearly, if, and only if, the Complainant was charged by the IFAD
President with work for the Fund in addition to work for the Global Mechanism, quod
non, a question might reasonably arise regarding the identity of her actual
13
employer. As explained in the Fund's written statement, throughout her
employment with the Global Mechanism, the Complainant in fact was never charged
by the IFAD President with performing any of the functions of IFAD, nor was she
employed by the Fund or performed functions for the Fund prior or after being
employed by the Global Mechanism; she was never involved in any of the activities
related to either IFAD's lending operations (e.g., as a country programme manager,
regional economist, Joan officer, quality enhancement/assurance officer, project
design, legal officer, etc.), its treasury operations, its administration or its
governance. Throughout her tenure, she was a programme officer in the Global
Mechanism, in which capacity she performed exclusively functions of the Global
Mechanism. This fact by itself should be sufficient to dispel any doubts regarding
the identity of the employer in the instant case. Indeed, the fact that the
complainant in the Bustany case performed his function in his capacity as the
executive head of the organisation concerned - which the Tribunal qualified as the
foremost official - was decisive for his qualification bath as an official within the
meaning of the Tribunal's Statute and a staff member in the sense of the relevant
staff regulations. 14 It can be inferred a contrario from the foregoing that when the
individual concerned has not performed any function of the organisation involved,
he or she does not qualify either as an "official" of that organisation within the
9Article 6, Section 8(d), of the Agreement Establishing IFADprovides in pertinent part: "The President shall organize the
staff and shall appoint and dismiss members of the staff in accordance with regulations adopted by the Executive Board."
10IFADHuman Resources Policy, "Definitions," text in: Dossier submitted to the ICJ,sub VI.,doc. No. (11).
IlIbid., Pa5.1.
12Ibid., Para. 5.2.
13Written Statement of the International Fund for Agricultural 29October2010 ("IFADWritten Statement
Volume 1/111"),pa101.
14JLOAT)udgment No.2232 (2003).
4 meaning of the Tribunal's Statute or as a staff member in the sense of the pertinent
staff regulations.
15. The foregoing establishes why the three cumulative characteristics of an official
defined in the earliest cases dealt with by the Tribunal are not present in the instant
case. In arder to be an "official" for the purpose of the Tribunal's jurisdiction
ratione personae, a complainant must be an individual who (a) has a contractual
relationship with an organisation subject to the Tribunal's jurisdiction and who is
subordinated (b) to the rules and regulations of that organisation and (c) to the
authority of the organisation's executive head. 15 An individual who never
performed any functions of the Fund, who by the terms of his or her appointment in
practice was subordinated only to the Managing Director of the Global Mechanism
6
(as opposed to the IFAD President in his capacity as the President of the Fund)/
17
and who was not ipso iure subject to IFAD's staff regulations, except insofar as
these have been declared applicable mutatis mutandis by the IFAD President,
(
cannat be considered an IFAD "official" within the meaning of Article II, paragraph
6, of the ILOAT Statute. In this respect, "mutatis mutandis" means "[a] li necessary
changes having been made." 18 Because the Complainant was not an IFAD staff
member as defined by IFAD's Executive Board in the Human Resources Policy -
given the fact that she was not appointed to perform services for IFAD and never
performed such services during her tenure with the Global Mechanism - any
application of IFAD staff rules and procedures to her must necessarily be mutatis
mutandis. In other words, ali necessary changes must be deemed to have been
made. According to IFAD's Human Resources Policy, a binding directive for the
IFAD President adopted by IFAD's Executive Board pursuant to Article 6, Section
8(d), of the Agreement Establishing IFAD, "[t]his policy applies t6 ali staff appointed
19
by the President to perform services for IFAD and to consultants." In other words,
this provision contains an inherent exclusion of anyone who is appointed to perform
services other than for IFAD.
16. In this respect, it is important to recall that the ILOAT itself noted in its Judgment
No. 1033, rendered in a case where, similar to the IFAD-Giobal Mechanism
situation, the staff regulations and staff rules of the housing organization had been
declared applicable mutatis mutandis to the staff of the hosted entity, that "even
1sSee ILOATJudgments Nos.11, 61, 323 and 339.
16The initial offer letter dated 1 March 2000 specified that "[t]he positionyou are being offered is that of Programme
Officerin the GlobalMechanismof the Convention to Combat Desertification, Office of the President (OP), in which
capacity you wouldberesponsibleto the ManagingDirectorofthe GlobalMechanism." (Emphasis added). The extension
·letter of 22 March 2002 similarly specified that "[y]our duties and responsibilities will continue to be those of
Programme Manager, LatinAmerica Region P-4,in the GlobalMechanism to Combat Desertification," with the exact same
language being repeated in the extension letter ofS March 2004. Seetext in IFADWritten Statement Volume III/III.
11As previously recalled, acting under Article 6, Section 8(d), of the Agreement Establishing IFAD,the Fund's Executive
Board defined"staff member or staff' as follows in the IFADHuman Resources Policy: "a person or persons holding a
regular, career, fixed-term, temporary or indefinite contract with the Fund." Thus, the implem'enting rules, policies and
procedures adopted by the President in the Human Resources Procedures Manual (HRPM)apply ipsoiureonly to staff so
defined.
1aBlack's LawDictionary,9thed.,p. 1115.
19IFADHuman Resources Policy,"Application" (emphasis added).
5 though the WIPO Staff Regulations and Staff Rules apply to him as an employee of
UPOVhe is not an official of WIPO, and the organisation that does employ him has
20
not recognised the Tribunal's jurisdidion under Article II(5)," so that the Tribunal
was not competent to hear the complaint. Given that the work performed by the
Complainant was Global Mechanism work, and not IFAD work, and given the fact
that she was subordinated to the Managing Director of the Global Mechanism, there
can be no question that her employer was the Global Mechanism, and not IFAD.
Therefore, Bolivia is correct to point out that the Complainant "had a labour relation
with the GM international agency ... .' 121
17. It is further recalled that the letter dated 4 October 1988 from the President of IFAD
to the Director-General of the International Labour Organization states in pertinent
part as follows:
"The Executive Board of the International Fund for Agricultural Development,
at its meeting held from 26 to 28 April 1988, adopted a decision authorising
the President of the Fund to recognise the Jurisdiction of an Administrative
Tribunal over disputes between the Fund and its employees. " 22
18. In other words, the Fund's acceptance of the Tribunal's jurisdiction by its terms was
limited to IFAD employees, who pursuant to IFAD's Human Resources Policy can
only be individuals appointed to positions in which they perform services for IFAD.
In the Complainant's case, both her appointment letters and the actual work
performed by her demonstrate unequivally that she was appointed to, and held, a
position as Programme Officer in the Global Mechanism of the Convention to
Combat Desertification, a position in which she was responsible to the Managing
Director of the Global Mechanism.
19. As IFAD explained in its written statement filed with the Court, the President's
Bulletin No. PB/04/01 dated 21 January 2004 was not adopted pursuant to the
Human Resources Policy and the basis for the President's authority to stipulate to
the matters addressed in that Bulletin is found in Section II.A of the Memorandum
of Understanding in conjunction with Section VI thereof referring to "personnel,
financial, communications and information management services." 23 Only
appointments made pursuant to Article 6, Section 8(d), of the Agreement
Establishing IFAD, as implemented by IFAD's Human Resources Policy, can give rise
to an individual right of redress before the ILOAT. By contrast, appointments made
pursuant to the Memorandum of Understanding between the Fund and the
Conference of the Parties cannat produce that effect. This follows directly from the
terms under which the President was authorised to recognise the jurisdiction of the
2°ILOATJudgrnent No.1033 of26 June 1990 (Consideration 6). See also IFADWritten Statement Volume 1/III,para. 99.
21Written Statement ofBolivia, p..S.
22See IFADWritten Statement Volume Ifiii, para.149 (emphasis added).
23IFADWritten Statement Volu1/IIpara. 248.
6 Tribunal, which, as the above-referenced letter dated 4 October 1988 make clear,
jurisdiction was conferred upon the ILOAT only in respect of "disputes between the
Fund and its employees," and not disputes between the Fund and employees
performing services for entities hosted by the Fund.
c. Distinct mandate
20. The distinct mandate of the Global Mechanism constitutes yet another reason why
there cannot be any doubt regarding the Global Mechanism being the employer of
the Complainant. This follows from the division of responsibilities between the
United Nations and its specialised agencies.
21. In its 1927 opinion in the case concerning Jurisdiction of the European Commission
of the Danube, 24 the Permanent Court of International Justice developed the
doctrine of attributed powers, or "functions" as it chose to cali them at the time.
Shortly thereafter, it applied the doctrine of implied powers to international
organisations in the case concerning Exchange of Greek and Turkish Populations. 25
The Court itself expanded on this notion, namely, in Reparation for Injuries Suffered
in the Service of the United Nations2 and again in Certain Expenses/ 7 in which it
elaborated on the autonomous role ascribed to international organisations. By
introducing the "principle of speciality" in Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, which in the Court's definition meant that international
organisations "are invested by the States which create them with powers, the limits
of which are a function of the common interests whose promotion those States
28
entrust to them," the fundamental principle underlying the powers of international
institutions was identified. As the Court made clear in the latter case, "to ascribe to
the WHO the competence to address the legality of the use of nuclear weapons ...
would be tantamount to disregarding the principle of speciality; for such
competence .could not be deemed a necessary implication of the Constitution of the
29
Organization in the light of the purposes assigned to it by its member States." In
addition, the Court ruled that where specialised agencies (of which the Fund is one)
are involved, the general system created by the United Nations Charter must also
be taken into account. In other words, whatever responsibilities the Fund has been
given, these "cannat encroach on the responsibilities of other parts of the United
30
Nations system." Indeed, the very notion of a specialised agency only makes
31
sense, so the Court suggested, against the background of a division of labour.
24
jurisdictionoftheEuropeanCommissionofthe DanubeAdvisory Opinion, 1927, P.C.I.j.Series B,No. 14.
2sExchangeofGreekand TurkishPopulationsAdvisory Opinion, 1925, P.C.I.j.Series B,No. 10.
26Reparationfor InjuriesSufferedintheServiceofthe UnitedNatAdvisory Opinion, I.C.j.Reports 1949, p. 174.
27CertainExpensesofthe UnitedNations(Article17,paragraph2,oftheCharteAdvisory Opinion, I.C.j.Reports 1962, p.
151.
28Legali(Ifthe UsebyaState ofNuc/earWeaponsinArmedConf/ict ,dvisory Opinion, I.C.j.Reports 1996, p. 66, at 74-
75, para.19.
29Ibid., pp. 78-79, para. 25.
JoIbid., pp. 79-81, para. 26.
31See Rutsel Silvestre j. Martha, 'Mandate Issues in the Activities of the International Fund for Agricultural Development
(IFAD),'6InternationalOrganizationsLawRevie(2009), pp. 447-477.
7 . Consequently, since matters of combating desertification have not been assigned to
the Fund by the Agreement Establishing IFAD, but rather have been entrusted to
the entities created by the United Nations Convention to Combat Desertification in
Countries Experiencing Serious Drought and/or Desertification, Particularly ln Africa,
such matters must lie outside the competence of the Fund.
. 22. As will be recalled, the international community has long recognised that
desertification is a major economie, social and environmental problem of concern t~
multiple countries in ali regions of the world. In 1977, the United Nations
Conference on Desertification ("UNCOD") adopted a Plan of Action to Combat
Desertification("PACD"). Notwithstanding these and other efforts, the United
Nations Environment Programme ("UNEP") haq to conclude in 1991 that the
problem of land degradation in arid, semi-arid and dry sub-humid areas had
intensified, although it identified a few "local examples of success." As a result, the
question of how to tackle desertification was still a major cohcern for the United
((
Nations Conference on Environment and Development ("UNCED"), which was held
in Rio de Janeiro in 1992. The Conference supported a new, integrated approach to
the problem, emphasising action to promote sustainable development at the
community level. It also called on the United Nations General Assembly to establish
an Intergovernmentëil Negotiating Committee ("INCD'') to prepare, by June 1994, a
Convention to Combat Desertification, particularly ih Africa. In Deceniber 1992, the
General Assembly agreed and adopted resolution 47/188. The Convention was
adopted in Paris on 17 June 1994 and opened for signature there on 14-15 October
1994. It entered into force on 26 December 1996, 90 days after the fiftieth
ratification was received. As at August 2009, 193 countries were Parties to the
Convention. The Conference of the Parties, which is the Convention's supreme
governing body, adopted the implementing decision regarding the housing of the
Global Mechanism envisaged by the Convention.
23. It follows from the combination of the principle of speciality and the division of
responsibilities between the entities charged with combating desertification
established under the auspices of the United Nations and the Fund as a UN
specialised agency that there cannot be any doubt regarding the proper identity of
the employing entity in the present case: working to mobilise resources to combat
desertification, which is the Global Mechanism's main purpose, and working to
finance agricultural development in Member States, which is IFAD's main purpose,
are two entirely different things.
D. Distinct needs
24. The distinct needs of the Global Mechanism/Conference of the Parties, on the one
hand, and the Fund, on the other hand, constitute a third reason why there should
be no doubt regarding the proper identity of the employer in the present case.
8 25. It goes without saying that separate entities with distinct mandates have needs of
their own that are determined by their respective functions and operations.
Accordingly, the workforce planning and the attendant budgetary appropriations of
each entity are driven by those functions and operations. This explains why, in
performing recruitment and personnel management services for the Global
Mechanism, the Fund must defer to the expressions of need by the Global
Mechanism. This point was explained by the Fund to the Tribunal in Parts III and
IV(4) of IFAD's Reply and was reiterated in paragraphs 30-31 of the Fund's
Surrejoinder. However, in paragraph 17 of its Judgment No. 2867, the Tribunal
ignores this critical fact by holding that "[b]ecause the Managing Director had no
authority to abolish the complainant's post, his decision not to renew the
complainant's contract on the ground of its abolition constituted an error in law."
The Tribunal further held that "[t]he President of the Fund erred in law in not so
finding when considering her internai appeal." 32 In so holding, the Tribunal
attributed to the Fund powers and responsibilities that cannot be traced back to any
of its functions as a hosting institution. In fact, the Tribunal's ruling amounts to
ascribing to the Fund the power to override decisions of an autonomous treaty body
established by a multilateral environmental agreement. As was explained by the
Office of Legal Affairs of the United Nations Secretariat when responding negatively
to the question whether the UN General Assembly can override the provisions of the
Convention on the Elimination of Ali Forms of Racial Discrimination regarding
meetings of the Committee of the Elimination of Racial Discrimination, "'[t]reaty
organs' must function in accordance with the provisions of treaties which create
them and give them tasks to perform." 33 This means that the Global Mechanism
must function in accordance with the UNCCD and perform its tasks under the
direction of the Conference of the Parties. Hence, notwithstanding the close link
between the Global Mechanism and IFAD resulting from the former's housing by the
latter, as the hosting institution the Fund cannot impose its will on the Global
Mechanism. In a letter to the Counsel for the Complainant dated 5 May 2010, the
Fund's General tounsel explained this in the following terms:
"As I said in the meeting, the abolition of Ms Saez' post by the Global
Mechanism and the consequent non-renewal of her contract in accordance
with the relevant arrangements regarding the hosting of the latter body by
IFAD did not reflect in any way on her abilities or performance." 34
26. A different and incorrect conclusion, to which the Tribunal adhered, would mean
that IFAD, as the housing institution, can substitute its judgment regarding the
workforce needs of the Global Mechanism for that of the executive head of the
3ZILOATJudgment No. 2867, para.17.
33Question whether the Committee on the Elimination of Racial Discisa subsidiary organ of the General
AssemblyMemoradum to the Officer-in-Charge, Department of Services, 17 August 1976, UNJYB1976, pp. 200-201. at
200.
34See Dossier submitted to the ICJ,sub X,doc. no. (17).
9 Global Mechanism, and can impose staff on the latter even if the Managing Director
does not consider such staff to be needed. A close reading of Judgment No. 2867
reveals that the Tribunal seems to have realised the absurdity of the situation and
thus refrained from awarding bath the requested reinstatement of the Complainant
"in her post" with the Global Mechanism and her alternative request to be appointed
35
in "an equivalent post in IFAD." While the Tribunal held in paragraph 18 that
"reinstatement will not be ordered," it found at the same time that "as the abolition
of her post was the only reason ëidvanced for non-renewal of the complainant's
contract ... she is entitled to material damages" and it ordered the Fund to pay
damages equivalent to the salary and other allowances that the Complainant: would
have received from the Global Mechanism.
27. In essence, the Tribunal's ruling means that IFAD is made to pay because the
Global Mechanism no longer needed the services of the Complainant. In the same
way that the Fund cannat impose staff on the Global Mechanism that it does not
need, given that IFAD only needs the personnel required to perform its own
functions, it is logical that the Fund cannat be compelled, either de jure or de facto,
to absorb staff not needed by the Global Mechanism, let alone to pay damages to
non-renewed Global Mechanism staff serving on a fixed-term contract. It is this
logic that underpins the President's Bulletin No. PB/04/01 of 21 January 2004.
According to the rules contained therein, unlike IFAD staff having been seconded to
the Global Mechanism, personnel recruited exclusively to work for the Global
Mechanism, which the original appointment letter and subsequent extensions clearly
demonstrate was the situation in the Complainant's case, 36like other non-staff have
no right to employment in IFAD, without going through a recruitment process for
vacant positions. This explains why the Complainant was not assigned to any
position in IFAD itself after the Global Mechanism did not renew her fixed-term
37
contract pertaining to her position in the Global Mechanism.
E. Distinct governance
28. The distinct governance of the Fund and the Global Mechanism/Conference of the
Parties constitutes yet another reason why there should not be any doubt regarding
the proper identity of the Complainant's employer.
29. Since the early 1970s a considerable number of multilateral agreements have been
concluded in the environmental field which establish a common pattern of
35See ILOATjudgment No. 2867, para. 18 ("Although the joint Appeals Board recommended that the complainant be
reinstated in a·post in the GlobalMechanism,there is no evidence that her. contract would have been renewed (or the
2008-2009 biennium. Accordingly, reinstatement will not be ordered." (Emphasis added)). ln her Complaint, under
"Reliefclaimed," the Complainant requested the Tribunal "to reinstate the complainant in her post or an equivalent post
in IFAD." See Dossier submitted to the ICJ,sub VII,doc. no. (12).
36See footnote 16 above.
37
1nstead of being offered a regular staff position within IFAD,she was offered consultancy positions with IFAD. See
Dossier submitted to the ICJ,sub VII..doc. no. (12), Complainant's Brief.para. 30, and ibid., doc. no. (14), Complainant's
Rejoinder, para. 18.
10 institutionalarrangements. 38 Multilateral environmental agreements establishing
these autonomous institutional arrangements include the Convention on Wetlands
of International Importance, of 1971 (the Ramsar Convention); the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other-Matter, of 1972
(the London Convention); the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, of 1973 (CITES), and the United Nations
Convention to Combat Desertification in Countries Experieocing Serious Drought
and/or Desertification, Particularly in Africa ("Convention" or "UNCCD").
30. The purpose of these arrangements is to develop the normative content of the
regulatory regime established by each agreement and to supervise the contracting
parties' implementation of, and compliance with, that regime. These institutional
arrangements usually comprise a conference or meeting of the parties (COP, MOP)
with decision-making powers, a secretariat, and one or more specialist subsidiary
bodies. Such arrangements, because of their ad hoc nature, are not immediately
recognised as intergovernmental organizations in the traditional sense. On the
other hand, as the creatures of treaties or international agreements, such
conferences and meetings of the parties, with their secretariats and subsidiary
bodies, add up to more than just diplomatie conferences. Because such
arrangements do not constitute traditional intergovernmental organisations and yet
are freestanding and distinct bath from the States parties to a particular agreement
and from existing intergovernmental organisations, they can be described as
"autonomous." They are aIso autonomous in the sense that they have their own
decision-making powers, procedures and compliance mechanisms, i.e., they
39
possess a distinct governance structure.
31. Likewise, in the case of the UNCCD, the Conference of the Parties oversees the
implementation of the Convention. The Conference of the Parties is established by
the Convention as the supreme decision-making body, and it comprises ali ratifying
governments. The Conference of the Parties is responsible for giving strategie
direction to the Global Mechanism and to assess its performance. As regards
strategie direction, the Conference of the Parties adopted a 10-year strategie plan
and framework to enhance the implementation of the Convention ("The Strategy")
in 2007 pursuant to decision 3/COP.S. This decision requests the Global Mechanism
to revise its strategie and operational planning documents, taking a results-based
management approach, to make them consistent with The Strategy, and to present
itsplanned contribution to The Strategy. The Strategy was subsequently translated
3BSee, generally, Barath H. Desai, MultilateralEnvironmental Agreements- LegalStatus of the Secretariats (Cambridge
Universityress, 2010).
39See RobinR. Churchill and Geir Ulfstein, 'Autonomous institutional arrangements in multilateral environmental
agreeements: a little-noticed phenomenonernational law,'94 AmericanjournalofInternationalLaw(2000), p. 623
et seq. See also BhaH.tDesai, 'Mapping the Future of International Environmental Governance,' 13 Yearbookof
InternationalEnvironmentalLaw(2003), pp. 44-61.
11 into the Global Mechanism's four-year work plan and is contained in that
document. 40
32. Similarly, as far as the review of the Global Mechanism's performance is concerned,
in accordance with paragraph 27 of its decision 3/COP.S, the COP requested the
Joint Inspection Unit (JIU) of the United Nations to conduct an assessment of the
Global Mechanism and submit it to COP 9. Specifically, the JIU was tasked with
assessing the following: (1) To evaluate the work and functions of the Global
Mechanism, in accordance with its mandate as set out in the Convention and
relevant decisions of the Conference of the Parties; (2) To identify any lack of
clarity in the institutional arrangements and accountabi/ity set out in the Convention
and in the memorandum of understanding between IFAD and the UNCCD, with a
view to ensuring the effectiveness of the functioning of the Convention bodies; (3)
To assess.the . alignment :.et·~..·:•:'.rog... .. of.th.,Giobal M~-::·ism ..d that .
of the secretariat, and the conformity of the programme of the Global Mechanism to
the guidance of the Conference of the Parties; and (4) To evaluate the
communication and working mcidalities between the Global Mechanism and the
secretariat. Being a United Nations body, acceptance of this assignment was
necessary. Accordingly, the UN General Assembly took note of this request in its
resolution 62/193 of 19 December 2007 and stated that it looked forward to the
findings of JIU. Upon completion of the assessment by the JIU the Conference of
the Parties, at its 2009 session, adopted Decision 6/COP.9 -Joint Inspection Unit
41
report on the assessment of the Global Mechanism, from which it can be clearly
derived that from the perspective of the Conference of the Parties the Global
Mechanism is considered an integral part of the UNCCD.
F. Distinct legal personalities
(i) The issue of the Global Mechanism's legal personality
33. Bolivia is correct to point out that Judgment No. 2867 should be reviewed by the
Court in arder to establish which international organisation should properly be
. . '
sued. 42 The Fund takes ~ot ofethe fact that the Tribunal and, more recently, the
Office of Legal Affairs of the United Nations Secretariat have taken the position that
the Global Mechanism lacks legal personality. In the Fund's view, whatever the
correctness of that position, the alleged lack of legal personality on the part of the
40COMMITTEEFORTHE REVIEWOF THE IMPLEMENTATIONOFTHE CONVENTION,Seventh Session, Istanbul, 3-14
November 2008, Item 3 (b} (ii} of the provisional agenda. The 10-year strategie plan and framework to enhance the
implementation of the Convention Consideration of the work plans of the Convention bodies The multi-year work plan
for the Global Mechanism. The 10-year Strategie plan and framework to enhance the implementation of the Convention,
Note by the GlobalMechanism, Addendum
Consideration of the draft multi-year work plan for the Global Mechanism (2008-2011}, ICCD/CRIC(7}/2/Add.3 27
August 2008, http:/ jwww.unccd.int/copjofficialdocsjjpdfjcric2add3-eng.pdf.
41CONFERENCEOFTHEPARTIES,Report of the Conference of the Parties on its ninth session, held in Buenos Aires from
21 September to 2 October009, Addendum, Part two: Action taken by the Conference of the Parties at its ninth session,
ICCD/COP(9}/18/Add.1, 18 November 2009, http:/ jwww.unccd.int/cop/officialdocsjc/pdf/18add1eng.pdf.
42SeeWritten Statement ofBolivia, p. 5 (bottom}.
12 Global Mechanism does not constitute an obstacle to the identification of the Global
Mechanism as the employer of the Complainant and it certainly does not mean that
the Fund can be held Hable for the conduct of the Global Mechanism vis-à-vis the
Complainant. Before elaborating on this assertion, it is worth recalling that, unlike
domestic legal systems, the international legal order has no prescribed legal and
administrative process of incorporation for international legal persons. 43 Therefore,
an international entity must legitimise its existence, its powers, its independence,
etc., by reference to and through interpretation of its constituent instrument in the
context of general international law and the needs of the international community. 44
As the Court itself indicated in Reparation for Injuries Suffered in the Service of the
United Nations, if an entity is "recognized as having that personality, it is capable of
45
availing itself of obligations." More importantly, in the same opinion the Court
noted that:
"The subjects of law in any legal system are not necessarily identical in their
nature or in the extent of their rights, and their nature depends upon the
needs of the community. Throughout its history, the development of
international law has been influenced by the requirements of international life,
and the progressive increase in the collective activities of States has already
given rise to instances of action upon the international plane by certain entities
which are not States. " 46
34. Indeed, it is the requirements of international life, in particular the need for a
multilateral regulatory approach in the field of the environment, that prompted the
emergence of the "autonomous treaty body," which "possess[es] the trappings of
47
an international organization without actually being one." These treaty bodies
need not have ali the features of the traditional international organisation in order
to function, perform legal acts and incur obligations under international law.
(ii) Legal personality of the Conference of the Parties and legal capacity of the
Global Mechanism distinguished
35. That being said, it should be emphasised that the assertion that the Global
Mechanism Jacks legal personality, even if it were correct, in and of itself does not
lead to the conclusion that IFAD can be held responsible for the conduct of the
Global Mechanism vis-à-vis the Complainant. Rather, the question is whether the
Convention created an actor whose legal personality is engaged by the treaty
bodies established by and under the Convention. For instance, when the United
43See lan Brownlie, Princip/esofPublicInternationalLaw,6th edn (Oxford, Clarendon Press, 2003), p. 648.
44See Rutsel Silvestre). Martha, TheLegalFoundationsofINT(Oxford, Hart Publishing, 2010), pp. 2-3.
45Reparationfor InjuriesSujferedintheServiceof theUnitedNations,Advisory Opinion, I.C.).Reports 1949, p. 174, at 178.
See also james Crawford, TheCreationofStatesinInternationalLaw,2nd edn (Oxford University Press, 2006), p. 29, and
Rutsel Silvestre). Martha, TheLegalFoundationsofINTE(Oxford,Hart Publishing, 2010), pp.137-138.
46Reparationfor InjuriesSujferedintheServiceof theUnitedNations,Advisory Opinion, I.C.J.Reports 1949, p.174, at 178.
47Barath H. Desai, MultilateralEnvironmentalAgreements- LegalStatus ofthe Secretariats(Cambridge University Press,
2010), p. 136. See also IFADWritten Statement Volumelflll, para. 152 and the sources cited therein.
13 Nations Development Programme (UNDP) undertakes legal .acts, including the
conclusion of contracts and other agreements, even when it does so in its own
name, having been established by the General Assembly through its resolutions
1240 (XIII), 1383 (XIV) and 2688 (XXV), in pursuance of Article 22 of the United
Nations Charter, it engages the personality of the United Nations. 48 As explained by
the Office of Legal Affairs of the United Nations Secretariat, within the general
mandate conferred upon it by the resolutions of the General Assembly, the UNDP
enjoys such capacities as may be necessary for the exercise of its functions and the
49
fulfilment of its purposes. The same office explained that, "[w]hile UNDP is a
subsidiary organ of the General Assembly, it has a distinct identity of its own within
the developmental area within which it operates. It has its own Governing Council,
its own budget and its own staff, headed by an Administrator. It indeed enjoys
50
virtual autonomy within its area of operations." Itcan even acquire real estate in
51
the territory of the Member States in its own name. Thus, although the UNDP
does not have legal personality of its own, .it has the capacity to perform legal acts
which engage the legal personality of the organization of which it is an organ.
36. A similar situation exists in respect of the United Nations Institute for Training and
Research (UNITAR), which was established by the UN Seeretary-General pursuant
to General Assembly Resolution 1934(XVIII) of 11 December 1963. Under the
Statute of the UNITAR issued by the Secretary-General, UNITAR is defined as ail
"autonomous institution" within the framework of the United Nations. According to
the Office of Legal Affairs of the United Nations Secretariat, UNITAR has the
authority to enter into contracts and thus has "limited legal capacity, which is drawn
52
on the legal personality of the United Nations," the UNITAR Executive Director has
53
the authority to appoint staff and promote staff, and he has authority in respect of
54
other human resources matters.
37. A similar situation exists also with regard to the United Nations Joint Staff Pension
FLind, which has been described as "a subsidiary organ of the United Nations
established by action of the United Nations General Assembly" 55 and which "has
been established as a subsidiary body of the General Assembly in accordance with
48
LegalStatus of the UNDMemorandum to the Director, Policy Division, Bureau for Programme Policy and Evaluation,
United Nations Development Programme, UNJYB1990, pp. 276-278.
49Question whether the UNDPcould become afounding member of a corporate body under the national law of a Member
State,Memorandum to the Director, Policy Division, Bureau for Programme Policy and Evaluation, United Nations
Development Programme, UNJYB1990, pp. 259-260.
5oRequest for authorization ta use the United Nations name and emblem in an advertisement to be published in the
framework of an information campaign in a Member Letter to a Government official of a Member State, UNJYB1992,
pp.415-417.
5tLegalStatus of the UNDMemorandum to the Director, Division for Administrative and Management Services, United
Nations DevelopmentProgramme, UNJYB1990, pp. 276-277.
52Note to the Assistant Secretary-General, Executive Director of the UNITAR, regarding the autonoUNJYB UNITAR,
2008, pp. 427-434, at 428.
53Ibid., pp. 429-430.
54Jbid.,p. 431-432.
55 lmmunit;y from legal process of the United Nations joint Staff Pension Fund, a subsidiary organ of the United Nations,
under article II. section 2 of the Convention on the Privileges and lmmunities of theLetter to the United
States Mission toe UN,UNJYB1978, p. 186.
14 Article 22 of the Charter of the United Nations and, therefore, ... is an integral part
of the United Nations." 56
38. IFAD sees no reason why the foregoing analysis should not apply to the multilateral
environmental agreements in general, and to the UNCCD in particular. As regards
the secretariats established by these treaties, a recent study describes the legal
situation as follows:
"The advent of MEAs on the international scene has led to the growth of
various kinds of treaty bodies. In general, at the apex level the COP has full
legal capacity. That capacity is in turn passed on, under its authority, to the
secretariat as a treaty body. The said legal capacity of the secretariat is
borne out of sheer functional necessity." 57
39. Applied to the instant case, this implies that since the Global Mechanism is a treaty
body established by the UNCCD,its acts and transactions - such as the contracting
of staff with the assistance of the Fund - must be deemed to draw on the legal
personality of the Conference of the Parties. It is for this reason that international
agreements entered into by the Global Mechanism with third parties do not engage
the Fund-they are not opposable to IFAD. They are not submitted for approval to
the Fund's Executive Board in accordance with Article 8, Section 2, of the
Agreement Establishing IFAD. They are decided upon by the Managing Director of
the Global Mechanism without involvement of the Fund's President or any organ of
the Fund. Thus, contrary to what has been advised by the Office of Legal Affairs of
the United Nations Secretariat in response to a request for legal opinion from the
Joint Inspection Unit concerning the mandate, status and legal capacity of the
Global Mechanism, 58 the ability of the Global Mechanism's Managing Director and
other representatives to enter into such agreements does not in any way depend on
a delegated authority given by IFAD, let alone its President acting in its capacity as
IFAD's chief administrative offer or otherwise, but must be sought in the Convention
and the rules and practices of the Convention and the Conference of the Parties. As
a matter of fact, in the same opinion the Office of Legal Affairs of the United Nations
Secretariat states that "the Global Mechanism and Secretariat are subsidiary bodies
established by the Convention .... [T]he Convention does not entrust the Global
Mechanism with the capacity to enter independently into legally binding
agreements." 59 As the same Office advised in respect of the UNJSPF,the UNDPand
the UNITAR, when a subsidiary body performs legal acts it draws on the legal
56Note to the Secretary-General regarding the Staff Council resolution 42/24 proposing ta hire Counsel and explore the
possibilit;yofbringing a legal action in the UnitedStates of America FederalCourts,UNJYB2007, pp. 395- 397, at 396.
57Barath H.Desai, Multilateral Environmental Agreements- LegalStatus of the Secretariats (Cambridge University Press,
2010), pp. 169-170. For a comprehensive study of the relationship between functional necessity and the legal
personality, capacity and competenceintergovernmental organisations, see Peter H.F.Bekker, The Legal Position of
lntergovernmental Organizations-A Functional Necessit;yAnalysis ofTheir Legal Status and Immunities (Martinus Nijhoff
Publishers, 1994).
5aInteroffice memorandum to the Executive Secretary of the UNCCDSecretariat regarding questions posed by the joint
Inspection Unit, UNJYB2009, pp. 450-453.
59Ibid.,p.452.
15 personality of the body to which it pertains. In this regard, the only relevant
question is whether in entering into such employment contracts - albeit with the
support of the Fund -, the Global Mechanism acts within the limits of its
competence (intra vires) as defined by the Conference of the Parties: This question,
which is not a matter of legal personality, but rather a matter of allocation of
competencies among various organs and bodies of an international entity, albeit not
properly before the Court, must certainly be answered in the affirmative. It
requires an examination of the internai distribution of powers under the UNCCD,but
in any case, it can never lead to the conclusion reached by the Tribunal, which in its
Judgment No. 2867 adopted the view that because the Global Mechanism lacks
_.,.
.··.~;. legal personality its staff are the Fund's staff.Indeed, similar to what was decided
'"~'i th:,.;-XJit.•Naytions Administrative Tribunal in Walter (1986) and in Isaacs
(1988), the proper condù,sion should be that, in the final analysis, Global
Mechanism staff are staff ofhhe entity of which it is a subsidiary body. In the
aforementioned cases the UN Administrative Tribunal ruled that, since UNITAR has
no legal status of its own 60 but is a part of the United Nations, its personnel are
staff members of the United Nations. 61
40. The Fund wishes to draw the Court's attention to paragraph 11 of the above
referenced opinion issued by the UN Office of Legal Affairs.2 In that paragraph, the
Office of Legal Affairs asserts that "[h]aving reviewed the MOU and the COP
decisions," it is "of the view that the Global Mechanism has not been entrusted with
the legal personality [sic] to enter into legally-binding agreements." But the Fund
submits that the text of the Memorandum of Understanding and pertinent COP
decisions point to the opposite conclusion. In Article II.B(b) of the Memorandum of
Understanding, it is expressly stated that the resources of the Global Mechanism
shall include "remuneration to the Global Mechanism for services rendered to a
specifie donor or group of donors." Clearly, in arder to be able to establish the
terms of reference for services to be rendered and the remuneration to be received
by thE!Global Mech~n irseturn for those services, the Global Mechanism should
'.;",Il
be able to enter inttk,the attendant legal agreements. In other words, the
'"''··~:·::i;_
Memorandum of Understanding itself envisages that the Global Mechanism is
endowed with a certain degree of legal capacity. This is not surprising in the light
of paragraph 4(b) of the annex to Decision 24/COP.1 of the Conference of the
Parties, where it is stated that the Global Mechanism shall "[u]ndertake actions
and/or activities, in partnership particularly with developed country Parties, and
relevant institutions,that shall, consistent with the Convention, mobilize and
6"UNITAR has no legal status of its own. It was established at the request of the General Assembly (resolution 1934
(XVIII) of 11 December 1963) by the Secretary-General (Statute of November 1965, amended in 1967). Its Statute
defines it as 'an autonomous institution ... within the framework of the United Nations ...,"' UNATJudgment No. 390,
Walter (1986), consideration Il.
61"In Judgement No. 390, Walter (1986), the Tribunal held that 'UNITARhas no legal status of its own.' It was
established the request of the General Assembly by the Secretary-The Statute defines UNITARas 'an
autonomous institutionwithin the framework of the UN....'. This indicates that UNITARis part of the UNand, hence,
that staff members of UNITARare staff members ofthe UN",UNATJudgment 423, lsaacs (1988), consideration no. III.
62SeeUNJYB2009, pp. 450-453.
16 maximize for the purpose of the Convention adequate and substantial financial
resources, including, as agreed in the Convention, new and additional resources, on
grant or, if necessary, concessional basis, to fund activities under action
programmes of affected developing country Parties, particularly those in Africa, at
ali levels in conformity with the Convention and with the particular conditions of the
regions of relevant regional implementation annexes.' 153
41. In sum, in contrast to the advice given by the UN Office of Legal Affairs, both the
Memorandum of Understanding and the COP decisions in fact presume that the
Global Mechanism has been entrusted with the necessary legal capacity to partner
with States and international organizations to undertake obligations to discharge
services and to be remunerated for those services.
42. The following statement by the Office of Legal Affairs made in the same
memorandum is equally unsupported by the pertinent .legal instruments:
"We understand that the Managing Director of the Global Mechanism
(hereinafter the 'Managing Director'), who in accordance with Section II D of
the MOU is nominated by the Administrator of the UNDP and appointed by
the President of IFAD has certain delegated authority by the President on
administrative issues. Accordingly, in our view, the Managing Director wou/d
be able to enter into a legal/y-binding agreement if this is within the authority
delegated by the President of IFAD to the Managing Director in accordance
with IFAD's ru/es and regulations. '64
43. This statement not only is contrary to the text of the Memorandum of
Understanding and the pertinent COP decisions, it also ignores the fact that, in
accordance with the Agreement Establishing IFAD, the President of IFAD has no
authority to decide on agreements with States and with other international
organizations and thus cannat delegate an authority that he does not have.
Pursuant to Article 8, Section 2, of the Agreement Establishing IFAD, such decisions
are the prerogative of IFAD's Executive Board. Only upon approval by the
Executive Board can the President act in representation of the Fund to sign the
agreement concerned. It will be noted that none of the agreements entered into by
the Global Mechanism has ever been submitted for approval by IFAD's Executive
Board as they are not legal acts of the Fund nor otherwise ·engage the legal
personality of the Fund.
44. The Court is requested to take note of the fact that the F'und'sGeneral Counsel, in a
telephone conversation which took place during the first week of September 2009,
had advised the legal officer in the UN Office of Legal Affairs responsible for
63
See Dossier submitted to the ICJ,sub V,doc. (4), Decision24/COP.lof the Conferenceof the withiesof the UNCCD
respectta theorganizationta housethe GlobalMechanismandagreementonitsmodalities.
64UNJYB2009, pp. 450-453 (emphasis added).
17 preparing the above-referenced memorandum concerning the mandate, status and
legal capacity of the Global Mechanism of the Fund's views regarding the
relationship between the Fund and the Global Mechanism. The Fund's General
Counsel summarised those views as follows in an e-mail dated 21 September 2009
addressed ta the same legal officer and attaching the text of the Fund's Response
submitted in the proceeding resulting in Judgment No. 2867 (incorporating the
Fund's position regarding that relationship):
"
Concerning the capcity [sic] of GM ta enter into agreements with other
entities, our view can be summarized as follows
This capacity is not deterimined [sic] by IFAD but must be deemed ta derive
from the UNCCDand general international law principles. The GM enters into
agreements in its own name and these agreements are signed by the
Managing Director. This is the practicetha ~as been followed and sorne UN
bodies, particularly the UNDP, have previously entered into severa! such
agreements with the GM. We rec;ognizethat the Convention does not clearly
state that the GM has legal identity, but that is only one aspect of the issue.
As a matter of general international law, If States wish an international body
ta be endowed specifically with legal personality, this will appear in the
constituent treaty and be determinative of the issUe. But this actually occurs
in only a minority of cases. However, personality on the international plan,
or rather the capacity ta enter into (certain) contractual arrangements under
international law, may be inferred from the powers or purposes of the body
concerned and its practice. This is the more usual situation and one
authoritatively discussed and settled(at least as far as the UN was concerned
directly) by the Reparation for Injuries case. A case in point is the Charter of
the United Nations, which does not explicitly state that the UN has legal
identity, and neither does the General Assembly resolution creating the
UNDP. Thus the practice has been that as far as IFAD is concerned, the GM
has the authority ta enter into agreements of this type under its own name,
and the Managing Director is the persan with the authority ta
sign the agreements.
"
45. The Fund notes, with great regret, that its view, which it had explicitly been invited
to express bath orally and in writing, evidently was ignored by the UN Office of
Legal Affairs in finalising its memorandum concerning the mandate, status and legal
capacity of the Global Mechanism.
46. Notwithstanding the compelling arguments set out above, in confirming its
jurisdiction beyond the consent given by IFAD, the Tribunal, instead of drawing the
18 logical conclusion that the legal personality of the Fund was not involved, chose to
negate the status of the Global Mechanism as an autonomous treaty body under the
UNCCDby describing it as follows:
"The fact that the Global Mechanism is an integral part of the Convention and
is accountable to the Conference [of the Parties] does not necessitate the
conclusion that it has its own legal identity. Rather, and as the term 'Global
Mechanism' suggests, it merely indicates that it is the nominated mechanism
by which the Conference gives effect to certain obligations created by the
Convention. Nor does the stipulation in the MOUthat the Global Mechanism is
to have a 'separate identity' indicate that it has a separate legal identity or,
more precisely for present purposes, that it has separate legal personality. In
this fast regard, the difference may conveniently be illustrated by reference
to a distinct trade name under which a person or corporation carries on
business. The trade name frequently constitutes 'the identity' or, perhaps,
one of 'the identities' of the person or corporation concerned, but it is the
person or corporation that has legal personality for the purposes of suing and
being sued. It is in this context that the statement that the Global Mechanism
65
is to be 'an organic part of the structure of the Fund' is to be construed."
47. It is clear that the fast sentence in the above excerpt simply.does not flow from the
analysis that precedes it within the same paragraph. If anything, that analysis
points unequivocally and exclusively towards the Conference of the Parties as the
embodiment of the legal personality established by the UNCCD. There is in this
regard absolutely no difference between the situation of the UNJSPF, UNDP and
UNITAR under the UN Charter and that of the Global Mechanism under the UNCCD.
So why could the obvious conclusion not be drawn by the Tribunal? By resorting
only to the text of Section II.A. of the Memorandum of Understanding in the above
excerpt, the Tribunal ignored the fact that the Memorandum of Understanding
merely implements Decision 24/COP.1, which was adopted by the Conference of the
Parties under Article 21 of the Convention. Article 21, paragraph 1, of the
Convention provides that the "Conference of the Parties shall promote the
availabilityof financial mechanisms and shall encourage such mechanisms to seek
to maximize the availability of funding for affected developing country Parties,
particularly thosein Africa, to implement the Convention." Accordingly, in order to
increase the effectiveness and efficiency of existing financial mechanisms, a Global
Mechanism to promote actions leading to the mobilisation and channeling of
substantial financial resources, including for the transfer of technology, on a grant
basis, and/or on concessional or other terms, to affected developing country
Parties, was established by Article 21, paragraph 4, of the Convention. The same
provision states clearly that "[t]his Global Mechanism shall function under the
GsILOATJudgment No. 2867, consideration 6.
19 authority and guidance of the Conference of the Parties and be accountable ta it."
According ta Article 21, paragraph 5, of the Convention, "[t]he Conference of the
Parties shall identify, at its first ordinary session, an organization ta house the
Global Mechanism." Finally, Article 21, paragraph 6, of the Convention stipulates
that "[t]he Conference of the Parties shall, at its first session, make appropriate
arrangements with the organization it has identified ta house the Global Mechanism
for the administrative operations of such Mechanism, drawing ta the extent possible
on existing budgetary and human resources." Clearly, being an arrangement
pursuant ta Article 21, paragraph 6, of the Convention, the Memorandum of
Understanding cannat be construed ta mean that the Global Mechanism has become
an integral part of the housing institution. Therefore, the principal function of
Section II.A. of the Memorandum of Understanding is ta underscore that within the
housing institution, the' Global Mechanism's status as an autonomous treaty body
under the Convention shall be respected and preserved.
48. The correçt conclusion must be that, irrespective of the housing arrangement, the
Global Mechanism remains an integral part of the institutional framework set up by
the Convention and thus - similar ta the UNDP, UNJSPFand UNITAR in respect of
the United Nations - it partakes in the legal personality established by the
Convention of which the Conference of the Parties is a body. As the Tribunal's own
jurisprudence confirms, in particular Judgment No. '1033 (1990) where it declined
jurisdiction ta entertain complaints of UNOV staff that was assimilated with WIPO
staff, as the Complainant was employed by a body that had not recognized the
Tribunal's jurisdictionher complaint should have been dismissed by the Tribunal.
G. Conclusion
49. For the reasons stated above, the Fund submits that there is no ground whatsoever
for any doubt regarding identifying the Global Mechanism as the employer of the
Camplainant.
Chapter 3. LEGAL MEANING OF THE TERM "HOUSING" IN THE PRESENT
CONTEXT
50. Bolivia's written statement also raises the question of the meaning ta be assigned
ta the terms "ta house" and "housing" in the Memorandum of Understanding
between the Fund and the Conference of the Parties ta the UNCCD. Compared ta a
body such as the Global Mechanism, the practice relating ta multilateral
environmental agreements displays a pattern that assists in identifying the
functions of the institutions hosting the secretariats set up by these treatiesIt has
been pointed out that:
"[i]n general, ali of the secretariats are expected ta make arrangements for
and provide services ta meetings of the COP and the subsidiary bodies.
20 Similarly, other important roles that the secretariat (or the host institution
acting as secretariat for the convention) is required to play include providing
assistance to the parties in the implementation of the convention, preparing
necessary reports as required by the parties, ensuring necessary coordination
with other international bodies, and putting into place the necessary
administrative and contractual arrangements for effective discharge of its
functions. "6
51. The situation is different in respect of the Global Mechanism, which is not a
secretariat in the aforementioned sense - for it exists along with the UNCCD
Secretariat located in Bonn - but rather a resource mobilisation vehicle. By
emphasising the need to delineate the functions of the Fund and the Conference of
the Parties, Bolivia appears to suggest that ambiguities exist in respect of the
meaning of those terms in the present context as it relates to the particular nature
of the Global Mechanism. However, given the ordinary meaning to be given to the
terms "to house" and "housing" in their context and iri light of their object and
purpose, the Fund respectfully submits that there should be no uncertainty in this
regard.
A. Interpretation
52. It is recalled that the Conference of the Parties was required, pursuant to Article 21,
paragraphs 5 and 6, of the Convention, to identify at its first ordinary session an
organisation "to house" the Global Mechanism established under Article 21,
paragraph 4, of the Convention. Acting under Article 21, paragraphs 5 and 6, of the
Convention, in paragraph 1 of its decision 24/COP.1, adopted at its first session, the
Conference of the Parties selected the Fund to house the Global Mechanism. By
paragraph 1 of Resolution 108/XXI ("Housing the Global Mechanism of the United
Nations Convention to Combat Desertification"), the Fund's Governing Council
decided that IFAD shall accept the decision of the Conference of the Parties to
house the Global Mechanism of the UNCCD. Accordingly, a Memorandum of
Understanding was concluded between the Fund and the Conference of the Parties,
which states in Section I that:
"In carrying out its mandate, under the authority and guidance of the
Conference, the Global Mechanism will, in accordance with paragraph 2 of
decision 24/COP.1 of the Conference, perform the functions described in the
annex of that decision. As the housing institution, the Fund will support the
Global Mechanism in performing these functions in the framework of the
mandate and policies of the Fund."
66Barath H.Desai, Multilateral Environmental Agreements- Legal Status of the Secretariats (Cambridge University Press,
2010),p124.
21 53. The wording of this provision leaves no doubt about the fact that the Global
Mechanism was to perform its own functions as defined by its progenitor, whereas
IFAD would support the Global Mechanism in its (i.e., the Global Mechanism's)
functions by providing housing facilities. While the term "to house" is not a legal
term of art in international law, as it is employed in a transitive sense, it intends to
convey the same meaning as employed in ordinary language, i.e., to serve as
shelter. In this sense, as the "housing institution" the Fund is expected to provide
accommodation to the Global Mechanism. The housing institution does not legally
absorb and become one with the hosted entity. In fact, the very use of the terms
"to house" and "housing" intends to convey the notion that there is no transfer of
functions of the treaty body to another entity or organisation, in this case the Fund.
54. Section II.A of the Memorandum of Understanding states explicitly that "the Global
Mechanism will have a separate identity within the Fund." While in hindsight it
would have been clearer, from a drafting viewpoint, if the words "in relation to the
Fund" had been used after "separate identity" instead of the words "within the
Fund," if the Memorandum of Understanding were in need of interpretation, as "an
international agreement governed by international law and concluded in written
form" 67 between international organizations, or between a group of States and an
international organization, the Memorandum of Understanding's interpretation
would be informed by the applicable rules embodied in the 1969 Vienna Convention
· on the Law of Treaties ("1969 Vienna Convention") 68 and/or the 1986 Vienna
Convention on the Law of Treaties between States and International Organizations
or between International Organizations ("1986 Convention").
55. In cases of treaty interpretation, it is the well-established practice of the ICJ to
resort to rules of interpretation set forth in the 1969 Vienna Convention. Article 31
of the Vienna Convention, which is identical to Article 31 of the 1986 Convention,
·provides in pertinent part:
"1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shaHcomprise,
in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which has been made between ali the
parties in connection with the conclusion of the treaty;
671986 Vienna Convention on the Law ofTreaties between States and International Organizations or between
International Organizations, Art 2(1)(a)(ii), done at Vienna on 21 March 1986, notyet in force.
68Vienna Convention on the Law ofTreaties, done at Vienna on 23 May 1969, entry into force on 27january 1980,
U.N.T.S.vol. 1155, p. 331.
22 (b) Any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by the other parties as an
in.strument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between
the parties."
56. As the Court has explained with regard to this provision:
"A treaty must be interpreted in good faith, in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose. Interpretation must be based above ali upon the
text of the treaty. As a supplementary measure recourse may be had to
means of interpretation such as the preparatory work of the treaty." 69
In other words, as one commentator has pointed out, "the natural and ordinary
meaning must be given to words 'in the context in which they occur' and not in the
abstract" and "it is not a narrow and quasi-literai interpretation of words, phrases or
articles, taken in isolation, that is envisaged, but one related to the [document to
be interpreted] as a whole." 70
57. In this case, the ordinary meaning to be given to the words "housing" in Section I of
the Memorandum of Understanding and "separate identity within the Fund" in
Section II.A thereof viewed in the context of the Memorandum of Understanding
and in the light of the object and purpose of the Memorandum of Understanding,
i.e., a document entered into with a view to arranging the modalities and
administrative operations of the Global Mechanism "within IFAD" as "the
71
organization to house the Global Mechanism," must be that the Global Mechanism
72
does not form part of IFAD. There is no subsequent agreement or practice that
suggests otherwise. As a matter of fact, the creation and functioning of the "Global
Mechanism Advisory Group" at IFAD proves this point. As the President's Bulletin of
21 January 2004 announced:
69Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.Reports 1994, p. 6, at 21-22, para. 41; see also
KasikilijSedudu Island (BotswanafNamibia), Judgment, I.C.J.Reports 1999, p. 1045, at 1060, para. 20.
7
°C.F.Amerasinghe, Princip/es of the Institutional Law ofInternational Organizations, 2•ded. (Cambridge University Press,
2005), p. 44 (citing Competence of the GeneralAssembly for the Admission of a State to the United Nations, Advisory
Opinion, I.C.J.Reports 1950, p. 4, at 8).
71Memorandum of Understanding, Preamble.
n Cf.Judgment No.2867, para. 7.
23 "3. To strengthen further the relationship between IFAD and the Global
Mechanism, a Global Mechanism Advisory Group is established, chaired by the
Assistant President (PMD), with representatives from EC, ER,NALO, FC, FH
and PT as weil as the Managing Director of the Global Mechanism or his/her
representative as an observer. The secretariat of the Global Methanism
Advisory Group shall be placed in PMD. The Global Mechanism Advisory Group
shall be responsible for ali aspects of collaboration between IFAD and the
Global Mechanism and its chair shall report to and advise, the President on GM
matters. "73
58. The above excerpt from the Presidential Bulletin makes it clear that the Fund and
the Global Mechanism were always regarded as two separate legal entities. The
composition of the Advisory Group reflects this separate identity of the Fund and
the Global Mechanism: while it is composed of IFAD departmental units established
by the IFAD President himself, which units have full membership status in the
Advisory Group, the participation of the Managing Director is in an observatory
capacity. Moreover, the stated mandate of the Global Mechanism Advisory Group is
to advise the President on ali aspects of "collaboration between the Fund and the
Global Mechanism," i.e., collaboration between two separate entities.
59. The words "within the Fund" in Section II.A must be interpreted in conjunction with
the Memorandum of Understanding's Preamble, which identifies the Conference of
the Parties as the body responsible for the Global Mechanism and the counterparty
of IFAD under the Memorandum of Understanding for purposes of housing the
Global Mechanism.
60. If there were any ambiguity regarding the meaning of the words "to house" in the
Preamble of the Memorandum of Understanding or the words "housing" or "the
Global Mechanism will have a separate identity within the Fund" in Sections I and
II.A of the Memorandum of Understanding, or if their interpretation would lead to
the "manifestly absurd" result that the Global Mechanism is not legally separate
from IFAD, 74 common Article 32 of the 1969 and 1986 Conventions, entitled
"Supplementary means of interpretation," would point to "the preparatory work" of
the Memorandum of Understanding and "the circumstances of its conclusion" to
confirm or determine their meaning. These supplementary means of interpretation
ali point to the conclusion that the Global Mechanism and IFAD are separate and
cannot be assimilated for any purpose/ 5 The offer document, which may be viewed
n See Dossier submitted to the IC),sub V,doc. no. (8).
74
It makes no sense for the Conference of the Parties to enter into an arrangement (the Memorandum of Understanding)
with an external "organization to house the GlobalMechanism" (i.e., IFAD)if the Global Mechanism is not separate from
IFAD. If the Global Mechanism were "part of the Fund" (ILOAT)udgment No. 2867, para. 7), there would have been no
need for a Memorandum ofUnderstanding between the Conference ofthe Parties and IFAD.
75In its decision selecting IFADto house the GlobalMechanism, the Conference of the Parties requested the Permanent
Secretariat of the Convention and IFADin developing the Memorandum of Understanding "to take fully into account ...
the following:" "(a) the separate identity of the Global Mechanism within the housing organization .... " Decision
24/COP.l. doc. ICCD/COP(l)/11/Adp.68.
24 as the preparatory work of the Memorandum of Understanding, in particular
confirms this conclusion. 76
61. By effectively denying effect to the words "the Global Mechanism will have a
separate identity within the Fund" in Section II.A of the Memorandum of
Understanding, the Tribunal violated the principle of effectiveness that is part of the
corpus of international institutional law. Ithas been explained in the literature that
the principle of effectiveness includes the following two aspects:
"The first embraces the rule that ali provisions of a treaty must be supposed to
have been intended to have significance and. be necessary to convey the
intended meaning so that an interpretation which reduces sorne part of the
text to the status of a pleonasm or mere surplusage is prima facie not
acceptable - 'la règle de l'effet utile'. The second covers the rule that the
instrument as a whole, and each of its provisions, must be taken to have
been intended to achieve sorne end and that an interpretation which would
make the text ineffective to achieve the object in view is prima facie suspect
-'la règle de l'efficacité."7
62. As has been summarised by an investment tribunal comprising former ICJ Pres.ident
Stephen Schwebel as a member:
"It is a cardinal rule of the interpretation of treaties that each and
every operative clause of a treaty is to be interpreted as meaningful
rather than meaningless. It is equally weil established in the
jurisprudence of international law, particularly that of the Permanent
Court of International Justice and the International Court of Justice,
that treaties, and hence their clauses, are to be interpreted so as to
78
render them effective rather than ineffective."
63. By its key finding, based on provisions of the Memorandum of Understanding
(including Section III.A), that "the Global Mechanism is to be assimilated to the
various administrative units of the Fund for administrative purposes" and that the
"effect of this is that administrative decisions taken by the Managing Director in
relation to staff in the Global Mechanism are, in law, decisions of the Fund," 79 the
Tribunal gave an interpretation to the words "to house," "housing" and "the Global
Mechanism will have a separate identity within the Fund" contained in the
Memorandum of Understanding that made the pertinent text ineffective in the
76See doc. ICCD/COP(1)/5, "Global Mechanism: Compilation of Revised Offers of International Fund for Agricultural
Development (IFAD)and United Nations Development Programme (UNDP)"(25 June 1997), especially pp. 20-23.
n C.F.Amerasinghe, Princip/esof the lnstitutionalLawofInternationalOrganizations,2•ded. (Cambridge University Press,
2005), p. 45.
1aEurokoB.V.v.RepublicofPo/and,Partial Award of 19 August 2005, par(L.Yves Fortier, President; Stephen M.
Schwebel, jerzy Rajski,arbitrators).
79ILOATjudgment No.2867, para. 7.
25 context of the Memorandum of Understanding. In the process, it also made the
text of Article 21, paragraph 4, of the Convention ineffective.
B. Substance
64. The above is underscored .by Sections II and III of the Memorandum of
Understanding, which expressly assert that:
a. The Global Mechanism shall have its owri resources separate from those
of the housing institution (Section II.B);
b. The housing institution shall administer those funds in the same way
that it administers third party supplementary funds (trust funds)
(Section II.C);
c. The executive head of the Global Mechanism shall be appointed upon
the nomination of the Administrator of the UNDP(Section II.D);
d. The Global Mechanism shall function under the authority of the
Conference of the Parties and be fully accountable to the said
Conference (Section III.A); and
e. The Global Mechanism shall report to the Conference of the Parties
(Section III.B).
65. Sections II and III of the Memorandum of Understanding make clear that the Fund
provides an array of services to the Global Mechanism, which together constitute
the "housing" of the Global Mechanism by the Fund. These services include:
a. Providing offices and officefacilities;
b. Serving as recruitment agency for the Global Mechanism and to
administer the staff on behalf of the Global Mechanism;
c. Authorising the personnel of the Global Mechanism to share in the
privileges and immunities that the Fund's own staff members enjoy
under the relevant international instruments, including through annual
notifications pursuant to Article VI, Section 18, of the Convention on the
Privileges and Immunities of the Specialized Agencies, according to
which "[e]ach specialized agency will specify the categories of officiais
to which the provisions of this article and of article VIII shal/ apply"
(emphasis added) -but inclusion of an individual employed by a housed
entity on this list submitted by the housing organisation does not
necessarily mean that such persan belongs to the category of "members
26 of the staff" of IFAD within the meaning of Article 6, Section 8(d), of the
Agreement Establishing IFAD);
d. Declaring certain of the staff rules, regulations and policies applicable to
the personnel of the Global Mechanism (Doc. PB/04/01);
e. Administering the financial resources of the Global Mechanism (Doc. PB
No. 99/10); and
f. Permitting the IFAD President to act as agent of the Conference of the
Parties as determined in the Memorandum of Understanding. The IFAD
President's functions under the Memorandum of Understanding are to
be compared to the role assumed by the President of the International
Court of Justice under various treaties and agreements that charge him
or her with the responsibility to appoint arbitrators failing the
appointment by parties to arbitration agreements/conipromissory
clauses. Such appointment actions do not engage the personality, let
alone the responsibility, of the Court or of the United Nations. Likewise,
actions by the IFAD President pursuant to the Memorandum of
Understanding do not engage the personality of IFAD.
c. Conclusion
66. Based on the foregoing, the Fund submits that the suggested ambiguity
identified in the written statement of Bolivia is not present in the
circumstances. The situation is perfectly clear: the Global Mechanism, and
not IFAD, was the employer of the Complainant at the relevant time.
Chapter 4. SUMMARY OF CONCLUSIONS AND REQUEST
67. For the reasons stated above, IFAD submits that it is clear that the Fund and
the Global Mechanism are separate legal entities and that, by explicitly
rejecting this legal point - which the Tribunal itself defined as a jurisdictional
question 80 and the Complainant has acknowledged before this Court as
constituting the first of "two principal rulings on its jurisdiction" 81 -, and by
denying effect to the Memorandum of Understanding between the Fund and
the Conference of the Parties, especially Sections I and II.A thereof, the
Tribunal's decision is open to challenge under Article XII of the ILOAT Statute,
a position which IFAD understands Bolivia to agree with, where Bolivia states
that "[w]ith regard to critical failures that could have [been] committed [by]
the ILOAT in its judgment, they should be reviewed in arder to establish
which ... international organization [is] subject to be sued ...." (emphasis
aoSee ILOATJudgment No.2867, para. 5, first sentence: "The argument with respect to the Tribunal'sjurisdiction is based
in the main, on the proposition[t]he Fund and the Global Mechanism are separatelegalentities."'(Emphasis added).
a1Complainant's Statement of29 October 2010, para. 3.
27 ' 82
added). In this respect, the Fund wishes to draw the Court's attention to
the equally critical failures reflected in the ILOAT's Judgment No. 2420, where
the Tribunal entertained three pleas involving the review of the validity of a
UN General Assembly resolution notwithstanding the fact that the United
83
Nations has never recognised the jurisdiction of the Tribunal. In the instant
case, neither the Conference of the Parties nor the Global Mechanism has ever
recognised the ILOAT's jurisdiction.
68. Accordingly, as stated in paragraph 3 of IFAD's written statement submitted
to the Court, the Fund seeks the Court's confirmation that Judgment No. 2867
is not in conformity with the 1988 agreement between the lLO and IFAD and
must be declared invalid on the grounds set forth in the aforementioned
statement and as further elaborated in these written comments.
69. For the reasons set out in its written statement, as supplemented by these
written comments, the Fund respectfully requests the Court ta find that
Question I must be answered in the negative, that Questions II through VIII
must be answered in the affirmative, and that Question IX must be answered
in such a way as ta render Judgment No. 2867 invalid.
March 2011
General Counsel, Representative of
the International Fund for Agricultural Development ·
8zWritten Statement of Bolivia, p. S.
83See IFADWritten Statement, Volume III/III, Document F,especially Considerations 13-17.
28
Written Comments of the International Fund for Agricultural Development