DISSENTING OPINION OF JUDGE MOROZOV

I voted against the decision to comply with the request for an advisory
opinion and also in the negative on both Question I and Question II
in the operative part of the Advisory Opinion of the Court, and [ am
unable to support the reasoning in the Opinion.

The basic grounds for my position are the following.

1. I believe that the Court has no competence to give the advisory
opinion which has been requested by the Committee on Applications for
Review of Administrative Tribunal Judgements in implementation of
Article 11 of the Statute of the Tribunal, this being the first such request
almost /8 years after the Statute was amended by General Assembly
resolution 957 (X) of 8 November 1955,

In this connection I can only say that if the procedure established for
the so-called review of the judgements of the Tribunal were really judicial,
in accordance with the Court’s Advisory Opinion of 13 July 1954, the
review body concerned, but not the International Court of Justice, would
be in a position to give a proper judgment on the specific case of Judgement
No. 158 of the Tribunal.

2. Article 65, paragraph 1, of the Statute of the Court provides that
“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”.

It is indisputable that the Statute imposed no duty on the Court auto-
matically to accept any kind of request for advisory opinion. The Court
should only give effect to a request for an advisory opinion, and deliver
such an opinion, strictly in accordance with the provisions of the Charter
and the Statute of the Court and in particular in accordance with Articles
34 and 65 of its Statute and Article 96 of the Charter.

The present request for advisory opinion contravenes the principles of
the Charter and the Statute of the Court.

It is for the General Assembly to adopt whatever resolutions it sees
fit, and I do not intend to involve the Court in any revision of resolution
957 (X) adopted by the General Assembly; for this is in no way a function
of the Court.

But at the same time the competence of the Court itself and its function
must be based, not upon this or that resolution adopted by the General
Assembly, but on the Charter of the United Nations and the Statute of the
Court, which forms an integral part of the Charter.

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297 APPLICATION FOR REVIEW (DISS. OP. MOROZOV)

3. Contrary tothe conclusion of the majority of the Court, the procedure
which has now been imposed on the Court is not a judicial one.

To my mind, the Advisory Opinion makes use of a number of
unconvincing arguments in order to justify the procedure referred to
as a normal judicial procedure for review of United Nations Adminis-
trative Tribunal Judgements; and points of great importance have not
been taken into account.

For example, the main argument of the Opinion is that review of
United Nations Administrative Judgements in contentious casses between
United Nations officials and the Secretary-General could become subject
to review by the International Court of Justice, not in the form of a
continuation, at least to some extent, of the contentious procedure but in
the form of advisory procedure. This unusual procedure was devised 18
years ago and it is quite clear that the above-mentioned procedure could
be regarded as intended to conceal the fact that private persons (United
Nations officials) had been given the right to request the review of a
judgement, and to become parties before the International Court of
Justice, contrary to the provisions of Article 34 of the Court’s Statute,
which lays down that “only States may be parties in cases before the
Court”.

But nothing can cover up the fact that, albeit by means of so-called
advisory procedure, private persons become parties to the proceedings
before the Court. These persons can initiate the procedure of appeal
against the judgement of the Administrative Tribunal, have a right to
present to the Court statements and evidence of any kind, and have a
right to make an oral statement before the Court if the Court decides to
hold oral proceedings.

Such limitations of these rights as result from the activity of the
Committee on'Applications and from the restricted character of the reasons
which may be the grounds of an appeal (failure to exercise jurisdiction or
fundamental error in the procedure) make no difference in principle, but
are merely directed against the interests of the United Nations officials;
this last point will be examined further below.

Now it is necessary to recall that the question of the competence of the
International Court of Justice was settled by the United Nations Confer-
ence on International Organization in very clear terms, which are reflected
in Article 34 of the Statute of the Court. It is well known that one of the
delegations suggested at that time that Article 34 of the Statute be
redrafted to include provision that not only States but also private persons
could be permitted to be parties before the Court in cases of review by it
of the judgments of administrative tribunals connected with the United
Nations when such a right of appeal was provided by the statutes of such
tribunals.

That suggestion was rejected by the Conference (United Nations
Conference on International Organization, Documents, Vol. 13, p. 482).

4. But what situation arose at the 1955 session of the General Assembly,
when the procedure for review of the judgements of the United Nations

135
298 APPLICATION FOR REVIEW (DISS. OP. MOROZOV)

Administrative Tribunal was adopted contrary to the decision of the
United Nations Conference on International Organization?

To answer this question it is necessary to turn our attention to the
Advisory Opinion of the Court of 13 July 1954 and the travaux prépara-
toires of the amendment of Article 11 of the Statute of the Administrative
Tribunal of the United Nations.

In 1954 the Court, in answer to the question put by the General
Assembly, stated that:

“Should the General Assembly contemplate, for dealing with
future disputes, the making of some provision for the review of the
awards of the Tribunal, the Court is of opinion that the General
Assembly itself, in view of its composition and functions, could
hardly act as a judicial organ—considering the arguments of the
parties, appraising the evidence produced by them, establishing the
facts and declaring the law applicable to them—all the more so as
one party to the disputes is the United Nations Organization itself.”
(Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal, Advisory Opinion of 13 July 1954, LC.J.
Reports 1954, at p. 56.)

But what did happen in 1955? The General Assembly created, allegedly
on the basis of Article 22 of the Charter, a subsidiary organ—the Com-
mittee on Applications for Review of Administrative Tribunal Judge-
ments, and authorized it to request advisory opinions of the Court in
cases in which the Committee found a substantial basis for the application
made to it, including applications from private persons, from the United
Nations Secretary-General and from member States. It is quite clear that,
to take such a decision, the Committee should consider the merits of the
relevant judgement of the Administrative Tribunal.

In the light of the above-cited Opinion of the Court, the General
Assembly created a ‘“subsidiary” organ authorized to implement a
function which the General Assembly should not, according to the Opinion
of the Court, itself exercise.

But Article 22 of the Charter permits the General Assembly to “establish
such subsidiary organs as it deems necessary for the performance of
its functions” (emphasis added).

Therefore according to the above-mentioned view expressed by the
Court in 1954, which I share completely, the Committee created in 1955
cannot be considered as an organ of the United Nations within
the meaning of Articles 7 and 22 of the Charter and therefore this
Committee has no right to ask for advisory opinions of the Court in
accordance with Article 96, paragraph 2, of the Charter.

There is additional evidence that this Committee could not request
opinions of the Court, because any organ of the United Nations other
than the General Assembly and the Security Council may be authorized

136
299 APPLICATION FOR REVIEW (DISS. OP. MOROZOV)

to do so only “on legal questions arising within the scope of their
activities” (Art. 96, para. 2, of the Charter). But the Committee (which is
not a permanent organ of the United Nations) has requested an advisory
opinion not in the scope of its own activities but in the scope of the
activities of another body—the United Nations Administrative Tribunal.

5. It is suggested in the present Advisory Opinion that the activity
mentioned above could be explained on the basis of Article 101 of the
Charter.

I should like to recall that Article 101 provides: ‘The staff shall be
appointed by the Secretary-General under regulations established by
the General Assembly.” But as the Court said in 1954, the Charter
“does not confer judicial functions on the General Assembly” and that
when it established the Administrative Tribunal it ‘‘was not delegating
performance of its own functions” (1.C.J. Reports 1954, p. 61).

These observations of the Court stressed the judicial nature of the
activity of the United Nations Administrative Tribunal, and can be
correctly interpreted in the sense that any procedure for reviewing the
judicial decisions of that Tribunal should be a judicial one.

6. From the very outset the adoption of the procedure which has now
been approved by the majority of the Court was inspired by considerations
other than the interests of United Nations officials.

The Secretary-General, as well as the representative of the United
Nations Staff Committee, objected to the proposed review procedure.

The discussions in the Fifth Committee and the plenary meetings of
the General Assembly in 1955 showed very important divergences of
views, which touched upon the Charter and the Statute of the Court.

In the Fifth Committee 30 out of the 57 delegations did not support the
amendments to Article 11 of the Statute of the Tribunal. In the plenary
meetings of the General Assembly 26 out of 59 delegations did not support
these amendments.

It may also be useful at this point to indicate some important conse-
quences of the procedure which the Court has approved.

As has already been observed, that procedure is not a judicial one.
In addition to the evidence of this mentioned above, I should like to
stress the following.

Paragraph 3 of Article 11 of the Statute of the Administrative Tribunal
authorizes the Secretary-General to give effect to the opinion of the
Court. This means that if the opinion of the Court is contrary to the
judgement of the Tribunal, and the Secretary-General is in agreement
with the opinion, he can de jure and de facto nullify the judgement of the
Tribunal, despite the fact that the Secretary-General is only one of the
parties in the case.

7. Reference was made in the Advisory Opinion to the Opinion of the

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300 APPLICATION FOR REVIEW (DISS. OP. MOROZOV)

Court in the Unesco case; and the fact that the Governing Body of the
ILO has been authorized by the International Labour Conference to seek
the advisory opinion of the Court with regard to judgments delivered by
the ILO Administrative Tribunal has been used as an analogy for the
procedure accepted by the Court in the present case. But it is necessary
to stress that the Governing Body of the ILO (like the governing bodies
of some other specialized agencies) is the executive committee of the
ILO, whereas the Committee on Applications it not an executive
committee of the United Nations, nor is its composition comparable with
that of the ILO Governing Body.

A further important point is that the right to initiate the procedure for
review of the judgments of the ILO Tribunal does not belong to private
persons or to any State, but to the Governing Body itseif alone.

I do not intend to analyse all the other ways in which the provisions
of the Statute of the ILO Tribunal concerning the question of review of
judgments of the Tribunal differ from those concerning the United Nations
Administrative Tribunal. There is a well-known divergence of views upon
that matter; and [ have mentioned the main differences only in order to
show that there is no room for any analogy of the kind mentioned above.

(Signed) Platon Morozov.

138


                            COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                     IMMUNITÉS ET PROCÉDURES PÉNALES
                          (GUINÉE ÉQUATORIALE c. FRANCE)

                          ORDONNANCE DU 1er JUILLET 2016

                                   2016
                            INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                   IMMUNITIES AND CRIMINAL PROCEEDINGS
                          (EQUATORIAL GUINEA v. FRANCE)

                                ORDER OF 1 JULY 2016

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                                           Mode officiel de citation :
                         Immunités et procédures pénales (Guinée équatoriale c. France),
                           ordonnance du 1er juillet 2016, C.I.J. Recueil 2016, p. 246

                                                Official citation :
                       Immunities and Criminal Proceedings (Equatorial Guinea v. France),
                                Order of 1 July 2016, I.C.J. Reports 2016, p. 246

                                                                                1100
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157295-7

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                                                  1er JUILLET 2016

                                                  ORDONNANCE

                     IMMUNITÉS ET PROCÉDURES PÉNALES
                      (GUINÉE ÉQUATORIALE c. FRANCE)

                   IMMUNITIES AND CRIMINAL PROCEEDINGS
                      (EQUATORIAL GUINEA v. FRANCE)

                                                   1 JULY 2016

                                                       ORDER

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                                                                                246

                                 INTERNATIONAL COURT OF JUSTICE

                                                  YEAR 2016
                                                                                2016
                                                                                1 July
                                                  1 July 2016                                   General List
                                                                                No. 163

                    IMMUNITIES AND CRIMINAL PROCEEDINGS
                                   (EQUATORIAL GUINEA v. FRANCE)

                                                    ORDER

                    Present:
                             Vice‑President Yusuf, Acting President; President Abraham;
                             Judges Owada, Tomka, Cançado Trindade, Greenwood,
                             Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
                             Crawford, Gevorgian; Registrar Couvreur.

                      The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 48 of the Statute of the Court and to Arti-
                    cles 31, 32, 44, 45, paragraph 1, 48 and 49 of the Rules of Court,
                       Having regard to the Application filed in the Registry of the Court on
                    13 June 2016, whereby the Republic of Equatorial Guinea instituted pro-
                    ceedings against the French Republic with regard to a dispute concerning
                    “the immunity from criminal jurisdiction of the Second Vice‑President of
                    the Republic of Equatorial Guinea in charge of Defence and State Secu-
                    rity [Mr. Teodoro Nguema Obiang Mangue], and the legal status of the
                    building which houses the Embassy of Equatorial Guinea in France, both
                    as premises of the diplomatic mission and as State property”;

                      Whereas a signed copy of the Application was communicated to France
                    on the day it was filed;
                      Whereas Equatorial Guinea has appointed H.E. Mr. Carmelo Nvono

                                                                                4

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                            immunities and criminal proceedings (order 1 VII 16)            247

                    Nca as Agent; and whereas France has appointed Mr. François Alabrune
                    as Agent;
                       Whereas, at a meeting held by the Vice‑President of the Court with the
                    Agents of the Parties on 29 June 2016, the Agent of Equatorial Guinea
                    indicated that his Government wished to have at its disposal a period of
                    six months from the date of the present Order for the preparation of its
                    Memorial; and whereas the Agent of France indicated that his Govern-
                    ment would agree to a period of six months for the preparation of its
                    Counter‑Memorial;
                       Taking into account the agreement of the Parties,

                      Fixes the following time‑limits for the filing of the written pleadings:

                      3 January 2017 for the Memorial of the Republic of Equatorial Guinea;
                    and
                      3 July 2017 for the Counter‑Memorial of the French Republic;
                      Reserves the subsequent procedure for further decision.

                       Done in French and in English, the French text being authoritative, at
                    the Peace Palace, The Hague, this first day of July, two thousand and
                    sixteen, in three copies, one of which will be placed in the archives of the
                    Court and the others transmitted to the Government of the Republic of
                    Equatorial Guinea and the Government of the French Republic, respec-
                    tively.

                                                       (Signed) Abdulqawi Ahmed Yusuf,
                                                                     Vice‑President.
                                                            (Signed) Philippe Couvreur,
                                                                          Registrar.

                                                                                5

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