COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

JUGEMENTS DU TRIBUNAL ADMINISTRATIF DE

L'ORGANISATION INTERNATIONALE DU TRAVAIL

SUR REQUETES CONTRE L’ORGANISATION DES

NATIONS UNIES POUR L’EDUCATION, LA SCIENCE
ET LA CULTURE

AVIS CONSULTATIF DU 23 OCTOBRE 1956

1956

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

JUDGMENTS OF THE ADMINISTRATIVE
TRIBUNAL OF THE INTERNATIONAL LABOUR
ORGANISATION UPON COMPLAINTS MADE
AGAINST THE UNITED NATIONS EDUCATIONAL,
SCIENTIFIC AND CULTURAL ORGANIZATION

ADVISORY OPINION OF OCTOBER 23rd, 1956
Le présent avis doit étre cité comme suit :

« Jugements du Tribunal administratif de l'O. I. T. sur requêtes
contre l'U. N.E.S.C.O., Avis consultatif du 23 octobre 1956 :
C. I. J. Recueil 1956, p. 77.»

This Opinion should be cited as follows :

“* Judgments of the Administrative Tribunal of the I.L.O. upon
complaints made against the U.N.E.S.C.O., Advisory Opinion of
October 23rd, 1956: I.C.J. Reports 1956, p. 77.”

N° de vente : 156
Sales number

77

INTERNATIONAL COURT OF JUSTICE

1956
YEAR 1956 October 23rd
General List:
No. 30

October 23rd, 1956

JUDGMENTS OF THE ADMINISTRATIVE
TRIBUNAL OF THE INTERNATIONAL LABOUR
ORGANISATION UPON COMPLAINTS MADE
AGAINST THE UNITED NATIONS EDUCATIONAL,
SCIENTIFIC AND CULTURAL ORGANIZATION

Request for Advisory Opinion.—Challenge by the Executive Board
of Unesco of judgments of the Administrative Tribunal of the Inter-
national Labour Organisation.— Binding character attributed to the
Opinion of the Court.— Equality of Parties in judicial proceedings.—
Transmission through Unesco of observations from the officials con-
cerned.—Absence of Oval Proceedings.— Decision of the Court to
comply with Request for Advisory Opinion.

Juvisdiction of the Administrative Tribunal to hear complaints alleg-
ing non-obseyvance of terms of appointment and of provisions of the
Staff Regulations.—Non-renewal of fixed-term appointments.—Ad-
ministrative Memorandum of July 6th, 1954.— Method of determining
the jurisdiction of the Administrative Tribunal.

Request for Opinion limited to consideration of the jurisdiction of the
Administrative Tribunal.— Distinction between a vequest for Advisory
Opinion submitted on the basis of Article XIT of the Statute of the Admin-
istrative Tribunal and a request for Advisory Opinion submitted under
the more general power conferred on Unesco.

ADVISORY OPINION

Present: President HACKWORTH ; Vice-President BADAW1; Judges
BASDEVANT, WINIARSKI, ZORICIC, KLAESTAD, READ,
ARMAND-UGoN, KoJEVNIKOV, Sir Muhammad ZAFRULLA
Kuan, Sir Hersch LAUTERPACHT, MORENO QUINTANA,
CôRDOVA ; Registrar LOpEz OLIVAN.
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 78

In the matter of Judgments Nos. 17, 18, Ig and 21 of the Admin-
istrative Tribunal of the International Labour Organisation upon
complaints made against the United Nations Educational, Scientific
and Cultural Organization by Messrs. Duberg and Leff and Mrs.
Wilcox and Mrs. Bernstein,

THE Court,
composed as above,

gives the following Advisory Opinion :

By a letter of November 30th, 1955, filed in the Registry on
December 2nd, the Director-General of the United Nations Educa-
tional, Scientific and Cultural Organization informed the Court that,
by a Resolution dated November 18th, 1955, the Executive Board
of that Organization, acting within the framework of Article XII of
the Statute of the Administrative Tribunal of the International
Labour Organisation, had decided to challenge the decisions rendered
by the Tribunal on April 26th, 1955, in the Leff, Duberg and Wilcox
cases, and on October 29th, 1955, in the Bernstein case, and to refer
the question of their validity to the Court ; and that, accordingly,
the Executive Board, by a Resolution dated November 25th, 1955,
a certified true copy of which the Director-General appended to his
letter, had decided to request the International Court of Justice to
give an advisory opinion on a number of questions set out in the
afore-mentioned Resolution, which is in the following terms :

“The Executive Board,

Whereas, by its Judgments Nos. 17, 18 and 19 of 26 April 1955,
and No. 21 of 29 October 1955, the Administrative Tribunal of the
International Labour Organisation confirmed its jurisdiction in the
complaints introduced by Messrs. Duberg and Leff and Mrs. Wilcox
and Mrs. Bernstein against the United Nations Educational, Scien-
tific and Cultural Organization,

Whereas Article XII of the Statute of the Administrative Tribunal
of the International Labour Organisation provides as follows :

‘rt. In any case in which the Executive Board of an inter-
national organization which has made the declaration specified
in Article II, paragraph 5, of the Statute of the Tribunal chal-
lenges a decision of the Tribunal confirming its jurisdiction, or
considers that a decision of the Tribunal is vitiated by a funda-
mental fault in the procedure followed, the question of the
validity of the decision given by the Tribunal shall be submitted
by the Executive Board concerned, for an advisory opinion,
to the International Court of Justice.

2. The opinion given by the Court shall be binding.’

Whereas the Executive Board, after consideration, wishes to avail
itself of the provisions of the said Article,

5
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 79

Decides to submit the following legal questions to the Inter-
national Court of Justice for an advisory opinion :
Having regard to the Statute of the Administrative Tribunal of
the International Labour Organisation ;
Having regard to the Staff Regulations and Staff Rules of the
United Nations Educational, Scientific and Cultural Organi-
zation, and to any other relevant texts ;

Having regard to the contracts of appointment of Messrs. Duberg
and Leff and Mrs. Wilcox and Mrs. Bernstein :

I.—Was the Administrative Tribunal competent, under Article II
of its Statute, to hear the complaints introduced against the
United Nations Educational, Scientific and Cultural Organi-
zation on 5 February 1955 by Messrs. Duberg and Leff and
Mrs. Wilcox, and on 28 June 1955 by Mrs. Bernstein ?

I[.—In the case of an affirmative answer to question I:

(a) Was the Administrative Tribunal competent to determine
whether the power of the Director-General not to renew fixed-
term appointments has been exercised for the good of the
service and in the interest of the Organization ?

(b) Was the Administrative Tribunal competent to pronounce
on the attitude which the Director-General, under the terms of
the Constitution of the United Nations Educational, Scientific
and Cultural Organization, ought to maintain in his relations
with a Member State, particularly as regards the execution
of the policy of the Government authorities of that Member
State?

IlJ.—-In any case, what is the validity of the decisions given by
the Administrative Tribunal in its Judgments Nos. 17, 18,
rg and 21 ?”

In accordance with Article 66, paragraph 1, of the Statute of the
Court, notice of the Request for an Advisory Opinion was given on
December 8th, 1955, to all States entitled to appear before the
Court : a copy of the letter of the Director-General with the resolu-
tion appended thereto was transmitted to those States.

The President of the Court considered that those States Members
of the United Nations Educational, Scientific and Cultural Organi-
zation which were entitled to appear before the Court, the Interna-
tional Labour Organisation as well as the international organiza-
tions which had recognized the jurisdiction of the Administrative
Tribunal of the International Labour Organisation, namely, the
World Health Organization, the International Telecommunication
Union, the United Nations Educational, Scientific and Cultural
Organization, the World Meteorological Organization, the Food and
Agriculture Organization of the United Nations and the European
Organization for Nuclear Research were likely to be able to furnish
information on the questions referred to the Court. Accordingly, the

6
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 80

Registrar, in pursuance of Article 66, paragraph 2, of the Statute,
notified these States and Organizations that the Court would be
prepared to receive written statements from them within a time-
limit fixed by an Order of December 5th, 1955, at April 30th,
1956.

Within this time-limit, the United Nations Educational, Scientific
and Cultural Organization, which had previously transmitted to
the Court the documents likely to throw light upon the question,
together with an introductory note, submitted'a written statement
with an appendix containing the observations and information
formulated by Counsel acting on behalf of the persons in whose
favour Judgments Nos. 17, 18, 19 and 21 of the Administrative
Tribunal of the International Labour Organisation were given.
Written statements were also submitted on behalf of the Govern-
ments of the United States of America, of the French Republic, of
the United Kingdom of Great Britain and Northern Ireland, and of
the Republic of China.

These written statements were communicated to States and Organ-
izations to whom the communication provided for in Article 66,
paragraph 2, of the Statute had been addressed. At the same time
these States and Organizations were informed that the Court did not
contemplate holding public hearings in the present case but that it
had decided to permit them to submit in writing their comments on
the written statements at any time prior to July Ist, 1956.

Within this time-limit the Legal Adviser of the United Nations
Educational, Scientific and Cultural Organization sent to the
Registry a letter dated June 20th, 1956, in which, referring to certain
aspects of the jurisdictional issue before the Court, he stated the
reasons why the Organization did not intend to avail itself of the
opportunity to submit further arguments to the Court. It also trans-
mitted to the Registry supplementary observations formulated on
behalf of the persons in whose favour Judgments 17, 18, 19 and 21
were given.

In the present Opinion, the United Nations Educational, Scientific
and Cultural Organization will be referred to as Unesco, and the
Administrative Tribunal of the International Labour Organisation
will be referred to as the Administrative Tribunal.

%
* *

The Resolution of November 25th, 1955, by which the Executive
Board of Unesco requested an Advisory Opinion of the Court, relies
on Article XII of the Statute of the Administrative Tribunal which
as cited in the Resolution and as applicable to Unesco reads :

“zy, In any case in which the Executive Board of an international
organization which has made the declaration specified in Article IT,
paragraph 5, of the Statute of the Tribunal challenges a decision of
the Tribunal confirming its jurisdiction, or considers that a decision

7
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 81

of the Tribunal is vitiated by a fundamental fault in the procedure
followed, the question of the validity of the decision given by the
Tribunal shall be submitted by the Executive Board concerned,
for an advisory opinion, to the International Court of Justice.

2. The opinion given by the Court shall be binding.”

Paragraph 5 of Article II, to-which reference is made in Arti-
cle XII, reads:

“5. The Tribunal shall also be competent to hear complaints
alleging non-observance, in substance or in form, of the terms of
appointment of officials and of provisions of the Staff Regulations
of any other intergovernmental international organisation approved
by the Governing Body which has addressed to the Director-
General a declaration recognising, in accordance with its Constitu-
tion or internal administrative rules, the jurisdiction of the Tribunal
for this purpose, as well as its Rules of Procedure.”

Furthermore, Article II, paragraph 7, reads :

“7, Any dispute as to the competence of the Tribunal shall be.
decided by it, subject to the provisions of Article XII.”

Unesco recognised the jurisdiction of the Administrative Tribunal
by making the declaration provided for in Article II, paragraph 5,
of the Statute of the Tribunal.

Relying on Article XII quoted above, the Resolution of the
Executive Board challenged Judgments Nos. 17, 18 and 19 given on
April 26th, 1955, in the matter of the complaints of Mr. Peter
Duberg, Mr. David Leff and Mrs. Wilcox, and Judgment No. 21
given on October 29th, 1955, in the matter of the complaint of
Mrs. Bernstein.

The facts underlying the complaints were essentially the same in
all four cases and it is therefore sufficient to state them by reference
to one of the cases decided by the Tribunal, namely, that of
Mr. Peter Duberg (Judgment No. 17).

Duberg obtained a fixed-term appointment with Unesco on
June 22nd, 1949. That appointment, subsequently renewed, was
due to expire on December 31st, 1954. In February 1953 Duberg
received from the representative of the United States to Unesco a
questionnaire to be completed and returned in pursuance of an
Executive Order of the President of the United States of January oth,
1953, prescribing procedures for making available to the Secretary-
General of the United Nations certain information concerning
United States citizens employed or being considered for employ-
ment on the Secretariat of the United Nations. By virtue of Part 3
of that Order, its provisions were made applicable to Unesco. The
complainant did not answer the questionnaire. In February 1954
the complainant received a questionnaire from the International
Organizations Employees Loyalty Board of the United States Civil

8
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 82

Service Commission set up by Executive Order. He did not reply to
the questionnaire. In June 1954 he received an invitation to appear
before the Loyalty Board at the ‘United States Embassy in Paris.
On July 13th, 1954, the complainant informed the Director-General
of Unesco of his decision to refuse to appear before the Board and
of the reasons of conscience which caused him to take that decision.
Previously, on July 6th, 1954, the Director-General had issued an
Administrative Memorandum on the subject of the renewal of
appointments expiring at the end of 1954. In that Memorandum the
Director-General had stated that “he has decided that all profes-
sional Staff members whose contracts expire between now and
June 30th, 1955 (inclusive), and who have achieved the required
standards of efficiency, competence and integrity and whose services
are needed, will be offered one-year renewals of their appointments’.
By a letter dated August 13th, 1954, the Director-General informed
Duberg that he would not offer him a new appointment on the
expiry of his contract. This letter stated, 2nter alia, as follows :

‘. In the light of what I believe to be your duty to the Organiza-
tion, I have considered very carefully your reasons for not appearing
before the International [Organizations] Employees Loyalty Board
where you would have had an opportunity of dispelling suspicions
and disproving allegations which may exist regarding you.

It is with a deep sense of my responsibilities that I have come
to the conclusion that I cannot accept your conduct as being consist-
ent with the high standards of integrity which are required of
those employed by the Organization.

I have, therefore, to my regret, to inform you that I shall not
offer you a further appointment when your present appointment
expires...”

Following an unsuccessful application to the Director-General to
reconsider his decision, Duberg submitted an appeal to the Unesco
Appeals Board, asking that the decision of the Director-General be
rescinded, On November 2nd, 1954, the Appeals Board, by a major-
ity, expressed the opinion that the decision should be rescinded.
On November 25th, 1954, the Director-General informed the Chair-
man of the Appeals Board that he was unable to act in accordance
with its opinion. On February 5th, 1955, Duberg brought his com-
plaint before the Administrative Tribunal.

In its Judgment of April 26th, 1955, the Administrative Tribunal
declared itself competent to entertain the complaint. It gave the
following reasons for its decision :

“ON COMPETENCE

Considering that the character of a fixed-term appointment is
in no way that of a probationary appointment, that is to say of a
trial appointment ;

9
ADM. TRIBUNAL OF LL.O. (OPINION OF 23 X 56) 83

That while it is the case that Unesco Staff Rule 104.6 issued in
application of the Staff Regulations stipulates that: ‘A fixed-term
appointment shall expire, without notice or indemnity, upon
completion of the fixed term...’, this text only deals with the dura-
tion of the appointment and in no way bars the Tribunal from
being seized of a complaint requesting the examination of the
validity of the positive or negative decision taken regarding the
renewal of the said appointment ;

That it is established in the case that the Director-General, by a
general measure of which the whole staff was informed on 6 July 1954,
‘decided that all professional staff members whose contracts expire
between now and 30 June 1955 (inclusive) and who have achieved
the required standards of efficiency, competence and integrity and
whose services are needed, will be offered one-year renewals of their
appointments’ ;

That the complainant, having been made the object of an excep-
tion to this general measure, holds that the Director-General could
not legitimately thus make an exception of him on the sole ground
which he invoked against him as justification for the view that he
did not possess the quality of integrity recognised in those of his
colleagues whose contracts had been renewed, and in the absence of
any contestation of his qualities of competence and efficiency ;

That the complainant requests that this decision be rescinded and,
alternatively, that an indemnity be granted ;

Considering that the question is thus a dispute concerning the
interpretation and application of the Staff Regulations and Rules
of the defendant Organisation ;

That by virtue of Article II, paragraph 1, of its Statute, the
Tribunal is competent to hear the said dispute ;”

After having declared itself competent, the Tribunal gave a
decision on the merits of the complaint. The Court is not called
upon to express an opinion on that part of the Judgment.

It appears from the terms of the Resolution requesting an
opinion and the citation, contained therein, of Article XII of the
Statute of the Administrative Tribunal that the challenge raised
against the four Judgments, and the Request for an Advisory
Opinion related thereto, refer to the jurisdiction of the Admin-
istrative Tribunal and to the validity of the Judgments. The
challenge and the Request for an Opinion do not refer to an
allegation that these Judgments are vitiated by a fundamental
fault in the procedure followed.

*
* *

In formulating the Request for an Advisory Opinion, the
Executive Board exercised a power conferred upon Unesco by
Article XI of the Agreement between that Organization and
the United Nations, approved by the General Assembly on

10
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 84

December 14th, 1946. The General Conference, by its amendment
of Article V of the Constitution of November 16th, 1945, by which
Unesco was brought into being, authorised the Executive Board
to exercise that power between sessions of the General Conference.

The Court will consider at the outset whether it should comply
with the Request for an Opinion.

The question put to the Court is a legal question. It arose
within the scope of the activities of Unesco when the Executive
Board had to examine the measures to be taken as a result of
the four Judgments. The answer given to it will affect the result
of the challenge raised by the Executive Board with regard to
these Judgments. In submitting the Request for an Opinion the
Executive Board was seeking a clarification of the legal aspect
of a matter with which it was dealing.

Under Article XII of the Statute of the Administrative Tribunal,
the Opinion thus requested will be ‘‘binding’’. Such effect of the
Opinion goes beyond the scope attributed by the Charter and by
the Statute of the Court to an Advisory Opinion. However, the
provision in question is nothing but a rule of conduct for the
Executive Board, a rule determining the action to be taken by
it on the Opinion of the Court. It in no wise affects the way in
which the Court functions; that continues to be determined by
its Statute and its Rules. Nor does it affect the reasoning by
which the Court forms its Opinion or the content of the Opinion
itself. Accordingly, the fact that the Opinion of the Court is
accepted as binding provides no reason why the Request for an
Opinion should not be complied with.

The Court is a judicial body and, in the exercise of its advisory
functions, it is bound to remain faithful to the requirements of
its judicial character. Is that possible in the present case ?

The four Judgments referred to in the Request for an Opinion
are, under Article VI, paragraph 1, of the Statute of the Tribunal,
“final and without appeal’. However, Article XII, paragraph 1,
of the Statute, in so far as it was relied upon by Unesco, confers
upon the Executive Board the right to challenge “‘a decision of
the Tribunal confirming its jurisdiction” and provides that the
Executive Board shall submit its challenge to the Court by means
of a Request for an Advisory Opinion. The Executive Board has
availed itself of that right.

The advisory procedure thus brought into being appears as
serving, in a way, the object of an appeal against the four Judg-
ments, seeing that the Court is expressly invited to pronounce,
in its Opinion, which will be “binding”, upon the validity of
these Judgments.

Article XII of the Statute of the Administrative Tribunal was
designed to provide that certain challenges relating to the validity
of Judgments rendered by the Tribunal in proceedings between
an official and the international organization concerned should

it
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 85

be brought before the Court and decided by it. However, under
Article 34, paragraph 1, of the Statute of the Court ‘‘only States
may be parties in cases before the Court”. In Article XII it was
squght to avoid this difficulty while nevertheless securing an
examination by and a decision of the Court by means of a Request,
emanating from the Executive Board, for an Advisory Opinion.
To the Executive Board—and to it alone—was given the right
of challenging a Judgment of the Administrative Tribunal. The
special feature of this procedure is that advisory proceedings
take the place of contentious proceedings which would not be
possible under the Statute of the Court.

The Court is not called upon to consider the merits of such a
procedure or the reasons which led to its adoption. It must consider
only the question whether its Statute and its judicial character
do or do not stand in the way of its participating in this procedure
by complying with the Request for an Advisory Opinion.

According to generally accepted practice, legal remedies against
a judgment are equally open to either party. In this respect each
possesses equal rights for the submission of its case to the tribunal
called upon to examine the matter. This concept of the equality
of parties to judicial proceedings finds, in a different sphere, an
expression in Article 35, paragraph 2, of the Statute of the Court
which, when providing that the Security Council shall lay down
the conditions under which the Court shall be open to States
not parties to the Statute, adds ‘but in no case shall such con-
ditions place the parties in a position of inequality before the
Court”. However, the advisory proceedings which have been
instituted in the present case involve a certain absence of equality
between Unesco and the officials both in the origin and in the
progress of those proceedings.

In the first place, in challenging the four Judgments and
applying to the Court, the Executive Board availed itself of a
legal remedy which was open to it alone. Officials have no such
remedy against the Judgments of the Administrative Tribunal.
Notwithstanding its limited scope, Article XIT of the Statute of
the Administrative Tribunal in this respect confers an exclusive
right on the Executive Board.

However, the inequality thus stated does not in fact constitute
an inequality before the Court. It is antecedent to the examination
of the question by the Court. It does not affect the manner in
which the Court undertakes that examination. Also, in the present
case, that absence of equality between the parties to the Judg-
ments is somewhat nominal since the officials were successful in
the proceedings before the Administrative Tribunal and there
was accordingly no question of any complaint on their part. This
being so, it is not necessary for the Court to express an opinion
upon the legal merits of Article XII of the Statute of the Admin-
istrative Tribunal. The Court must confine itself to the facts of the

12
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 86

present case. In this respect, it is enough for it to state that the
circumstance that only the Executive Board was entitled to
institute the present proceedings does not constitute a reason for
not complying with the Request for an Advisory Opinion.

The question of equality between Unesco and the officials
arises once more in connexion with the actual procedure before
the Court. Here the absence of equality flows not from any provision
of the Statute of the Administrative Tribunal but from the provisions
of the Statute of the Court. In the form of advisory proceedings,
the Court has before it a challenge the result of which will affect
the right of the officials to the benefit of the Judgments of the
Tribunal and the obligation of Unesco to comply with them.
The judicial character of the Court requires that both sides
directly affected by these proceedings should be in a position to
submit their views and their arguments to the Court.

In the case of Unesco, the Statute and the Rules of Court
constitute no obstacle in this respect. Indeed, they make available
to it the necessary facilities. In the case of the officials, the
position is different.

It was with that difficulty that the Court was confronted. The
difficulty was met, on the one hand, by the procedure under which
the observations of the officials were made available to the Court
through the intermediary of Unesco and, on the other hand, by
dispensing with oral proceedings. The Court is not bound for the
future by any consent which it gave or decisions which it made with
regard to the procedure thus adopted. In the present case, the
procedure which has been adopted has not given rise to any
objection on the part of those concerned. It has been consented
to by counsel for the officials in whose favour the Judgments were
given. The principle of equality of the parties follows from the
requirements of good administration of justice. These requirements
have not been impaired in the present case by the circumstance that
the written statement on behalf of the officials was submitted
through Unesco. Finally, although no oral proceedings were held,
the Court is satisfied that adequate information has been made
available to it. In view of this there would appear to be no compel-
ling reason why the Court should not lend its assistance in the solu-
tion of a problem confronting a specialized agency of the United
Nations authorized to ask for an Advisory Opinion of the Court.
Notwithstanding the permissive character of Article 65 of the
Statute in the matter of advisory opinions, only compelling reasons
could cause the Court to adopt in this matter a negative attitude
which would imperil the working of the régime established by the
Statute of the Administrative Tribunal for the judicial protection
of officials. Any seeming or nominal absence of equality ought
not to be allowed to obscure or to defeat that primary object.

13
TRIBUNAL ADM. DE L'O.I.T. (AVIS DU 23 X 56) 87

In the light of what has been said above and of the circumstances
of the present case, the Court considers that it ought to comply
with the Request for an Opinion.

*
* *#

The first question put to the Court is in the following terms:

“T.— Was the Administrative Tribunal competent, under Article IT
ofits Statute, to hear the complaints intfoduced against the United
Nations Educational, Scientific and Cultural Organization on
5 February 1955 by Messrs. Duberg and Leff and Mrs. Wilcox, and
on 28 June 1955 by Mrs. Bernstein ?”

The Court is here invited to pass upon the competence of the
Administrative Tribunal. Article XII of the Statute of that
Tribunal on which the Request is based shows that what is
involved is the decision of the Tribunal confirming its jurisdiction,
that is, the operative part of its Judgment on this point. The
Court is not confined to an examination of the grounds of decision
expressly invoked by the Tribunal ; it must reach its decision on
grounds which it considers decisive with regard to the jurisdiction
of the Tribunal.

The words ‘‘competent to hear” used in the Request for an
Opinion mean that the question is one of determining whether the
Administrative Tribunal was legally qualified to examine the
complaints submitted to it and to adjudicate on the merits of
the claims set out therein. The circumstance that the Tribunal
may have rightly or wrongly adjudicated on the merits or that
it may have rightly or wrongly interpreted and applied the law
for the purposes of determining the merits, in no way affects its
jurisdiction. The latter is to be judged in the light of the answer
to the question whether the complaint was one the merits of which
fell to be determined by the Administrative Tribunal in accordance
with the provisions governing its jurisdiction. That distinction
between jurisdiction and merits is of great importance in the legal
régime of the Administrative Tribunal. Any mistakes which it may
make with regard to its jurisdiction are capable of being corrected
by the Court on a Request for an Advisory Opinion emanating from
the Executive Board. Errors of fact or of law on the part of the
Administrative Tribunal in its Judgments on the merits cannot
give rise to that procedure. The only provision which refers to its
decisions on the merits is Article V1 of the Statute of the Tribunal
which provides that its judgments shall be “final and without
appeal”.

Before the Administrative Tribunal the officials concerned
complained of the refusal to renew their fixed-term contracts, a

14
ADM. TRIBUNAL OF L.L.O. (OPINION OF 23 X 56) 88

refusal which they encountered in the circumstances as recalled.
They challenged before the Appeals Board the argument that the
holder of a fixed-term contract had no right to the renewal of
his contract. They alleged that, on the contrary, they had an
acquired right to the renewal of ‘their contracts. In doing so they
relied, apart from general considerations relating to the inter-
national civil service and the practice of international organizations,
on the position taken with regard to the renewal of fixed-term
contracts by the Director-General in the Administrative Memo-
randum of July 6th, 1954, and on a document submitted by him
to the General Conference which refers, in this connexion, to
Staff Regulation 4.5.1. Their position, on this point, before the
Administrative Tribunal appears clearly when it is borne in mind
that they had been successful before the Appeals Board and
that the latter, on this point, had given as a reason for its opinion
the meaning which it attached to Staff Regulation 4 and to Staff
Rule 52. On the other hand, the written answer of Unesco, in
challenging the case for the complainants, relied on the inter-
pretation which it put upon Staff Regulation 4.5.1, on certain
provisions of the Staff Rules, and, primarily, on the meaning
which it attributed to fixed-term contracts. All this serves to
bring out the issue of which the Administrative Tribunal was
seised. The Court has to consider whether the examination of
these complaints fell within the jurisdiction of the Administrative
Tribunal under Article II, paragraph 5, of its Statute which
provides : ‘‘The Tribunal shall ... be competent to hear complaints
alleging noÂ-observance, in substance or in form, of the terms
of appointment of officials and of provisions of the Staff Regu-
lations...”

The Court cannot attach to this provision any purely formal
meaning so as to require that the official should expressly indicate
in his complaint the particular term or provision on which he intends
to rely. In the first place, what must be alleged, according to Ar-
ticle II, paragraph 5, is non-observance, namely, some act or
omission on the part of the Administration ; in the present case,
the complainant invoked the refusal to renew his contract. Secondly,
the Tribunal is entitled to ascertain and to determine what are the
texts applicable to the claim submitted to it. In order to admit
that the Tribunal had jurisdiction, it is sufficient to find that the
claims set out in the complaint are, by their nature, such as to fall
within the framework of Article II, paragraph 5, of the Statute of
the Administrative Tribunal in the sense indicated in another part
of this Opinion.

According to the words of this provision, it is necessary, in
order to establish the jurisdiction of the Tribunal to hear a com-
plaint by an official, that he should allege non-observance of the
terms or provisions therein referred to. “Complaints alleging’’ is
a wider expression than ‘‘complaints based on’. The latter may

15
ADM. TRIBUNAL OF LL.O. (OPINION OF 23 X 56) 89

be interpreted as meaning that the object of such a complaint
must be legally well-founded. Yet the Court, when confronted
with the words “claims ... based on the provisions” of a treaty,
considered that these words “cannot be understood as meaning
claims actually supportable under that Treaty” (Ambatielos case,
Merits: Obligation to arbitrate, I.C.J. Reports 1953, p. 17). This
is particularly true in the case of the more flexible expression
“complaints alleging’. These words refer to what the complainant
alleges—to that on which he relies for the purpose of supporting
his complaint. But Article II, paragraph 5, does not mean that
a mere verbal reference to certain terms or provisions would
suffice to establish the jurisdiction of the Administrative Tribunal.
A mere allegation by the complainant cannot be sufficient to
cause the Tribunal to accept it for the purpose of examining the
complaint. In the Judgment previously referred to, the Court,
in construing the expression “based on”, said that “it is not
enough for the claimant Government to establish a remote con-
nexion between thé facts of the claim and the Treaty” invoked.
However, it proceeded to add that “it is not necessary for that
Government to show ... that an alleged treaty violation has an
unassailable legal basis” (ibid, p. 18). Similarly, in applying
Article II, paragraph 5, the Court considers that this intermediate
position must be adhered to, namely, that it is necessary that
the complaint should indicate some genuine relationship between
the complaint and the provisions invoked, but that it is not
required that the facts alleged should necessarily lead to the
results alleged by the complainants. Any such requirement would
confuse the question of jurisdiction with that of the substance.

In the cases here in question, the officials put forward an inter-
pretation of their contracts and of the Staff Regulations to the
effect that they had a right to the renewal of their contracts.
They alleged that the Administrative Memorandum was com-
plementary to their contracts and to the Staff Regulations and
that it gave them a legal right to renewal. The correctness of
these allegations constitutes the substance of the issue which
they submitted to the Tribunal. In order to determine the juris-
diction of the Tribunal, it is necessary to ascertain whether the
terms and the provisions invoked appear to have a substantial
and not merely an artificial connexion with the refusal to renew
the contracts.

In the light of what has been said above, the Court will now
examine the question whether, for the purpose of accepting juris-
diction, the Administrative Tribunal was entitled to find that
there existed before it a complaint sufficient to bring it within
the scope of (a) ‘‘terms of appointment” or (6) “Staff Regu-
lations’. These two aspects of the question will be considered
in turn.

16
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) go

Duberg’s contract, as renewed on the last occasion, was due to
expire on December 31st, 1954. He maintained that that contract
gave him a right to a renewal of the contract. Was that asser-
tion sufficiently well-founded to establish the competence of the
Administrative Tribunal? For that purpose, it was necessary
that the assertion should have some serious juridical basis. The
question of renewal arose at the time when Duberg’s contract
was still in force. It was in August 1954 that the decision not to
zenew his contract was taken; that decision was subsequently
confirmed and maintained after November 25th, 1954, following
upon the opinion of the Appeals Board invoked by Duberg ;
Duberg’s contract did not expire until December 31st, 1954.
Furthermore, the contract of employment expressly refers to the
Staff Regulations and Rules, as well as to any amendments thereto.
The expression “terms of appointment’ which is used in the
English text of the Statute of the Administrative Tribunal and
which also appears in the document relating to Duberg’s engage-
ment—an expression which seems to be both wider and more
appropriate than the expression “‘stipulations du contrat d’enga-
gement’’—must be understood in relation to the attitude assumed
in the matter by the Director-General. Now the latter, in his
Administrative Memorandum of July 6th, 1954, adopted a position
with regard to the renewal of fixed-term contracts. He announced
and brought to the knowledge of the staff his intention to offer
a renewal of these contracts under certain specified conditions.
This signified, on his part, a decision to recognize or establish a
link between the contracts which were due to expire and their
renewal. What was the nature of that link? Did it go so far as
to confer upon Duberg a legal right to obtain the renewal of his
contract ? These questions are sufficiently related to the inter-
pretation of the contract of employment, in terms of its observance
or non-observance, to permit a finding that they fell within the
competence of the Administrative Tribunal. In saying this, the
Court does not pass on the question whether Duberg fulfilled the
conditions required in the Administrative Memorandum for the
renewal of his contract. That question is not before the Court.

*
ok *

The Court cannot admit that in order to appreciate the legal
situation in the matter it is possible to attach exclusive importance
to the letter of the contracts in question and, in particular, to
the provision according to which, in case of non-renewal, these
contracts expire automatically on the date fixed. The officials
claimed to derive a right to renewal from their fixed-term contracts.
They complained of the fact that such renewal was denied to
them and it was that refusal which they regarded as non-observ-
ance of their contracts. It is clear that the mere expiry of the
term fixed in the contract could not have the effect of nullifying

17
ADM. TRIBUNAL OF LL.O. (OPINION OF 23 X 56) OI

this non-observance occurring, if in fact it did occur, before the
expiry date and of depriving the officials of their right to complain
of it before the Administrative Tribunal. In fact, Article II, para-
graph 6, of its Statute provides: “The Tribunal shall be open:
(a) to the official, even 1f his employment has ceased...”’

The Court is of the opinion that, in order to decide on the
competence of the Administrative Tribunal, it is necessary to
consider these contracts not only by reference to their letter but
also in relation to the actual conditions in which they were entered
into and the place which they occupy in the Organization.

In the practice of Unesco—as well as in the practice of the
United Nations and of the Specialized Agencies—fixed-term
contracts are not like an ordinary fixed-term contract between
a private employer and a private employee. At the crucial period
a large number of the employees of Unesco held fixed-term con-
tracts. A similar situation seems to have obtained in the United
Nations and in the Specialized Agencies. There is no need here
‘to go into the reasons which have prompted that form of contracts.
The fact is that there has developed in this matter a body of
practice to the effect that holders of fixed-term contracts, although
not assimilated to holders of permanent or indeterminate contracts,
have often been treated as entitled to be considered for continued
employment, consistently with the requirements and the general
good of the organization, in a manner transcending the strict
wording of the contract. In a document entitled ‘Personnel
Recruitment Standards and Methods”, which was submitted,
under the authority of the Director-General, to the General
Conference at its Eighth Session in 1954, it was stated in para-
graph 26 that ‘the existing Regulation 4.5.1, adopted by the
Seventh Session of the General Conference, obliges the Director-
General to give indeterminate appointments to all staff members
after they have satisfactorily completed a fixed-term appointment
of one to three years, unless he considers that’ in the light of
programme requirements, “he should only give a further fixed-
term appointment’’. In paragraph 14 of the same document may
also be noted the statement that “if a staff member has fulfilled
his duties efficiently and his conduct is satisfactory, his appoint-
ment is, in most cases, renewed”’. At the Seventeenth Meeting of
the Administrative Commission during the Eighth Session of the
General Conference the Director-General stated on November 2oth,
1954, ‘that, under the existing paragraph 4.5.1 of the Staff Regula-
tions, he was under an obligation to renew a contract for an indeter-
minate period (provided the person satisfied all the requirements),
unless he could invoke programme needs as a reason for not doing
so’. The practice as here surveyed is a relevant factor in the inter-
pretation of the contracts in question. It lends force to the view
that there may be circumstances in which the non-renewal of a
fixed-term contract provides a legitimate ground for complaint.

8
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 92

* * *

The practice referred to above should serve as a warning against
an interpretation of the contract of employment which, by consider-
ing exclusively the literal meaning of its provision relating to
duration, would mean that on the expiry of the fixed period a
fixed-term contract cannot be relied upon for the purpose of im-
pugning a refusal to renew it. Such an interpretation, moreover,
would fail to take into account the nature of renewal as understood
in the Staff Regulations to which the contract expressly refers.
This is an aspect of the matter which has to be considered in order
to determine whether, as has been argued, the holder of a fixed-
term contract is, so far as its renewal is concerned, in the same
legal position as an applicant for employment seeking to enter the
service of Unesco.

Clearly, an applicant for a new appointment who fails to obtain
it cannot properly invoke the jurisdiction of the Administrative
Tribunal. Can the same be said of an official who fails to obtain a
renewal of his fixed-term contract ? The question of the renewal of
a fixed-term contract arises for one who is at the time a staff mem-
ber of Unesco. That was the position of the four complainants. The
text governing their appointments was Staff Regulation 4.5.1,
which provided as follows :

“Other staff members shall be appointed on fixed-term contracts
for an initial period of not less than one nor more than three years,
renewable either (a) without limit of time, or (6) in the light of
programme requirements, for further fixed periods of not less than
one year up to a maximum period of service of five years, at the
discretion of the Director-General. Staff members appointed before
i January 1952 shall be deemed, for the. purpose of this regulation,
to have been appointed on that date, without prejudice to their
acquired rights in other respects.”

The words ‘fixed-term contracts ... renewable’ imply that
renewal constitutes a further stage, a continuing period, of the
former contract. There is no question here of a new contract wholly
unrelated to its predecessor. That character of renewal is confirmed
by a distinction between fixed-term contracts, which may be
renewed, and temporary contracts in respect of which there is no
provision for renewal. Staff Rule 52 (d) provided as follows:

“A fixed-term appointment shall expire upon completion of the
fixed-term unless a new appointment is offered and accepted three
months before the expiry date, if the staff member has served for

19
ADM. TRIBUNAL OF 1.1.0. (OPINION OF 23 X 56) 93

less than one year or six months before the expiry date, if he has
served for more than one year.”

On the other hand, Staff Rule 53 (d) said merely : “A temporary
appointment shall expire on the expiry date specified in the contract
without notice or indemnity.”

From the use of the expression “new appointment” in Rule
52 (4), cited above, it cannot be concluded that what is currently
called ‘‘renewal” is an appointment without any link with what
precedes it and that the official to whom such renewal has been
offered or refused is in the same situation as an applicant who is
new to the staff of Unesco and wishes to enter it for the first time.
The proper meaning of the expression “new appointment” does
not lend itself to any such interpretation, and the Administration
has not understood it in that sense. In fact, the Director-General
introduced in Rule 52 {d), which has become Rule 104.6, a modifi-
cation which entered into force on November Ist, 1954, and which
consists in the substitution of the expression ‘“‘renewal’’ for the
expression ‘new appointment’. It is the text thus amended which
the Administrative Tribunal has cited in the reasons for its decision
on competence.

The view that there is a link between renewal and the original
contract and that the situation here envisaged is different from that
arising in the case of granting a new contract to an applicant
corresponds to the accurate meaning of the term ‘‘renewal’’. That
view is also in accordance with the fact that at the time when the
question of renewal arises the interested person is an official of the
Organization and not a stranger to it. This is the reason why Rule
52 (d), both in its original version and in the amended text (which
became Rule 104.6 (d), then Rule 104.6 (e)), after having stated that
the original appointment expires on the fixed date, adds, by way
of exception, the following words: ‘‘unless a new appointment [or
renewal] is offeréd and accepted” and this “before the expiry date”
of the original appointment. This confirms the view that in cases
of renewal it is the initial appointment which remains in existence
and not a new appointment independent of its predecessor,

Similarly, Staff Rule 6x (which has become Rule 104.14) which
is concerned with re-employment, shows that the latter is some-
thing different from the renewal of an appointment. The renewal
of an appointment is effected differently from the grant of an original
appointment. A comparison between paragraphs 13 and 14 of the
Personnel Recruitment Standards and Methods makes the position
clear. In paragraph 14, the following sentence occurs: “If a staff
member has fulfilled his duties efficiently and his conduct is satis-
factory, his appointment is, in most cases, renewed.’ The passage
quoted suggests that the renewal is something fundamentally
different from the granting of anew appointment; at the same time it
indicates that a diligent staff member may normally expect renewal.
The use of the word “review” in the heading of the English text

20
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 94

of paragraph 14 confirms the impression that the renewal is based
on an examination of the record of service of the official concerned.

The provision, quoted above, of Staff Regulation 4.5.1, under
which a staff member appointed on a fixed-term contract cannot be
kept in that status for a period of service of more than five years,
similarly implies that it is the original contract which continues in
existence up to that maximum period.

Reference may also be made to the form given by the General
Conference at its Eighth Session in 1954 to Staff Regulation 4.2,
which thereafter provided as follows:

“In appointing, transferring or promoting staff members, and in
renewing appointments, the Director-General shall aim at securing
the highest standards of efficiency, competence and integrity.”

The words in italics were added in 1954. The fact that it was
considered desirable to make this addition indicates that the
renewal of an appointment was considered as being somewhat
different from the act of ‘‘appointing” referred to in the earlier
text. Finally—and this is more than a matter of technical detail
—it is of interest to note that the document entitled ‘‘Notice
of Personnel Action’’, which is attached to the original Letter
of Appointment, defines the type of action as “appointment”’
whereas that attached to the second Letter of Appointment
defines the type of action as “extension of contract’”—a wording
which recalls the notion of an original contract whose duration
is simply prolonged. |

All this shows that there is a relationship, a legal relationship,
between the renewal and the original appointment and, conse-
quently, between the renewal and the legal position of an official
at the moment when his claim to renewal is granted or denied.
Does that relationship go so far as ta create in his favour, as
has been claimed, a definite right to renewal? That is a question
which pertains to the merits and which it is not necessary for
the Court to answer. It is sufficient to note that the complaint
of the appellant was related to the link created between the
original contract and its renewal—a link clearly established by
the Staff Regulations and Rules to which the contract expressly
makes reference and which constitute the legal basis on which
the interpretation of the contract must rest. Thus the complainant,
in claiming to possess a right to renewal of his contract and in
claiming that that right had been infringed, was placing himself
on the ground of non-observance of the terms of appointment.

21
ADM. TRIBUNAL OF I.L.0. (OPINION OF 23 X 56) 95

*
* *

The legal relationship thus found to exist between a fixed-term
contract and its renewal—a relationship which constitutes the
legal basis of the complaints of the officials—shows itself once
more in the decision taken by the Director-General in the Adminis-
trative Memorandum of July 6th, 1954.

In this Memorandum the Director-General announced that he
had “decided that all professional staff members” who satisfied
certain conditions and whose services were needed would “be
offered one-year renewals of their appointments’. It was possible
to maintain that the effect of the Memorandum was to create
a right to the renewal of the contracts. The Court considers that
it could reasonably be maintained that an administrative notice
framed in such general terms might be regarded as binding on
the Organization ; and that the necessity, asserted by Unesco, of an
individual offer and an individual acceptance of the offer was,
in the circumstances, a matter of form rather than of substance.
It is not necessary for the Court to decide whether the legal
consequences thus envisaged actually followed from the Adminis-
trative Memorandum. In any case, the Court considers that if
the Director-General thought fit to refuse to an official the benefit
of the general offer thus extended, any dispute which might arise
with regard to the matter fell within the jurisdiction of the
Administrative Tribunal.

*
* *

It follows from the preceding considerations that the Adminis-
trative Tribunal was entitled to assume that the complaints
required it to adjudicate on an alleged non-observance of the
terms of appointment, and, consequently, to declare itself com-
petent to hear them. In the course of those considerations, the
Court referred to the provisions of the Staff Regulations and of
the Staff Rules. On this ground, which constitutes a second basis
for the jurisdiction of the Administrative Tribunal, the Court
feels it necessary to add certain observations which serve to
confirm the conclusions already reached.

Before the Administrative Tribunal, Unesco contended that the
complaints of the officials were based “on a profound ... misinter-
pretation of implications of temporary appointments” ; that they
involved a ‘“‘revolution in the system of temporary contracts’’; and
that Unesco sought ‘‘to define ... the terms ‘permanent contract’ and
‘temporary appointment’ [...and...] the different situations to which
they correspond and their respective legal consequences”. It was
thus putting itself on the ground of the provisions of the Staff
Regulations, that is, on the ground covered by the jurisdiction

22
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 96

of the Administrative Tribunal as defined in Article II, paragraph 5,
of its Statute. Conversely, in the Duberg case the complainant
analysed under three points the arguments of the Director-
General: (1) the appellant had no acquired right to the renewal
of his contract ; (2) the Director-General was not bound to state
his reasons for non-renewal ; and (3) his decision in the matter
was not subject to the control of a jurisdictional body. The com-
plainant contested these propositions. He did so ‘in reliance not
only on the terms of the contract, but also of the Staff Regulations.

Under Staff Regulations 4.5.1, the renewal of fixed-term contracts
was made subject to ‘‘programme requirements”. The Director-
General took the view that he could not anticipate what might
be decided with regard to this point by the General Conference,
which was to meet at the end of 1954. This fact explains why he
took no action with regard to the renewal of Duberg’s contract,
which was due to expire on December 31st, 1954, before the
date fixed for this purpose by Staff Rule 52 (4), which subsequently
became Rule 104.6 (d). In these circumstances, the Director-
General, believing “that there is general agreement that the
personnel policy of the Organization should be based on the
concept of an international civil service and should be aimed at
retaining on a permanent basis those staff members who achieve
the highest standards of efficiency, competence and integrity and
whose services are needed”’, issued, on July 6th, 1954, an Adminis-
trative Memorandum on the subject of ‘““Renewal of appointments
expiring end 1954 and early 1955”. In this Memorandum, the
Director-General announced that he had ‘decided that all profes-
sional staff members” whose contracts would shortly expire and
“who have achieved the required standards of efficiency, com-
petence and integrity and whose services are needed, will be
offered one-year renewals of their appointments’. What was the
character of that Memorandum? In the view of the Court it
constituted a modification of the Staff Rules then in force—a
modification which the Director-General was authorized to make
under Staff Regulation 12.2. By virtue of that modification,
Article 52 (d) of the Staff Rules was provisionally altered. All
officials whose contracts would expire between July 6th, 1954,
and June 30th, 1955, and who possessed the required qualifications,
were now informed that they would be offered a renewal of one
year. The prescribed period of three months or six months had
ceased to be relevant. The resulting situation shows that the
Administrative Memorandum was related to the application of
the Staff Regulations.

Finally, there are two other factors which bring the Adminis-
trative Memorandum of July 6th, 1954, within the terms of
Article II, paragraph 5, of the Statute of the Administrative
Tribunal. In the first place it referred to the phrase ‘in the

23
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 97

light of programme requirements” embodied in Staff Regulation
4.5.1. In the second place, the Memorandum relied by implication
on Staff Regulation 4.2, which lays down that in appointing,
transferring or promoting staff members, the Director-General
shall aim at securing the highest standards of efficiency, com-
petence and integrity. The controversy submitted to the Admin-
istrative Tribunal centred around the notion of integrity referred
to both in the Memorandum and in Staff Regulation 4.2. Indeed
that was the crucial point in reliance on which the complaint
challenged the decision of the Director-General as open to attack.
From this point of view, the allegation of non-observance of
Staff Regulations seems clearly to fall within the jurisdiction of
the Tribunal.

It follows from the preceding considerations that whether
looked at from the point of view of non-observance of the terms
of appointment or of that of non-observance of Staff Regulations,
the question was, as stated by the Administrative Tribunal in
the reasons which it gave for its decision in the matter of com-
petence, one of a ‘‘dispute concerning the interpretation and
application of the Staff Regulations and Rules of the defendant
Organisation” and that, in consequence, the Tribunal was justified
in confirming its jurisdiction.

The Court has not lost sight of the fact that both before the
Administrative Tribunal and in the statements submitted to the
Court it has been contended, on the one hand, that the Adminis-
trative Tribunal was an international tribunal and, on the other
hand, that it was a Tribunal of limited jurisdiction (‘juridiction
d'attribution”) and not of general jurisdiction (“juridiction de droit
commun”). That contention has been put forward with a view to
achieving a restrictive interpretation of the provisions governing
the jurisdiction of the Tribunal. The Court does not deny that the
Administrative Tribunal is an international tribunal. However, the
question submitted to the Tribunal was not a dispute between
States. It was a controversy between Unesco and one of its officials.
The arguments, deduced from the sovereignty of States, which
might have been invoked in favour of a restrictive interpretation of
provisions governing the jurisdiction of a tribunal adjudicating
between States are not relevant to a situation in which a tribunal
is called upon to adjudicate upon a complaint of an official against
an international organization.

The Court recognizes that the Administrative Tribunal is a
Tribunal of limited jurisdiction. Accordingly, the Court has pro-
ceeded on the basis of the provision which confers upon the Tribunal
jurisdiction in the matter of “complaints alleging non-observ-

24
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 98

ance, in substance or in form, of the terms of appointment of
officials and of provisions of the Staff Regulations’. The
Court has acted upon that provision and upon the other relevant
provisions of the Staff Regulations. In doing so the Court has
relied on the wording of the texts in question as well as on their
spirit, namely, the purpose for which they were adopted. That
purpose was to ensure to the Organization the services of a per-
sonnel possessing the necessary qualifications of competence and
integrity and effectively protected by appropriate guarantees in
the matter of observance of the terms of employment and of
the provisions of the Staff Regulations. It is in that way that
the Court arrived at what it considers to be the correct inter-
pretation of Article II (5) of the Statute of the Administrative
Tribunal and the proper application of that provision to the
case submitted to it. It was not necessary for it, for that purpose,
to have recourse to any principles of either restrictive or extensive
interpretation.

*
* *

The Court, having decided to give an affirmative answer to
Question I, will now examine Question II as put to it in the
Request for an Advisory Opinion. That question is as follows:

“TI.—In the case of an affirmative answer to question I :

(a) Was the Administrative Tribunal competent to determine
whether the power of the Director-General not to renew fixed-
term appointments has been exercised for the good of the
service and in the interest of the Organization ?

(b) Was the Administrative Tribunal competent to pronounce
on the attitude which the Director-General, under the
terms of the Constitution of the United Nations Educational,
Scientific and Cultural Organization, ought to maintain in
his relations with a Member State, particularly as regards
the execution of the policy of the Government authorities of
that Member State ?”

Article XII of the Statute of the Administrative Tribunal
provides for a Request for an Advisory Opinion of the Court in
two clearly defined cases. The first is where the Executive Board
challenges a decision of the Tribunal confirming its jurisdiction ;
the second is when the Executive Board considers that a decision
of the Tribunal is vitiated by a fundamental fault in the procedure
followed. The Request for an Advisory Opinion under Article XII
is not in the nature of an appeal on the merits of the judgment.
It is limited to a challenge of the decision of the Tribunal confirming
its jurisdiction or to cases of fundamental fault of procedure.
Apart from this, there is no remedy against the decisions of the
Administrative Tribunal. A challenge of a decision confirming

25
ADM. TRIBUNAL OF I.L.O. (OPINION 23 OF X 56) 99

jurisdiction cannot properly be transformed into a procedure
against the manner in which jurisdiction has been exercised or
against the substance of the decision.

There is no reference in Question II either to a fundamental
fault of procedure or to the decision of the Tribunal confirming
its jurisdiction. This is so although the two parts of that question
are formulated in terms of ‘‘competence’’. For these are questions
relating to the reasons given by the Tribunal for its decision on
the merits of the question submitted to it. The reasons given
by the Tribunal for its decision on the merits, after it confirmed
its jurisdiction, cannot properly form the basis of a challenge
to the jurisdiction of the Tribunal. Question I of the present
Request for an Opinion is concerned only with a challenge of
the decision confirming jurisdiction. It does not refer to the other
ground of challenge provided for in Article XII, namely a fun-
damental fault in the procedure followed. The Statute of the
Administrative Tribunal could have provided for other reasons
for challenging the decision of the Tribunal than those referred
to. in Article XII. It has not done so. In view of this, the Court
cannot answer Question II within the framework of Article XII
of the Statute of the Tribunal—the only Article by reference
to which the Opinion of the Court is invoked.

Undoubtedly, Unesco has the general power to ask for an Advis-
ory Opinion of the Court on questions within the scope of its
activity. But the question put to the Court has not been put in
reliance upon the general power of Unesco to ask for an Advisory
Opinion. It has been expressly linked with Article XII. In its
terms and by virtue of the place which it occupies in the Resolution
requesting the Advisory Opinion, Question IT as put to the Court
refers to the judgments which the Executive Board has challenged
in relation to the jurisdiction of the Tribunal which rendered these
judgments. It is on that basis that the question must be considered
by the Court. The Court has found that the object of that Question
is outside the matter which, in the judgments which have been
challenged, is germane to the jurisdiction of the Tribunal. In the
Request for an Advisory Opinion, Question II has been placed
within the orbit of Article XII. Actually, it is outside that Article.
Accordingly, it cannot be considered by the Court for the purpose
of acting upon the request made to it.

+
* *

As, for the reasons stated, the Court is not in the position to
answer Question II, it need not be concerned with some of the wider
issues argued at length before the Tribunal and in the written
statements submitted to the Court. These issues include that of the
law obtaining in various municipal systems as to the position of the
employees of the State, the nature of their employment and the

26
ADM. TRIBUNAL OF I.L.0, (OPINION OF 23 X 56) 100

principles of judicial review governing the tenure and the con-
ditions of their service. These questions do not arise in the present
case.

Similarly, the Court need not consider the allegation that the
Tribunal, which was competent to hear the complaint, committed
an excess of jurisdiction and acted ultra vives in the decision which
it gave. Article XII of the Statute of the Tribunal only refers to a
challenge of ‘‘a decision of the Tribunal confirming its jurisdiction’.
A Request for an Advisory Opinion based on that Article cannot,
contrary to the contention of Unesco, extend to an allegation
that the Tribunal “went beyond the bounds of its competence in
its consideration of the disputes”. Any such allegation, even if it
were well-founded, could not lead to the conclusion that the Tri-
bunal was not competent to hear the complaint.

In view of this the Court need not examine the allegation that
the validity of the judgments of the Tribunal is vitiated by excess
of jurisdiction on the ground that it awarded compensation ex
aequo et bono. It will confine itself to stating that, in the reasons given
by the Tribunal in support of its decision on the merits, the Tri-
bunal said: “That redress will be ensured ex aeguo et bono by the
granting to the complainant of the sum set forth below.” It does
not appear from the context of the judgment that the Tribunal
thereby intended to depart from principles of law. The apparent
intention was to say that, as the precise determination of the
actual amount to be awarded could not be based on any specific
tule of law, the Tribunal fixed what the Court, in other circum-
stances, has described as the true measure of compensation and the
reasonable figure of such compensation (Corfu Channel case, Judg-
ment of December 15th, 1949, I.C.J. Reports 1049, p. 249).

* * +
Question III submitted to the Court is as follows :

“IE—In any case, what is the validity of the decisions given
by the Administrative Tribunal in its Judgments Nos. 17, 18, 19
and 21?”

Under Article V1 of the Statute of the Administrative Tribunal, its
judgments ‘‘shall be final and without appeal’. However, Article XII
authorizes the Executive Board to challenge those judgments,
but only on the ground of lack of jurisdiction or of fundamental
fault in the procedure followed. In case of such a challenge, it is
for the Court to pass, by means of an Opinion having binding force,
upon the challenge thus raised and, consequently, upon the validity
of the judgment challenged. The four judgments have been challenged
only in respect of the competence of the Administrative Tribunal
which rendered them. If the Court had upheld this challenge it
would have had to declare the judgments invalid. The Court, having
rejected the contention relating to jurisdiction, the only contention

27
ADM. TRIBUNAL OF 1.L.0. (OPINION OF 23 X 56) IOL

raised by the Executive Board, will consequently answer Ques-
tion III by a finding in favour of the validity of the four judgments.

For these reasons,
THE COURT DECIDES,

by nine votes to four,

to comply with the Request for an Advisory Opinion ;

THE COURT IS OF OPINION,
With regard to Question I:
by ten votes to three,

that the Administrative Tribunal of the International Labour
Organisation was competent, under Article IT of its Statute, to hear
the complaints introduced against the United Nations Educational,
Scientific and Cultural Organization on February 5th, 1955, by
Messrs. Duberg and Leff and Mrs. Wilcox, and on June 28th, 1955,
by Mrs. Bernstein ;

With regard to Question IT :
by nine votes to four,

that this question does not call for an answer by the Court;

With regard to Question III :
by ten votes to three,

that the validity of the decisions given by the Administrative
Tribunal in its Judgments Nos. 17, 18, 19 and 21 is no longer open
to challenge.

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ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 102

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-third day of October,
one thousand nine hundred and fifty-six, in two copies, one of which
will be placed in the Archives of the Court and the other transmitted
to the Director-General of the United Nations Educational, Scien-
tific and Cultural Organization.

(Signed) GREEN H. HACKWORTH,

President.

(Signed) J. Lopez OvivAn,

Registrar.

Judge Kojevnixov makes the following declaration :

Whilst voting in favour of the decision of the Court to comply
with the Request for an Advisory Opinion submitted by Unesco,
and of the final part of the Opinion itself with regard to Questions I
and III, put by Unesco on November 25th, 1955—although I do
not agree with certain aspects and data relating to the reasoning
of that decision and of that Opinion—I am nevertheless unable
to concur in the view of the Court on Question II.

In my opinion, the Court, having recognized the competence
of the Administrative Tribunal, the validity and consequently the
binding force of the Judgments given by it, it ought also to have
dealt with Question II and given it an affirmative answer.

Indeed, the Administrative Tribunal had to decide whether the
action of the Director-General was dictated by the interests of
Unesco and whether his attitude corresponded to the provisions
of the statute of that Organization.

Without a solution to those questions, the Administrative
Tribunal was not in a position to give a decision on the merits
of the case and to find that the dismissal of the officials concerned
was due solely to their refusal to appear before the Loyalty Board
of the United States.

Accordingly, the Administrative Tribunal was competent to
hear the complaints introduced against Unesco by the officials

29
ADM. TRIBUNAL OF I.L.O. (OPINION OF 23 X 56) 103

concerned and the decisions given by the Administrative Tribunal
in its Judgments Nos. 17, 18, 19 and 21 are perfectly well-founded,
valid and binding upon Unesco and effect must be given to them
by the Organization.

Judges WINIARSKI, KLAESTAD and Sir Muhammad ZAFRULLA
KHAN, availing themselves of the right conferred on them by
Articles 57 and 68 of the Statute, append to the Opinion of the
Court statements of their separate Opinions.

President HacKwortH, Vice-President Bapawl and Judges READ
and CORDOVA, availing themselves of the right conferred on them
by Articles 57 and 68 of the Statute, append to the Opinion of the
Court statements of their dissenting Opinions.

(Initialled) G. H. H.
(Initialled) J. L. O.

30