INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICATION FOR REVIEW OF JUDGEMENT
No. 158 OF THE UNITED NATIONS
ADMINISTRATIVE TRIBUNAL

ADVISORY OPINION OF 12 JULY 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE DE REFORMATION DU JUGEMENT
N° 158 DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIES

AVIS CONSULTATIF DU 12 JUILLET 1973
Official citation:

Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1973, p. 166.

Mode officiel de citation:

Demande de réformation du jugement n° 158 du
Tribunal administratif des Nations Unies, avis
consultatif, C.I.J. Recueil 1973, p. 166.

Sales number 3 81
No de vente:

12 JULY 1973

ADVISORY OPINION

APPLICATION FOR REVIEW OF JUDGEMENT No. 158

OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL

DEMANDE DE REFORMATION DU JUGEMENT N° 158
DU TRIBUNAL ADMINISTRATIF DES NATIONS UNIES

12 JUILLET 1973
AVIS CONSULTATIF
1973
12 July
General List
No, 57

166

INTERNATIONAL COURT OF JUSTICE

YEAR 1973

12 July 1973

APPLICATION FOR REVIEW OF JUDGEMENT
No. 158 OF THE UNITED NATIONS
ADMINISTRATIVE TRIBUNAL

ADVISORY OPINION

Request for advisory opinion by the Committee on Application for Review of
Administrative Tribunal Judgements—General Assembly resolution 957 (X)—
Article 11 of the Statute of the United Nations Administrative Tribunal—
Competence of the Court—Question whether the body requesting the opinion
is a body duly authorized to request opinions—Article 96 of the Charter
— Legal questions arising within the scope of the activities of the requesting
body—Propriety of the Court’s giving the opinion—Compatibility of system of
review established by resolution 957 (X) with general principles governing the
judicial process.

Scope of questions submitted to Court—Nature of task of Court in proceed-
ings instituted by virtue of Article 11 of Statute of the United Nations Admin-
istrative Tribunal,

Objection to Judgement on ground of failure by Administrative Tribunal to
exercise jurisdiction vested in it—Test of whether the Tribunal has failed to
exercise jurisdiction—Allegations that Tribunal failed to exercise juris-
diction in that it refused to consider fully claims for costs, failed to direct
recalculation of rate of remuneration and to order correction and completion of
employment record—Extent of power of Tribunal to award compensation—
Question of misuse of power by administration.

Objection to Judgement on ground of fundamental error in procedure which
occasioned a failure of justice—Meaning of ‘‘fundamental error in procedure”
—Absence or insufficiency of statement of reasons for a judgment as fundamental
error in procedure—Rejection by the Tribunal of staff member's claim for costs—
Question of costs of review proceedings.

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167 APPLICATION FOR REVIEW (ADVISORY OPINION)

Present: President LACHS; Vice-President AMMOUN; Judges FORSTER, GROS,
BENGZON, ONYEAMA, DILLARD, DE CASTRO, MOROZOV, JIMENEZ
DE ARECHAGA, Sir Humphrey WALDOCK, NAGENDRA SINGH, RUDA;
Registrar AQUARONE.

In the matter of the Application for Review of Judgement No. 158 of the
United Nations Administrative Tribunal,

THE COURT,
composed as above,
gives the following Advisory Opinion:

1, The questions upon which the advisory opinion of the Court has been
asked were laid before the Court by a letter dated 28 June 1972, filed in the
Registry on 3 July 1972, from the Secretary-General of the United Nations.
By that letter the Secretary-General informed the Court that the Committee
on Applications for Review of Administrative Tribunal Judgements, set up
by General Assembly resolution 957 (X), had, pursuant to Article 11 of the
Statute of the United Nations Administrative Tribunal, decided on 20 June
1972 that there was a substantial basis for the application made to that
Committee for review of Administrative Tribunal Judgement No. 158, and had
accordingly decided to request an advisory opinion of the Court. The decision
of the Committee. which was set out in extenso in the Secretary-General’s
letter, and certified copies of which in English and French were enclosed
with that letter, read as follows:

“The Committee on Applications for Review of Administrative
Tribunal Judgements has decided that there is a substantial basis within
the meaning of Article 11 of the Statute of the Administrative Tribunal
for the application for the review of Administrative Tribunal Judgement
No. 158, delivered at Geneva on 28 April 1972.

Accordingly, the Committee requests an advisory opinion of the
International Court of Justice on the following questions:

1. Has the Tribunal failed to exercise jurisdiction vested in it as contended
in the applicant’s application to the Committee on Applications for
Review of Administrative Tribunal Judgements (A/AC 86/R.59)?

2. Has the Tribunal committed a fundamental error in procedure which
has occasioned a failure of justice as contended in the applicant’s
application to the Committee on Applications for Review of Adminis-
trative Tribunal Judgements (A/AC.86/R.59)?”’

2. In accordance with Article 66, paragraph 1, of the Statute of the Court,
notice of the request for an advisory opinion was given on 10 July 1972 to
all States entitled to appear before the Court; a copy of the Secretary-
General’s letter with the decision of the Committee appended thereto was
transmitted to those States.

3. The Court decided on 14 July 1972 that it considered that the United
Nations and its member States were likely to be able to furnish information
on the question. Accordingly, on 17 July 1972 the Registrar notified the
Organization and its member States, pursuant to Article 66, paragraph 2, of
the Statute of the Court, that the Court would be prepared to receive written
statements from them within a time-limit fixed by an Order of 14 July 1972
at 20 September 1972.

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4. Pursuant to Article 65, paragraph 2, of the Statute of the Court, the
Secretary-General of the United Nations transmitted to the Court a dossier of
documents likely to throw light upon the question; these documents reached
the Registry on 29 August 1972.

5. One written statement was received within the time-limit so fixed,
namely a statement filed on behalf of the United Nations and comprising a
statement on behalf of the Secretary-General of the United Nations and a
statement of the views of Mr. Mohamed Fasla, the former staff member to
whom the Judgement of the Administrative Tribunal related; the latter state-
ment was transmitted to the Court by the Secretary-General pursuant to
Article 11, paragraph 2, of the Statute of the United Nations Administrative
Tribunal.

6. Copies of the written statement were communicated to the States to
which the communication provided for in Article 66, paragraph 2, of the
Statute had been addressed. At the same time, by letter of 6 October 1972,
these States, and the United Nations, were informed that it was not contem-
plated that public hearings for the submission of oral statements would be
held in the case, and that the President of the Court had fixed 27 November
1972 as the time-limit for the submission of written comments as provided
for in Article 66, paragraph 4, of the Statute.

7. It subsequently appeared to the President of the Court from certain
communications from Mr. Fasla, forwarded to the Court by the Secretary-
General, that there was doubt whether the statement furnished to the Secre-
tary-General and transmitted to the Court, accurately represented Mr. Fasla’s
views; the President therefore decided on 25 October 1972 that the written
statement referred to in paragraph 5 above might be amended by the filing
of acorrected version of the statement of Mr. Fasla’s views, and fixed 5 Decem-
ber 1972 as the time-limit for this purpose. A corrected statement of the views
of Mr. Fasla was filed through the Secretary-General within the time-limit
so fixed, and copies thereof were communicated to the States to which the
original written statement had been communicated.

8. In view of the time-limit for the amendment of the written statement,
the President extended the time-limit for the submission of written comments
under Article 66, paragraph 4, of the Statute to 31 January 1973. Within the
time-limit as so extended, written comments were filed on behalf of the United
Nations, comprising the comments of the Secretary-General on the corrected
version of the statement of the views of Mr. Fasla, and the comments of Mr.
Fasla on the statement on behalf of the Secretary-General.

9. Copies of the written comments were communicated to the States to
whom the communication provided for in Article 66, paragraph 2, of the
Statute had been addressed. At the same time, by letter of 22 February
1973, these States were informed that the Court had decided not to hold
public hearings for the submission of oral statements in the case. This decision,
taken on 25 January 1973, had been communicated to the United Nations
by telegram the same day.

* *

10. The circumstances which have given rise to the present request for
an advisory opinion are briefly as follows. Mr. Mohamed Fasla, the
former staff member referred to above, entered United Nations service

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on 30 June 1964 with a two-year fixed-term contract as Assistant Resident
Representative of the Technical Assistance Board in Damascus (Syrian
Arab Republic). After further assignments in Beirut (Lebanon), New
York and Freetown (Sierra Leone), Mr. Fasla was on 15 September 1968
reassigned to the office of the United Nations Development Programme
(UNDP) in Taiz (Yemen) as Assistant Resident Representative. His
contract had by then been renewed by successive periods of six months,
one year, three months and twenty-one months, and was due to expire on
31 December 1969. On 22 May 1969 Mr. Fasla was informed that while
every effort would be made to secure another assignment for him, it might
well be that no extension of his existing contract would be made. This
advice was reiterated in a letter of 12 September 1969 informing Mr. Fasla
that it had not so far been possible to find him an assignment and that he
would be maintained on leave with full pay until the expiry of his contract.
Mr. Fasla requested the Secretary-General to review that decision, but
was informed that no review by the Secretary-General was required.
By letter of 20 November 1969, the Director of the UNDP Bureau of
Administrative Management and Budget notified Mr. Fasla that it had
not been possible to find a new assignment for him and that no extension
of his contract could therefore be envisaged. Mr. Fasla, having again
requested a review of that decision, was informed by letter of 12 December
1969 that there was no basis for the Secretary-General to alter the position
taken by UNDP. On 28 December 1969, he lodged an appeal with the
Joint Appeals Board. On 3 June 1970 the Board, having found that
UNDP’s efforts to assign Mr. Fasla elsewhere were inadequate since the
fact-sheet circulated concerning his performance record was incomplete,
recommended the correction and completion of the records concerning
Mr. Fasla’s service, the renewal by UNDP of endeavours to find him a
post and, should these fail, an ex gratia payment of six months’ salary.
By a letter of 10 July 1970, however, Mr. Fasla was informed that the
Secretary-General had decided that there was no basis for the granting of
an ex gratia payment and that no action should be taken in respect of that
recommendation by the Board. By a letter of 31 August 1970 Mr. Fasla
was informed that UNDP did not intend to offer him another appointment,
as all possible efforts, it was maintained, had been made to find a suitable
post for him within UNDP or with other agencies when he was under
contractual status with UNDP. On 31 December 1970, after seeking to
re-open the proceedings before the Joint Appeals Board, which however
considered that this was not possible under the relevant Staff Rules and
Regulations, he filed an application with the United Nations Admini-
strative Tribunal. On 11 June 1971, following proceedings before the
Joint Appeals Board in respect of a decision dated 15 June 1970 relating
to calculation of remuneration, Mr. Fasla filed a supplement to the appli-
cation with the Administrative Tribunal. Written pleadings were sub-
mitted in accordance with the Rules of the Tribunal, and there were also
requests for production of documents; judgment (in respect of both the
application and the supplement) was given by the Tribunal on 28 April

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1972. By an application of 26 May 1972, Mr. Fasla raised objections to
the decision and asked the Committee on Applications for Review of
Administrative Tribunal Judgements to request an advisory opinion of
the Court.

* *

11. In formulating the request for an advisory opinion, the Committee
on Applications for Review of Administrative Tribunal Judgements
exercised a power conferred upon it by the General Assembly by its
resolution 957 (X) of 8 November 1955. .This resolution, inter alia,
introduced into the Statute of the Administrative Tribunal of the United
Nations a new Article 11 by which provision was made for the possibility
of challenging judgements of the Tribunal before the Court through the
machinery ‘of a request for an advisory opinion. After the Court had
given its Opinion concerning the Effect of Awards of Compensation
Made by the United Nations Administrative Tribunal U.C.J. Reports 1954,
p. 47), the General Assembly set up a Special Committee to study the
question of establishing a procedure for review of the Tribunal’s judge-
ments. The new Article 11 embodies the proposals of that Special
Committee, as amended at the Tenth Session of the General Assembly,
and it is pursuant to the procedure provided in Article 11 that the present
request for an opinion has been submitted to the Court.

12. The applicable provisions of Article 1! are contained in its first
four paragraphs, which read as follows:

“1. If a Member State, the Secretary-General or the person in
respect of whom a judgement has been rendered by the Tribunal
(including any one who has succeeded to that person’s rights on
his death) objects to the judgement on the ground that the Tribunal
has exceeded its jurisdiction or competence or that the Tribunal
has failed to exercise jurisdiction vested in it, or has erred on a
question of law relating to the provisions of the Charter of the United
Nations, or has committed a fundamental error in procedure which
has occasioned a failure of justice, such Member State, the Secretary-
General or the person concerned may, within thirty days from the
date of the judgement, make a written application to the Committee
established by paragraph 4 of this article asking the Committee to
request an advisory opinion of the International Court of Justice on
the matter.

2. Within thirty days from the receipt of an application under
paragraph 1 of this article, the Committee shall decide whether or
not there is a substantial basis for the application. If the Committee
decides that such a basis exists, it shall request an advisory opinion of
the Court, and the Secretary-General shall arrange to transmit to
the Court the views of the person referred to in paragraph 1.

3. If no application is made under paragraph 1 of this article,
171 APPLICATION FOR REVIEW (ADVISORY OPINION)

or if a decision to request an advisory opinion has not been taken
by the Committee, within the periods prescribed in this article, the
judgement of the Tribunal shall become final. In any case in which
a request has been made for an advisory opinion, the Secretary-
General shall either give effect to the opinion of the Court or request
the Tribunal to convene specially in order that it shall confirm its
original judgement, or give a new judgement, in conformity with the
opinion of the Court. If not requested to convene specially the
Tribunal shall at its next session confirm its judgement or bring it
into conformity with the opinion of the Court.

4. For the purpose of this article, a Committee is established
and authorized under paragraph 2 of Article 96 of the Charter to
request advisory opinions of the Court. The Committee shall be
composed of the Member States the respresentatives of which have
served on the General Committee of the most recent regular session
of the General Assembly. The Committee shall meet at United
Nations Headquarters and shall establish its own rules.”

13. During the debates in the Special Committee and in the Fifth
Committee of the General Assembly which led up to the adoption of
resolution 957 (X), a number of delegations questioned the legality or the
propriety of various aspects of the procedure set out in these paragraphs.
In fact, before the adoption of the resolution at the 541st plenary meeting
of the General Assembly, one delegation made a formal proposal that
the Court should be requested to give an advisory opinion on the question
whether the resolution was juridically well founded. Furthermore,
although resolution 957 (X) was adopted nearly 18 years ago, this is the
first occasion on which the Court has been called upon to consider a
request for an opinion made under the procedure laid down in Article 11.
Accordingly, although no question has been raised in the statements and
comments submitted to the Court in the present proceedings either as to
the competence of the Court to give the opinion or as to the propriety
of its doing so, the Court will examine these two questions in turn.

*
* *

14. As to the Court’s competence to give the opinion, doubts have
been voiced regarding the legality of the use of the advisory jurisdiction
for the review of judgements of the Administrative Tribunal. The con-
tentious jurisdiction of the Court, it has been urged, is limited by Article
34 of its Statute to disputes between States: and it has been questioned
whether the advisory jurisdiction may be used for the judicial review of
contentious proceedings which have taken place before other tribunals
and to which individuals were parties. However, the existence, in the
background, of a dispute the parties to which may be affected as a
consequence of the Court’s opnion, does not change the advisory nature
of the Court’s task, which is to answer the questions put to it with regard
to a judgment. Thus, in its Opinion concerning Judgments of the Adminis-

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trative Tribunal of the ILO upon Complaints Made against Unesco (1.C.J.
Reports 1956, p. 77), the Court upheld its competence to entertain a
request for an advisory opinion for the purpose of reviewing judicial
proceedings involving individuals. Moreover, in the earlier advisory
proceedings concerning the Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal (LC.J. Reports 1954,
p. 47) the Court replied to the General Assembly’s request for an opinon
notwithstanding the fact that the questions submitted to it closely con-
cerned the rights of individuals. The Court sees no reason to depart from
the position which it adopted in these cases. If a request for advisory
opinion emanates from a body duly authorized in accordance with the
Charter to make it, the Court is competent under Article 65 of its Statute
to give such opinion on any legal question arising within the scope of the
activities of that body. The mere fact that it is not the rights of States
which are in issue in the proceedings cannot suffice to deprive the Court of
a competence expressly conferred on it by its Statute.

15. In the present case, however, of a request for an opinion made
under Article 11 of the Statute of the United Nations Administrative
Tribunal, it has been questioned whether the requesting body itself is a
body duly authorized under the Charter to initiate advisory proceedings
before the Court. Under Article 11 the requesting body is the Committee
on Applications for Review of Administrative Tribunal Judgements
(hereafter for convenience called the Committee), which was created by
General Assembly resolution 957 (X) specifically to provide machinery
for initiating advisory proceedings for the review of judgements of the
Tribunal. This Committee, it has been maintained is not such a body as
can be considered one of the ‘‘organs of the United Nations” entitled to
request advisory opinions under Article 96 of the Charter. It has further
been argued that the Committee does not have any activities of its own
which might enable it to qualify as an organ authorized to request advi-
sory opinions on legal questions arising within the scope of its activities.

16. Article 7 of the Charter, under the heading ‘‘Organs’”’, after naming
the six principal organs of the United Nations in paragraph 1, provides
in the most general terms in paragraph 2: ‘‘Such subsidiary organs as
may be found necessary may be established in accordance with the present
Charter.” Article 22 then expressly empowers the General Assembly to
“establish such subsidiary organs as it deems necessary for the perfor-
mance of its functions”. The object of both those Articles is to enable the
United Nations to accomplish its purposes and to function effectively.
Accordingly, to place a restrictive interpretation on the power of the
General Assembly to establish subsidiary organs would run contrary to
the clear intention of the Charter. Article 22, indeed, specifically leaves it
to the General Assembly to appreciate the need for any particular organ,
and the sole restriction placed by that Article on the General Assembly’s

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power to establish subsidiary organs is that they should be “‘necessary
for the performance of its functions”.

17. In its Opinion on the Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal, it is true, the Court expressly
held that the Charter ‘‘does not confer judicial functions on the General
Assembly” and that, when it established the Administrative Tribunal, it
“was not delegating the performance of its own functions” U.C.J/.
Reports 1954, at p. 61). At the same time, however, the Court pointed
out that under Article 101, paragraph !, of the Charter the General
Assembly is given power to regulate staff relations, and it held that this
power included ‘‘the power to establish a tribunal to do justice between
the Organization and the staff members” (ibid., at p. 58). From the above
reasoning it necessarily follows that the General Assembly’s power to
regulate staff relations also comprises the power to create an organ
designed to provide machinery for initating the review by the Court of
judgments of such a tribunal.

18. Nor does it appear to the Court that there is substance in the
suggestion that the particular constitution of the Committee would
preclude it from being considered an ‘‘organ”” of the United Nations.
As provided in paragraph 4 of Article 11, the Committee is composed of
“the Member States the representatives of which have served on the
General Committee of the most recent regular session of the General
Assembly”. But this provision is no more than a convenient method of
establishing the membership of the Committee, which was set up as a
separate committee invested with its own functions distinct from those
of the General Committee. Paragraph 4, indeed, underlined the indepen-
dent character of the Committee by providing that it should establish
its own rules. These it drew up at its first meeting, amending them at later
meetings. Accordingly, the Court sees no reason to deny to the Committee
the character of an organ of the United Nations which the General
Assembly clearly intended it to possess.

19. Article 96, paragraph 2, of the Charter, empowers the General
Assembly to authorize organs of the United Nations to “request advisory
opinions of the Court on legal questions arising within the scope of
their activities”. In the present instance paragraph 4 of Article 11 of the
Statute of the Administrative Tribunal expressly states that the Committee
“For the purpose of this article . ..is... authorized under paragraph 2
of Article 96 of the Charter to request advisory opinions of the Court”.
These two provisions, prima facie, suffice to establish the competence of
the Committee to request advisory opinions of the Court. The point has
been raised, however, as to whether under Article 11 of the Statute of the
Administrative Tribunal the Committee has any activities of its own
which enable it to be considered as requesting advisory opinions ‘‘on
legal questions arising within the scope of [its] activities”. Thus, the view
has been expressed that the Committee has no other activity than to

1]
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request advisory opinions, and that the “legal questions” in regard to
which Article 11 authorizes it to request an opinion arise not within the
scope of “its activities” but of those of another organ, the Administrative
Tribunal.

20. The functions entrusted to the Committee by paragraphs 1 and 2 of
Article 1] are: to receive applications which formulate objections to judge-
ments of the Administrative Tribunal on one or more of the grounds set
out in paragraph | and which ask the Committee to request an advisory
opinion; to decide within 30 days whether or not there is a substantial
basis for the application; and, if it so decides, to request an advisory
opinion of the Court. The scope of the activities of the Committee which
result from these functions is, admittedly, a narrow one. But the Com-
mittee’s activities under Article 11 have to be viewed in the larger context
of the General Assembly’s function in the regulation of staff relations of
which they form a part. This is not a delegation by the General Assembly
of its own power to request an advisory opinion; it is the creation of a
subsidiary organ having a particular task and invested it with the power
to request advisory opinions in the performance of that task. The mere
fact that the Committee’s activities serve a particular, limited, purpose
in the General Assembly’s performance of its function in the regulation
of staff relations does not prevent the advisory jurisdiction of the Court
from being exercised in regard to those activities; nor is there any indi-
cation in Article 96 of the Charter of any such restriction upon the General
Assembly’s power to authorize organs of the United Nations to request
advisory opinions.

21. In fact, the primary function of the Committee is not the requesting
of advisory opinions, but the examination of objections to judgements in
order to decide in each case whether there is a substantial basis for the
application so as to call for a request for an advisory opinion. If it finds
that there is not such a substantial basis for the application the Committee
rejects the application without requesting an opinion of the Court. When
it does find that there is a substantial basis for the application, the legal
questions which the Committee then submits to the Court clearly arise
out of the performance of this primary function of screening the applica-
tions presented to it. They are therefore questions which, in the view of
the Court, arise within the scope of the Committee’s own activities; for
they arise not out of the judgements of the Administrative Tribunal but
out of objections to those judgements raised before the Committee itself.

22. True, Article 11 does not make it part of the Committee’s function
to implement any opinion given by the Court in response to the Com-
mittee’s request ; for under paragraph 3 of that Article the implementation
of the Court’s opinions is a matter for the Secretary-General and the
Administrative Tribunal. But this does not change the fact that the
questions which are the subject of the Committee’s requests for advisory
opinions are legal questions “arising”” within the scope of its activities.
All that is necessary for a question to qualify under Article 96, paragraph
2, of the Charter is that it must be a legal one and must arise out of the

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activities of the organ concerned. In the present case, the Committee’s re-
quest is for an advisory opinion regarding alleged failure by the Adminis-
trative Tribunal to exercise jurisdiction vested in it and fundamental errors
in procedure which it is alleged to have committed. These are questions
which by their very nature are legal questions similar in kind to those
which the Court in its 1956 Opinion in the Unesco case considered as
constituting legal questions within the meaning of Article 96 of the
Charter. Moreover, there is nothing in Article 96 of the Charter or
Article 65 of the Statute of the Court which requires that the replies to the
questions should be designed to assist the requesting body in its own
future operations or which makes it obligatory that the effect to be given
to an advisory opinion should be the responsibility of the body requesting
the opinion,

23. In the light of the foregoing considerations, the Court concludes
that the Committee on Applications for Review of Administrative
Tribunal Judgements is an organ of the United Nations, duly constituted
under Articles 7 and 22 of the Charter, and duly authorized under Article
96, paragraph 2, of the Charter to request advisory opinions of the Court
for the purpose of Article 11 of the Statute of the United Nations Adminis-
trative Tribunal. It follows that the Court is competent under Article 65
of its Statute to entertain a request for an advisory opinion from the
Committee made within the scope of Article 11 of the Statute of the
Administrative Tribunal.

* *

24, Article 65 of the Statute is, however, permissive and, under it,
the Court’s power to give an advisory opinion is of a discretionary
character. In exercising this discretion, the Court has always been
guided by the principle that, as a judicial body, it is bound to remain
faithful to the requirements of its judicial character even in giving
advisory opinions (see, e.g., Judgments of the Administrative Tribunal
of the ILO upon Complaints Made against Unesco, Advisory Opinion,
C.J. Reports 1956, p. 84: Constitution of the Maritime Safety Committee
of the Inter-Governmental Maritime Consultative Organisation, Advisory
Opinion, I.C.J. Reports 1960, p. 153). During the debates which preceded
the adoption of General Assembly resolution 957 (X) and the introduction
of Article 11 into the Statute of the Administrative Tribunal, doubts
were expressed by some delegations concerning certain features of the
procedure established by Article 11 precisely from the point of view of
the Court’s judicial character. The Court will, therefore, now consider
whether, although it is competent to give the opinion requested, these
features of the procedure established by Article 11 are of such a character
as should lead it to decline to answer the request.

* *

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176 APPLICATION FOR REVIEW (ADVISORY OPINION)

25. One objection that has been taken to Article 11 is that it insertsa
political organ into the judicial process for settling disputes between staff
members and the Organization. The Administrative Tribunal being a
judicial organ, it is incompatible with the nature of the judicial process,
so it has been suggested, that a political organ should be involved in the
judicial review of its judgements. Certainly, being composed of member
States, the Committee is a political organ. Its functions, on the other hand,
are merely to make a summary examination of any objections to judge-
ments of the Tribunal and to decide whether there is a substantial basis
for the application to have the matter reviewed by the Court in an advisory
opinion. These are functions which, in the Court’s view, are normally
discharged by a legal body. But there is no necessary incompatibility
between the exercise of these functions by a political body and the
requirements of the judicial process, inasmuch as these functions merely
furnish a potential link between two procedures which are clearly
judicial in nature. In the Court’s view, the compatibility or otherwise of
any given system of review with the requirements of the judicial process
depends on the circumstances and conditions of each particular system.

26. In the present instance, where recourse is to be made to the Inter-
national Court of Justice, it is understandable that the General Assembly
should have considered it necessary to establish machinery ‘for the
purpose of ensuring that only applications for review having a substantial
basis should be made the subject of review proceedings by the Court.
At the same time, the Court notes that the Rules which the Committee
has adopted take account of the quasi-judicial character of its functions.
Thus, these Rules provide that the other party to the proceedings before
the Administrative Tribunal may submit its comments with respect to
the application, and that, if the Committee invites additional information
or views, the same opportunity to present them is afforded to all parties
to the proceedings. This means that the decisions of the Committee are
reached after an examination of the opposing views of the interested
parties.

27. The reports of the Committee’s meetings reveal that it has dealt
with 16 applications for the review of judgements of the Administrative
Tribunal, all of which have been made by staff members and none by the
Secretary-General or by a member State. The application which is the
subject of the present request for an advisory opinion was the fourteenth
received by the Committee, and up to date it is the only one in regard to
which the Committee has decided that there was “a substantial basis for
the application” calling for recourse to the advisory jurisdiction of the
Court. It is for the Committee to interpret the function entrusted to
it by paragraph 2 of Article 11, under which it has to ‘‘decide whether
or not there is a substantial basis for the application”. In dealing with ap-
plications the practice of the Committee has been to limit itself to a
bare report of its decision as to whether or not there was a substantial
basis for the application and whether or not, in consequence, it should

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request an advisory opinion. The decisions taken by the Committee
are communicated to all member States, to the parties to the
proceedings, and to the Administrative Tribunal. However, the re-
ports do not state the grounds of the applicant’s objections to the
Tribunal’s judgement or the reasons which led the Committee to reject
or, as in the present instance, to endorse the application. The Committee
meets in closed session, and does not draw up summary records of its
proceedings concerning applications, and in the present instance the Court
has been informed that these proceedings are regarded as confidential.

28. While it might be desirable for the applicant to receive some
indication of the grounds for the Committee’s decision in those cases in
which the application is rejected, the fact that the Committee’s reports
are confined to a bare statement of the decision reached does not deprive
the review proceedings as a whole of their judicial character, nor constitute
a valid reason for the Court’s declining to answer the present request. A
refusal by the Court to play its role in the system of judicial review set up
by the General Assembly would only have the consequence that this
system would not operate precisely in those cases in which the Committee
has found that there is a substantial basis for the objections which have
been raised against a judgement. When the Committee reaches such an
affirmative decision there is no occasion for a reasoned statement of its
views or a public record of its proceedings; for the Committee’s affir-
mative decision, based only on a prima facie appreciation of the objections,
is merely a necessary condition for the opening of the Court’s advisory
jurisdiction. It is then for the Court itself to reach its own, unhampered,
opinion as to whether the objections which have been raised against a
judgement are well founded or not and to state the reasons for its opinion.

29. Other than what may be derived from the present proceedings,
there is no information before the Court regarding the criteria followed
by the Committee in appreciating whether there is ‘‘a substantial basis”
for an application. The statistics of the Committee’s decisions may
appear to suggest the conclusion that, in applications made by staff
members, it has adopted a strict interpretation of that requirement. But
such a conclusion, even if established, would not suffice by itself to render
the procedure under Article 11 of the Tribunal’s Statute incompatible
with the principles governing the judicial process. It would, on the other
hand, be incompatible with these principles if the Committee were not
to adopt a uniform interpretation of Article 11 also in cases in which the
applicant was not a staff member. Furthermore, the legislative history
of Article 11 shows that recourse to the International Court of Justice
was to be had only in exceptional cases,

30. In the light of what has been said above, it does not appear that
there is anything in the character or operation of the Committee which
requires the Court to conclude that the system of judicial review established
by General Assembly resolution 957 (X) is incompatible with the general
principles governing the judicial process.

* *

15
178 APPLICATION FOR REVIEW (ADVISORY OPINION)

31. The Court does not overlook that Article 11 provides for the right
of individual member States to object to a judgement of the Adminis-
trative Tribunal and to apply to the Committee to initiate advisory
proceedings on the matter; and that during the debates in 1955 the
propriety of this provision was questioned by a number of delegations.
The member State, it was said, would not have been a party to the pro-
ceedings before the Administzative Tribunal, and to allow it to initiate
proceedings for the review of the judgement would, therefore, be contrary
to the general principles governing judicial review. To confer such a
right on a member State, it was further said, would impinge upon the
rights of the Secretary-General as chief administrative officer and conflict
with Article 100 of the Charter. It was also suggested that, in the case of
an application by a member State, the staff member would be in a position
of inequality before the Committee. These arguments introduce additional
considerations which would call for close examination by the Court ifit
should receive a request for an opinion resulting from an application to
the Committee by a member State. The Court is not therefore to be under-
stood as here expressing any opinion in regard to any future proceedings
instituted under Article 11 by a member State. But these additional
considerations are without relevance in the present proceedings in which
the request for an opinion results from an application to the Committee
by a staff member. The mere fact that Article 11 provides for the possi-
bility of a member State applying for the review of a judgement does not
alter the position in regard to the initiation of review proceedings as
between a staff member and the Secretary-General. Article 11, the Court
emphasizes, gives the same rights to staff members as it does to the
Secretary-General to apply to the Committee for the initiation of review
proceedings.

32. Even so, the Court has still to consider objections which have been
raised against the use of advisory jurisdiction for the review of Adminis-
trative Tribunal judgements because of what was said to be an inherent
inequality under the Statute of the Court between the staff member, on
the one hand, and the Secretary-General and member States, on the
other. Personal appearance, it was argued, was an essential feature of due
process of law, but under Article 66 of the Statute, only States and inter-
national organizations were entitled to submit statements to the Court.
It was also maintained that a mere expression of a hope by the General
Assembly in the proposed resolution (see para. 36 below) that member
States and the Secretary-General would forgo their right to an oral
hearing was not a sufficient guarantee of equality; nor was it thought
appropriate that an individual should be dependent on another party
to the dispute for the presentation of his views to the Court.

33. In the year following the adoption of Article 11, as it happened,
the Court was called upon to examine the compatibility with its judicial

16
179 APPLICATION FOR REVIEW (ADVISORY OPINION)

character of the use of the advisory jurisdiction for review of Administra-
tive Tribunal judgements, though in the different context of Article XII
of the Statute of the ILO Administrative Tribunal. Despite the different
context, the views then expressed by the Court in its Opinion con-
cerning Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against Unesco U.C.J. Reports 1956, p. 77) are, in cer-
tain respects, apposite for the purposes of the present Opinion.

34. The difficulty regarding the requirement of equality between staff
members and their organization in review proceedings involving the
Court’s advisory jurisdiction arises from the terms of Article 66 of the
Statute of the Court. This Article makes provision for the submission of
written or oral statements only by States and international organizations.
In the 1956 proceedings the difficulty was recognized by Unesco, whose
Legal Counsel notified counsel for the staff members that the Organization
would transmit directly to the Court, without checking the contents, any
observations or information that they might desire to present. The Court
indicated that it saw no objection to this procedure, and counsel for the
staff members notified Unesco of his agreement to it. Subsequently, the
Court informed the States and organizations which had been considered
likely to be able to furnish information on the question before the Court
that it did not contemplate holding public hearings in the case. At the
same time, it fixed a date within which further comments might be
submitted in writing, and Unesco informed counsel for the staff members
of its readiness to transmit to the Court such further observations as they
might wish to present. In the light of the procedure adopted, the Court
concluded that the requirements of equality had been sufficiently met to
enable it to comply with the request for an Opinion. It observed:

“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 compelling reason why the
Court should not lend its assistance in the solution of a problem
confronting a specialized agency of the United Nations authorized

17
180 APPLICATION FOR REVIEW (ADVISORY OPINION)

to ask for an Advisory Opinion of the Court. Notwithstanding the
permissive character of Article 65 of the Statute in the matter of ad-
visory 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 Admini-
strative Tribunal for the judicial protection of officials. Any see-
ming or nominal absence of equality ought not to be allowed to ob-
scure or to defeat that primary object.” (1.C.J. Reports 1956, p. 86.)

35. In that Opinion, therefore, the Court took the view that any absence
of equality between staff members and the Secretary-General inherent
in the terms of Article 66 of the Statute of the Court is capable of being
cured by the adoption of appropriate procedures which ensure actual
equality in the particular proceedings. In those advisory proceedings,
instituted under the Statute of the ILO Administrative Tribunal, the
adoption of the appropriate procedures was entirely dependent upon
the will of the Organization concerned, Unesco; and yet the Court
considered that ‘‘any seeming or nominal absence of equality” inherent
in Article 66 of the Court’s Statute ought not to prevent it from complying
with the request for an opinion. True, certain judges considered that the
absence of oral proceedings constituted either an insuperable or a serious
obstacle to the Court’s complying with the request for an advisory
opinion. But that view was not shared by the Court. Moreover, in the
present proceedings, instituted under the Statute of the United Nations
Administrative Tribunal, the procedural position of the staff member is
more secure. Paragraph 2 of Article 11 expressly provides that, when
the Committee requests an advisory opinion, the Secretary-General shall
arrange to transmit to the Court the views of the staff member concerned.
The implication is that the staff member is entitled to have his views
transmitted to the Court without any control being exercised over the
contents by the Secretary-General; for otherwise the views would not in
a true sense be the views of the staff member concerned. Thus, under
Article 11, the equality of a staff member in the written procedure before
the Court is not dependent on the will or favour of the Organization,
but is made a matter of right guaranteed by the Statute of the Adminis-
trative Tribunal.

36. In resolution 957 (X) the General Assembly sought also to remedy
the inequality in regard to the oral procedure between staff members, on
the one hand, and member States and the Secretary-General, on the
other, which exists in Article 66 of the Court’s Statute. In that resolution,
after adopting the text of the new Article 11 of the Statute of the Adminis-
trative Tribunal, it added the recommendation:

‘.. that Member States and the Secretary-General should not make
oral statements before the International Court of Justice in any

18
181 APPLICATION FOR REVIEW (ADVISORY OPINION)

proceedings under the new article 11 of the Statute of the Adminis-
trative Tribunal adopted under the present resolution”’.

As to this recommendation, the Court observes that, when under Article
66, paragraph 2, of its Statute written statements have been presented to
the Court in advisory proceedings, the further procedure in the case, and
in particular the holding of public hearings for the purpose of receiving
oral statements, is a matter within the discretion of the Court. In exer-
cising that discretion, the Court will have regard both to the provisions
of its Statute and to the requirements of its judicial character. But it does
not appear to the Court that there is any general principle of law which
requires that in review proceedings the interested parties should necessarily
have an opportunity to submit oral statements of their case to the review
tribunal. General principles of law and the judicial character of the
Court do require that, even in advisory proceedings, the interested parties
should each have an opportunity, and on a basis of equality, to submit
all the elements relevant to the questions which have been referred to the
review tribunal. But that condition is fulfilled by the submission of
written statements. Accordingly, the Court sees no reason to resile from
the position which it took in its Opinion in the Unesco case that, if the
Court is satisfied that adequate information has been made available to it,
the fact that no public hearings have been held is not a bar to the Court’s
complying with the request for an opinion.

37. In the present proceedings, in accordance with Article 65, para-
graph 2, of the Statute of the Court, the Secretary-General supplied the
Court with a large dossier of relevant documents, including copies of
documents which were before the Administrative Tribunal and of those
submitted by Mr. Fasla to the Committee; he also submitted a written
statement to the Court, and subsequently submitted written comments
on the statement of the views of Mr. Fasla, together with some additional
documents. Mr. Fasla, on his side, was accorded every opportunity to
present his views to the Court in writing on a basis of equality with the
Secretary-General, and this opportunity he used to the full. First, through
the instrumentality of the Secretary-General, a written statement of his
views was transmitted to the Court, together with an annexed document.
Some two months later and by leave of the President of the Court, Mr. Fasla
transmitted by the same channel a corrected, but at the same time much
amplified, statement of his views, together with further documents.
Finally, within a further time-limit fixed by the President, he transmitted
to the Court his written comments on the Secretary-General’s written
statement, and to these comments, signed by his counsel, there were
appended a “personal statement” by Mr. Fasla and additional documents.
As to oral proceedings, by a letter of 6 October 1972 the United Nations
and its member States were informed that it was not contemplated that
public hearings for the submission of oral statements would be held in
the case. Subsequently, by a letter dated 15 November 1972, that is,

19
182 APPLICATION FOR REVIEW (ADVISORY OPINION)

prior to submitting his corrected statement, Mr. Fasla transmitted to
the Court a request to be permitted to make an oral statement. On
25 January 1973 the Court decided not to hear oral statements and on the
same date telegraphed its decision to the United Nations Legal Counsel.
Mr. Fasla having renewed his request in a letter of 29 January 1973, the
Court adhered to its decision not to hold a public hearing for the purpose
of receiving oral statements.

38. In advisory proceedings, as previously mentioned, it lies within
the entire discretion of the Court to decide whether to obtain oral in
addition to written statements. It may be true that in the present proceed-
ings for the review of an Administrative Tribunal Judgement the questions
submitted to the Court relate to a contentious case between a staff member
and the Secretary-General. It may also be true that this aspect of the
proceedings is accentuated by the fact that Article 11, paragraph 3, of
the Tribunal’s Statute provides that the Secretary-General shall either
give effect to the opinion of the Court or request the Tribunal to convene
specially in order that it shall confirm its original judgement, or give a
new judgement, in conformity with the opinion of the Court. Nevertheless,
the proceedings before the Court are still advisory proceedings, in which
the task of the Court is not to retry the case but to reply to the questions
put to it regarding the objections which have been raised to the Judgement
of the Administrative Tribunal. The Court is, therefore, only concerned
to ensure that the interested parties shall have a fair and equal opportunity
to present their views to the Court respecting the questions on which its
opinion is requested and that the Court shall have adequate information
to enable it to administer justice in giving its opinion. The Court is
satisfied that these requirements have been met in the present proceedings.

39. Again, the fact that under Article 11, paragraph 3, of the Tribunal’s
Statute the opinion given by the Court is to have a conclusive effect with
respect to the matters in litigation in that case does not constitute any
obstacle to the Court’s replying to the request for an opinion. Such an
effect, it is true, goes beyond the scope attributed by the Charter and by
the Statute of the Court to an advisory opinion. It results, however, not
from the advisory opinion itself but from a provision of an autonomous
instrument having the force of law for the staff members and the Secretary-
General. Under Article XII of the Statute of the ILO Administrative
Tribunal the Court’s opinion is expressly made binding. In alluding to
this consequence the Court, in the Unesco case, observed:

“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.” (1.C.J.
Reports 1956, p. 84.)

20
183 APPLICATION FOR REVIEW (ADVISORY OPINION)

Similarly, the special effect to be attributed to the Court’s opinion by
Article 11 of the Statute of the United Nations Administrative Tribunal
furnishes no reason for refusing to comply with the request for an opinion
in the present instance.

40. The Court has repeatedly stated that a reply to a request for an
advisory opinion should not, in principle, be refused and that only com-
pelling reasons would justify such a refusal (see, e.g., Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against Unesco,
Advisory Opinion, I.C.J. Reports 1956, p. 86; Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 27). Inthe light of what has been said above,
it does not appear to the Court that there is any compelling reason why it
should decline to reply to the request in the present instance. On the contra-
ry, as in the 1956 proceedings concerning the ILO Administrative Tribunal,
the Court considers that it should not ‘“‘adopt inthis matter a negative atti-
tude which would imperil the working of the régime established by the Sta-
tute of the Administrative Tribunal for the judicial protection of officials”
(.C.J. Reports 1956, p. 86). Although the records show that Article 11 was
not introduced into the Statute of the United Nations Administrative Tri-
bunal exclusively, or even primarily, to provide judicial protection for offi-
cials, they also show that steps were, nevertheless, taken to ensure that the
régime established by it should provide such protection. Moreover, it
has so far been officials alone who have sought to invoke the régime of
judicial protection established by Article 11. Accordingly, as already
indicated, although the Court does not consider the review procedure
provided by Article 11 as free from difficulty, it has no doubt that, in the
circumstances of the present case, it should comply with the request by
the Committee on Applications for Review of Administrative Tribunal
Judgements for an advisory opinion.

* *

41. The scope of the questions on which, therefore, the Court has now
to advise is determined first, by Article 11 of the Statute of the Adminis-
trative Tribunal, which specifies the grounds on which a judgement of the
Tribunal may be challenged through the medium of the advisory juris-
diction, and, secondly, by the terms of the request to the Court. Under
Article 11 an application may be made to the Committee for the purpose
of obtaining the review by the Court of a judgement of the Tribunal on
any of the following grounds, namely that the Tribunal has:

(i) “exceeded its jurisdiction or competence”’;
(ii) “failed to exercise jurisdiction vested in it”;
(iii) “erred on a question of law relating to the provisions of the Charter
of the United Nations”; or

21
184 APPLICATION FOR REVIEW (ADVISORY OPINION)

(iv) “committed a fundamental error in procedure which has occasioned
a failure of justice.”

Consequently, the Committee is authorized to request, and the Court to
give, an advisory opinion only on legal questions which may properly be
considered as falling within the terms of one or more of those four
“grounds”. Again, under Article 65 of the Court’s Statute, its competence
to give advisory opinions extends only to legal questions on which its
opinion has been requested. The Court may interpret the terms of the
request and determine the scope of the questions set out in it. The Court
may also take into account any matters germane to the questions
submitted to it which may be necessary to enable it to form its opinion.
But in giving its opinion the Court is, in principle, bound by the
terms of the questions formulated in the request (Voting Procedure on
Questions relating to Reports and Petitions concerning the Territory
of South West Africa, Advisory Opinion, I.C.J. Reports 1955, pp. 71-72;
Judgments of the Administrative Tribunal of the ILO upon Complaints Made
against Unesco, Advisory Opinion, I.C.J. Reports 1956, pp. 98-99). In the
present instance, the questions formulated in the request refer to only
two of the four “grounds” of challenge specified in Article 11 of the
Administrative Tribunal’s Statute, namely, failure to exercise jurisdiction
and fundamental error in procedure. Consequently, it is only objections
to Judgement No. 158 based on one or other of those two grounds which
are within the terms of the questions put to the Court.

42, The text of the request which is now before the Court has been set
out at the beginning of this Opinion. The two questions which it contains
read as follows:

“(1) Has the Tribunal failed to exercise jurisdiction vested in it as
contended in the applicant’s application to the Committee on
Applications for Review of Administrative Tribunal Judgements
(A/AC.86/R.59)?

(2) Has the Tribunal committed a fundamental error of procedure
which has occasioned a failure of justice as contended in the
applicant’s application to the Committee on Applications for
Review of Administrative Tribunal Judgements (A/AC.86/
R.59)?”

The document mentioned in each question is Mr. Fasla’s formal appli-
cation to the Committee in which he set out his grounds of objection
to Judgement No. 158 and his contentions in support of those grounds.
Thus the questions are specifically limited to the grounds of objec-
tion and the contentions advanced by him in his application to the
Committee. He also formulated four questions at the end of his application
with the request that they be submitted to the Court. These questions
referred only to two of the four grounds of objection envisaged by
Article 11 of the Tribunal’s Statute, namely failure to exercise jurisdiction
and fundamental error in the procedure having occasioned a failure of

22
185 APPLICATION FOR REVIEW (ADVISORY OPINION)

justice; the other two grounds recognized in Article 11—excess of
jurisdiction and error on a question of law relating to the provisions of
the Charter—were not raised by the applicant before the Committee.
The two grounds advanced by the applicant before the Committee are
therefore identical in substance with those upon which the opinion of the
Court has been requested.

43. In order to determine the scope of the questions put to the Court
and the framework within which the Court has to give its opinion, it is neces-
sary to have regard to Mr. Fasla’s contentions before the Committee. As,
however, the implications of these contentions can be appreciated only
in the context of the claims presented by him to the Administrative
Tribunal and of the disposal of those claims by the Tribunal, the Court
must first set out his claims before the Tribunal and the Tribunal’s
decisions in regard to them.

44. Mr. Fasla instituted his proceedings against the Secretary-General
before the Administrative Tribunal by an application, dated 31 December
1970, in which he requested it “to order the following measures”:

“(a) As a preliminary measure, production by the Respondent of
the report by Mr. Satrap, Chief, Middle East Area Division,
UNDP on his investigation of the UNDP office in Yemen in
February 1969.

(b) As a preliminary measure, production by the Respondent of
the report by Mr. Hagen, Consultant to the UNDP Adminis-
trator, on his investigation of the UNDP office in Yemen in
March 1969.

(c) As a preliminary measure, production by the Respondent of
the report by Mr. Hagen, UNDP Special Representative in
Yemen, concerning the Applicant’s performance, prepared at
the request of the UNDP in the summer of 1969.

(d) Restoration of the Applicant to the status quo ante prevailing
in May 1969, by extending the Applicant’s last fixed-term
appointment for a further two years beyond 3! December
1969, with retroactive pay of salary and related allowances;
alternatively, a payment by the Respondent to the Applicant
of three years’ net base salary.

(e) Correction and completion of the Applicant’s Fact Sheet
which is intended for circulation both within and outside the
UNDP, with all the required Periodic Reports and evaluations
of work; alternatively payment by the Respondent to the
Applicant of two years’ net base salary.

(f) Invalidation of the Applicant’s Periodic Report covering his

23
186

24

(g)

(h)

(i)

(i)

(k)

(1)

APPLICATION FOR REVIEW (ADVISORY OPINION)

service in Yemen, prepared in September 1970; alternatively,
payment by the Respondent to the Applicant of two years’ net
base salary.

Further serious efforts by the Respondent to place the
Applicant in a suitable post either within the UNDP or within
the United Nations Secretariat or within a UN Specialized
Agency; alternatively, payment by the Respondent to the
Applicant of two years’ net base salary.

As compensation for injury sustained by the Applicant as the
result of the repeated violation by the Respondent of Adminis-
trative Instruction ST/AI/115, payment by the Respondent
to the Applicant of two years’ net base salary.

As compensation for injury sustained by the Applicant as the
result of the continuous violation by the Respondent of his
obligation to make serious efforts to find an assignment for
the Applicant, payment by the Respondent to the Applicant of
two years’ net base salary.

As compensation for injury sustained by the Applicant as the
result of prejudice displayed against him, payment by the
Respondent to the Applicant of five years’ net base salary.

As compensation for the emotional and moral suffering
inflicted by the Respondent upon the Applicant, payment by
the Respondent to the Applicant of one Yemen rial.

As compensation for delays in the consideration of the
Applicant’s case, especially in view of the fact that no Joint
Appeals Board was in existence during the first four months
of 1969 since the Respondent had failed to appoint a Panel
of Chairmen, payment by the Respondent to the Applicant of
one year’s net base salary.

(m) Payment to the Applicant of the sum of $1,000.00 for expenses

(n)

in view of the fact that, although the Applicant was represented
by a member of the Panel of Counsel, the complexity of the
case necessitated the Applicant’s travel from California to
New York in May 1970 as well as frequent transcontinental
telephone calls to the Applicant’s Counsel before and after
that date.

As compensation for the damage inflicted by the Respondent
on the Applicant’s professional reputation and career prospects
as the result of the circulation by the Respondent, both within
and outside the United Nations, of incomplete and misleading
187 APPLICATION FOR REVIEW (ADVISORY OPINION)

information concerning the Applicant, payment by the
Respondent to the Applicant of five years’ net base salary.”

On 11 June 197! a supplement to the application was filed with the
Administrative Tribunal, whereby it was requested to order the following
additional measures:

“{a) As compensation for the further delay in the consideration of
the Applicant’s case early in 1971, payment by the Respondent
to the Applicant of one year’s net base salary.

(6) Recalculation by the Respondent of the Applicant’s salary and
allowances in Yemen on the basis of the actual duration of the
Applicant’s assignment there, and payment to the Applicant of
the difference between the recalculated amount and the amount
the Applicant received.

(c) As compensation for the illegal suspension of the Applicant
from duty, payment by the Respondent to the Applicant of
five years’ net base salary.”

45. Judgment was given by the Tribunal on 28 April 1972. In the body
of the Judgement the Tribunal noted that certain of Mr. Fasla’s requests
had been met and made a number of findings, some of which were
favourable and others unfavourable to his case. The precise terms of these
findings are given later in this Opinion.

46. On 26 May 1972 Mr. Fasla submitted an application to the
Committee, setting out his objections to the Judgement and asking the
Committee to request an advisory opinion of the Court. In his application,
as already mentioned, he objects that the Administrative Tribunal (1)
failed to exercise jurisdiction vested in it and (2) committed fundamental
errors in procedure which occasioned a failure of justice. He supports
each of these objections by a number of contentions in regard to alleged
defects in the Judgement. These contentions, to which further reference
will be made later, he groups together under three main heads: compen-
sation for injury to his professional reputation and employment oppor-
tunities: compensation for the costs incurred by him in presenting his
claims to the Joint Appeals Board and the Administrative Tribunal;
recalculation of his rate of remuneration while posted to Yemen. The
contentions advanced before the Committee cover a wide area of the
case before the Administrative Tribunal. Consequently, the Court finds
no reason to adopt a restrictive interpretation of the questions framed in
the request.

47. Under Article 11 of the Statute of the Tribunal, as already indi-
cated, the task of the Court is not to retry the case but to give its opinion
on the questions submitted to it concerning the objections lodged against
the Judgement. The Court is not therefore entitled to substitute its own

25
188 APPLICATION FOR REVIEW (ADVISORY OPINION)

opinion for that of the Tribunal on the merits of the case adjudicated
by the Tribunal. Its role is to determine if the circumstances of the case,
whether they relate to merits or procedure, show that any objection made
to the Judgement on one of the grounds mentioned in Article 11 is well
founded. In so doing, the Court is not limited to the contents of the
challenged award itself, but takes under its consideration all relevant
aspects of the proceedings before the Tribunal as well as all relevant
matters submitted to the Court itself by the staff member and by the
Secretary-General with regard to the objections raised against that
judgement. These objections the Court examines on their merits in the
light of the information before it.

48. Furthermore, as the Court pointed out in its Advisory Opinion in
the Unesco case, a challenge to an administrative tribunal judgment on
the ground of unauthorized assumption of jurisdiction cannot serve
simply as a means of attacking the tribunal’s decisions on the merits.
Speaking of Article XII of the Statute of the ILO Administrative Tribunal,
which recognizes only unauthorized assumption of jurisdiction and
fundamental fault in the procedure as grounds for attacking the judgments
of that tribunal, the Court said:

“The request for an Advisory Opinion under Article XL 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 jurisdiction cannot
properly be transformed into a procedure against the manner in
which jurisdiction has been exercised or against the substance of the
decision.” U.C.J. Reports 1956, pp. 98-99.)

So too, under Article 11 of the Statute of the United Nations Adminis-
trative Tribunal a challenge to a decision for alleged failure to exercise
jurisdiction of fundamental error in procedure cannot properly be
transformed into a proceeding against the substance of the decision.
This does not mean that in an appropriate case, where the judgement has
been challenged on the ground of an error on a question of law relating to
the provisions of the Charter, the Court may not be called upon to
review the actual substance of the decision. But both the text of Article 11
and its legislative history make it clear that challenges to Administrative
Tribunal judgements under its provisions were intended to be confined to
the specific grounds of objection mentioned in the Article.

*

49. Turning to the first question, the Court will now examine whether
the Tribunal has failed to exercise jurisdiction vested in it, as contended
in the application to the Committee.

26
189 APPLICATION FOR REVIEW (ADVISORY OPINION)

50. Article XIL of the Statute of the ILO Administrative Tribunal
speaks only of a challenge to ‘“‘a decision of the Tribunal confirming its
jurisdiction”, and does not make any mention of a failure of the Tribunal
to exercise its jurisdiction. Similarly, in the draft of Article 11 of the
United Nations Administrative Tribunal’s Statute recommended to the
General Assembly by the Special Committee on Review of Administrative
Tribunal Judgements, a challenge on this ground was contemplated only
if the Tribunal had “exceeded its jurisdiction or competence”. The
words ‘‘or that the Tribunal has failed to exercise jurisdiction vested in it”?
were added at the 499th meeting of the Fifth Committee on the proposal
of the Indian delegation, who had explained that:

“According to the text of the proposed new article 11, a review
might be requested on the ground that the Tribunal had exceeded
its jurisdiction or competence. There might, however, be cases
where the Tribunal had failed to exercise the jurisdiction it possessed
under the law; cases of errors in the exercise of jurisdiction were also
feasible. In Indian legislation reliefs analogous to review were
granted both where a tribunal exercised jurisdiction not vested in it by
law and where it failed to exercise jurisdiction vested in it by law,
provision thus being made not only for cases of excess of jurisdiction
but also for those of failure or neglect to exercise jurisdiction. (Em-
phasis added.)

This explanation appears to confirm that this additional ground for
challenging a judgement was regarded as having a comparatively narrow
scope; i.e., as concerned essentially with a failure by the Tribunal to put
into operation the jurisdictional powers possessed by it—rather than
with a failure to do justice to the merits in the exercise of those powers.
It further appears that in accepting failure to exercise jurisdiction as an
additional ground of challenge the General Assembly regarded it as
eiusdem generis with cases where the Tribunal had exceeded its juris-
diction or competence; and the Fifth Committee thus seems to have
viewed both excess and failure in the exercise of jurisdiction as essentially
concerned with matters of jurisdiction or competence in their strict
sense. In a more general way, the comparatively narrow scope intended
to be given to failure to exercise jurisdiction as aground of challenge is
confirmed by the legislative history of Article 11, which shows that the
grounds of challenge mentioned in the Article were envisaged as covering
only ‘“‘exceptional” cases.

51. In the Court’s view, therefore, this ground of challenge covers
situations where the Tribunal has either consciously or inadvertently
omitted to exercise jurisdictional powers vested in it and relevant for its
decision of the case or of a particular material issue in the case. Clearly,
in appreciating whether or not the Tribunal has failed to exercise relevant
jurisdictional powers, the Court must have regard to the substance of

27
190 APPLICATION FOR REVIEW (ADVISORY OPINION)

the matter and not merely to the form. Consequently, the mere fact that the
Tribunal has purported to exercise its powers with respect to any particu-
lar material issue will not be enough: it must in fact have applied them to
the determination of the issue. No doubt, there may be borderline cases
where it may be difficult to assess whether the Tribunal has in any true
sense considered and determined the exercise of relevant jurisdictional
powers. But that does not alter the duty of the Court to appreciate in
each instance, in the light of all pertinent elements, whether the Tribunal
did or did not in fact exercise with respect to the case the powers vested
in it and relevant to its decision.

* *

52. The first contention in the application to the Committee is that
the Tribunal did not fully consider and pass upon the claim for damages
for injury to professional reputation and career prospects. The claim
referred to is that set out in plea (7) in the application to the Tribunal,
in the following words:

“As compensation for the damage inflicted by the Respondent
on the Applicant’s professional reputation and career prospects
as the result of the circulation by the Respondent, both within and
outside the United Nations, of incomplete and misleading informa-
tion concerning the Applicant, payment by the Respondent to the
Applicant of five years’ net base salary.”

In support of this contention Mr. Fasla invokes Articles 2 and 9 of the
Tribunal’s Statute, maintaining that under their provisions the Tribunal
was competent and had jurisdiction to award compensation to him for
such injuries; and that it failed to exercise suchcompetence and jurisdiction
in not awarding him either damages or specific relief. In support of that
proposition he maintains that a claim to compensation for damage to his
professional reputation and career prospects was specifically pleaded;
that such a claim fell within the Tribunal’s competence under Article 2,
paragraph 1, of its Statute; that the Tribunal did not even discuss the
claim, although it found that his personnel record and fact-sheet had
been maliciously distorted; that the Tribunal had before it matters which
evidenced the damage flowing from that distortion; that the damage was
not remote but the direct and natural consequence of the distortion;
that the malicious distortion of his personnel record and fact-sheet was
a wrongful act attributable in law to the Secretary-General; and that the
Tribunal, having taken cognizance of the wrongful act and yet having
provided no remedy for the damage occasioned thereby, obviously
failed to exercise its jurisdiction.

53. The validity of this contention cannot be adequately considered
without taking account of all the claims submitted by the applicant to

28
19] APPLICATION FOR REVIEW (ADVISORY OPINION)

the Administrative Tribunal and the latter’s disposal of those claims. In
all, as previously indicated, the applicant had presented no less than 17
separate pleas. Three of those were of a preliminary character, requesting
the production of certain reports; the remaining 14 sought substantial
relief in the form either of a specific remedy or of monetary compensation.
As to the three pleas of a preliminary character, the Tribunal in its
Judgement:

(i) noted that the respondent had produced the first report;

(ii) noted that the second report was in the applicant’s “official status
file’ and therefore available to the counsel of the parties; that a
letter, which the applicant had explained he had had in mind when
he requested the production of “Mr. Hagen’s report”, had been
supplied confidentially to the Tribunal; and that the Tribunal had

_made available to the applicant the few lines of the letter which it
had held to be relevant;

(iii) stated that, the Tribunal having requested the production of the
third report, the respondent had replied that it did not have such
areport inthe files of the body concerned ; and that the Tribunal could
only take note of that reply.

As to the pleas for substantial relief, the Tribunal gave two decisions in
the applicant’s favour, namely:

“1. The Respondent shall pay the Applicant a sum equal to six
months’ net base salary:
2. The periodic report prepared for the period June 1968 to March
1969 is invalid and shall be treated as such.”

In a third decision, while not upholding the applicant’s claim to recal-
culation of his emoluments during his period of service in Yemen, the
Tribunal took note in paragraph XV of its Judgement of the respondent’s
agreement, pursuant to a recommendation of the Joint Appeals Board, to
make the applicant “tan ex gratia payment in the amount of any losses
that he could show he had suffered as a result of his precipitate recall
from Yemen’. On this point, after declaring that the applicant was
entitled to take advantage of the possibility thus offered, the Tribunal
made formal provision for giving effect to that decision:

“3. Any requests for payment made in accordance with paragraph
XV above shall be submitted, together with the necessary
supporting evidence, by the Applicant to the Respondent,
within a period of two months from the date of this judgement.”

The Tribunal concluded its Judgement with a comprehensive rejection of
the applicant’s other claims, stating that:

“4. The other requests are rejected.”
29
192 APPLICATION FOR REVIEW (ADVISORY OPINION)

54, The first contention must also be considered in the light of three
other factors. First, there was a considerable degree of overlap in the
14 claims to substantial relief, in the sense that a number of them appeared
to be claims to different relief founded on the same act or omission.
Yet the staff member did not indicate whether and, if so, to what extent
the claims were to be considered as alternative or cumulative. Secondly,
in its Judgement the Tribunal set out all his claims, recited the facts of
the case at considerable length and gave a detailed summary of the
contentions of both parties. Moreover, the recital of facts included a
comprehensive account of the two proceedings before the Joint Appeals
Board in which there had been extensive consideration of various aspects
of the case. Thirdly, the Tribunal’s own analysis of the case was substan-
tial, even if it did not deal specifically with each of the claims presented.
In its analysis it concentrated on what it considered to be the relevant
issues and those in regard to which it found substance in these claims,
namely (i) that the Staff Rules concerning periodic reports had not been
properly complied with and that, by way of consequence, the commitment
of the Secretary-General to make serious efforts to place the applicant in a
suitable post had not been correctly fulfilled (paras. IV-VII of the Judge-
ment), and (ii) that a report filed in 1970 as a result of the recommendations
of the Joint Appeals Board was motivated by prejudice against the applicant
(paras. VIII-XU). After that examination of the main contentions of the
applicant concerning the violation of Staff Rules and the prejudice
evidenced in the 1970 report on his performance in Yemen, the Tribunal,
in paragraph XIII of the Judgement, examined the question of the
damages to be awarded as compensation, in lieu of the specific perfor-
mance of the obligations which the respondent had failed to observe. The
remainder of the substantive part of the Judgement related to the
additional claims filed in a supplementary application concerning
recalculation of remuneration and alleged illegal suspension from duty
(paras. XIV and XV), the claim for damages as a result of delays in
considering the case (para. XVI) and, finally, the question of costs
(para. XVID.

55. In organizing the structure of its Judgement, the Administrative
Tribunal followed the logical sequence of examining the existence of
violations of substantive law before entering into the question of compen-
sation for damage. Article 2, paragraph 1, of the Tribunal’s Statute gives
it jurisdiction “to hear and pass judgement upon applications alleging
non-observance of contracts of employment of staff members of the
Secretariat of the United Nations or of the terms of appointment of
such staff members”. This same paragraph adds: “The words ‘contracts’
and ‘terms of appointment’ include all pertinent regulations and rules
in force at the time of alleged non-observance, including the staff pension
regulations.” A subsequent Article refers successively to the specific relief

30
193 APPLICATION FOR REVIEW (ADVISORY OPINION)

which may be granted by the Tribunal and to the award of monetary
compensation to be paid in lieu of such specific relief (Art. 9). The
Tribunal first determines the non-observance of contracts of employment
or of staff regulations before it examines the question of rescission of a
decision, or specific performance of an obligation. The latter questions in
their turn take priority over the fixing of monetary compensation. The
sequence followed by the Administrative Tribunal in the Judgement under
consideration thus corresponds to the provisions of its Statute. It can
hardly be denied, however, that in this particular case the structure
adopted created the difficulty that some of the applicant’s pleas, though
covered by the general consideration of the basic questions of non-
observance of regulations, of rescission and of damage, were not expressly
mentioned or specifically dealt with in the paragraphs in which the
Tribunal developed its reasoning and analysed what it deemed to be the
pertinent issues.

56. To find that such a difficulty has arisen in the present case does not
signify that, as contended by the applicant, there has been on the part
of the Tribunal a failure to exercise its jurisdiction with respect to those
pleas which were not expressly mentioned nor specifically dealt with in the
substantive part of the Judgement. The test of whether there has been a
failure to exercise jurisdiction with respect to a certain submission can-
not be the purely formal one of verifying if a particular plea is men-
tioned eo nomine in the substantive part of a judgment: the test must be
the real one of whether the Tribunal addressed its mind to the matters
on which a plea was based, and drew its own conclusions therefrom as
to the obligations violated by the respondent and as to the compensation
to be awarded therefor. Such an approach is particularly requisite in a
case such as the present one, in which the Tribunal was confronted with
a series of claims for compensation or measures of relief which to a con-
siderable extent duplicated or atleast substantially overlapped each other
and which derived from the same act of the respondent: the circulation
of an incomplete fact-sheet annexed to the enquiry concerning new em-
ployment for the applicant. This act, which was identified by the Tri-
bunal as the cause of the inadequate performance by the respondent of
the commitment to seek new employment for the applicant, also consti-
tuted the basis for the claim that the applicant’s professional reputation
and career prospects had been damaged.

57. While the claim for damage to professional reputation and career
prospects was couched by the applicant in broad terms, to the effect that
it resulted from “the circulation by the Respondent, both within and
outside the United Nations, of incomplete and misleading information
concerning the Applicant”, the record shows that the only act attributable
to the respondent which could fall within that description consisted
precisely in that same distribution to the United Nations central recruit-
ment service, to three specialized agencies, to two UNDP resident
representatives, and to several other services of the United Nations, of a

31
194 APPLICATION FOR REVIEW (ADVISORY OPINION)

fact-sheet which, while containing information reflecting valid periodic
reports, did not include statements in rebuttal by the staff member nor
reports concerning other periods of employment, which, contrary to
Staff Regulations, had not been prepared or incorporated. Since this act
of the respondent was at the same time both the cause of the inadequate
performance of the commitment to seek a new assignment and the source
of the claimed harm to reputation and career prospects, Mr. Fasla him-
self, in his explanatory statement to the Administrative Tribunal, did not
develop the argument in support of the two pleas separately. It was
reasonable in these circumstances for the Administrative Tribunal, in one
and the same part of its Judgement, to consider and dispose of all the
allegations of injury to the applicant resulting from that particular conduct
of the respondent.

58. In his application to the Committee, however, Mr. Fasla contends
that the award of damages made by the Tribunal “was solely in compen-
sation for Respondent’s failure to take all reasonable steps to fulfill its
legal obligation to find another position for Applicant’’. In short he refers
to the particular plea filed by him as plea fi) in his application to the
Tribunal (para. 44 above). Since, as already indicated, the Tribunal did
not pronounce on each specific head of claim, but examined on a global
basis and in succession the questions of violation of staff rules or regu-
lations, of specific relief and of monetary compensation for the injury
sustained, there is no suggestion in the terms of the Judgement that the
Tribunal’s decision awarding damages was connected with only one
among the inter-related pleas filed by the applicant.

59, The preceding observations show that it was not unreasonable for
the Tribunal to consider jointly and make a single award for the damage
to the professional reputation and career prospects of the applicant
together with the damage resulting from the inadequate observance of
the commitment to seek new employment for him. The question however
remains whether the Tribunal, in awarding damages, did in fact consider
and take into account both aspects of his case. From the text of paragraph
XIII of the Judgement it appears that in awarding damages the Tribunal
based itself on the following consideration among others:

“Having regard to the findings of the Joint Appeals Board in its
report of 3 June 1970 (paragraph 45) and to the fact that UNDP
refused to make further efforts to find an assignment for the Applicant
after agreeing to correct the fact sheet ...”’ (Emphasis added.)

The reasoning of the Judgement thus incorporates by reference the
findings of the Joint Appeals Board in paragraph 45 of its report. Para-
graph 45 contains the following sub-paragraph:

32
195 APPLICATION FOR REVIEW (ADVISORY OPINION)

‘“‘(e) UNDP’s efforts to assign the appellant elsewhere were
inadequate especially since the fact sheet was incomplete.
It is the view of the Board that, as a result of these facts, the
performance record of the appellant is incomplete and mis-
leading and that this seriously affected his candidacy for a
further extension of his contract or for employment by other
agencies.” (Emphasis added.)

From the concluding sentence of this sub-paragraph, which the Tribunal
reproduced in its Judgement, it is clear that in making the award the
Tribunal considered and took into account, inter alia, the damage inflicted
on the professional reputation and career prospects of the applicant
by the circulation of the fact-sheet; for the Tribunal clearly recognized
that the circulation of that fact-sheet had “‘seriously affected his candidacy
for a further extension of his contract or for employment by other
agencies”. In short, the Tribunal applied its mind to the basic act of the
respondent which gave rise to the claim for damages—the circulation of an
incomplete fact-sheet—and not merely to one of its consequences,
namely, that the efforts to seek a new position for the applicant had, for
that very reason, not been fully adequate. Thus the Tribunal went to the
root of the matter and, in accordance with its Statute (Art. 9), fixed the
amount of compensation to be paid to the applicant in lieu of specific
performance, taking into account the “injury sustained”’ by him resulting
from the refusal to circulate an appropriately corrected fact-sheet to
potential employers.

60. It is necessary to add certain observations which confirm this
conclusion. Article 9, paragraph 1, of the Tribunal’s Statute, which
governs the power of the Tribunal to award compensation, begins by
providing that the Tribunal, if it finds that the application is well founded,
“shall order the rescinding of the decision contested or the specific
performance of the obligation invoked’’. An order of this kind normally
constitutes the basic content of a decision of the Tribunal in favour of an
applicant. The immediately following sentence of Article 9, paragraph 1,
adds that:

‘“‘At the same time the Tribunal shall fix the amount of compen-
sation to be paid to the applicant for the injury sustained should
the Secretary-General, within thirty days of the notification of the
judgement, decide, in the interest of the United Nations, that the
applicant shall be compensated without further action being taken
in his case; ...”

Thus, the damages to be awarded by the Tribunal are of a subsidiary
character, in the sense that they are granted in lieu of specific performance.
The power of the Tribunal to award damages in lieu of specific perfor-
mance has been interpreted by the Tribunal as also empowering it to

33
196 APPLICATION FOR REVIEW (ADVISORY OPINION)

award damages when it finds that it is not possible to remedy the situation
by ordering the rescinding of the decision contested or specific perfor-
mance of the obligation invoked.

61. In the present case the ‘‘specific performance” which could have
been ordered by the Tribunal was not merely that further, undefined,
efforts should be made to obtain a position for the applicant but that
those efforts should consist in the circulation to the personnel departments
of the United Nations and specialized agencies of a completed and
corrected fact-sheet giving a fuller picture of the applicant’s past perfor-
mance as an official of the United Nations. This is implicit in the statement
made in paragraph XIII of the Judgement that in assessing damages the
Tribunal had had regard “to the fact that UNDP refused to make further
efforts to find an assignment for the Applicant after agreeing to correct
the fact sheet by taking into consideration the periodic reports which were
previously missing .. .”?.

62. The Tribunal held in the present case that, in view of the negative
position taken by the respondent as to the possibility or usefulness of
making further efforts for obtaining a new position for the applicant,
compensation was due without waiting for a new decision by the Secretary-
General within the 30-day period referred to in Article 9, paragraph 1.
The payment of compensation to an applicant depends on a decision by
the Secretary-General that no further action shall be taken in his case, and
in this particular instance the Tribunal already had before it such a
decision. Jt would have served no purpose and indeed not have been in
the applicant’s interest to await the repetition of that decision. In the
circumstances, this was not an unreasonable way of applying Article 9,
paragraph 1, of the Tribunal’s Statute.

63. Compensation was therefore awarded, as the Judgement states,
“in lieu of specific performance”, such compensation to constitute
“sufficient and adequate relief’ for the injury sustained. It follows that
the amount awarded as compensation did not merely seek to provide,
as contended by the applicant, relief for the non-execution of the obli-
gation to seek a new post for him, but was also intended to cover
that particular form of restitution which would have consisted in the
circulation of a completed and corrected fact-sheet. Such a circulation
among the recipients of the original letters would have provided specific
relief for the harmful effects resulting for the applicant from the previous
circulation of the incomplete fact-sheet. This confirms that the award
of damages was also intended to comprise compensation for the injury
to the applicant’s professional reputation and career prospects.

* *

64. In his application to the Committee the applicant asserts that the
Tribunal’s decision constituted a woefully inadequate judgement. This
could be interpreted as a disagreement with the adequacy of the amount
awarded. The hypothesis of a failure to exercise jurisdiction on account

34
197 APPLICATION FOR REVIEW (ADVISORY OPINION)

of the extreme paucity of an award would only arise in the event of there
being such a discrepancy between the findings of a tribunal and the
remedy granted that the award in question could be viewed as going
beyond the exercise of reasonable discretion. On such a hypothesis, the
obvious unreasonableness of the award could be taken into account in
determining whether there had been a “failure to exercise jurisdiction”’,
within the meaning given to this term by the Courtin paragraphs 50and 51
above; and it might lead to the conclusion that the Tribunal had not in
substance and in fact exercised its jurisdiction with respect to the issue
of compensation. But except in such an extreme case, once a tribunal
has pronounced on the amount of compensation to be paid for a wrongful
act, it has exercised its jurisdiction on the matter, regardless of whether
it allows the full amount claimed or allows only in part the compensation
requested.

65. In the present case the Administrative Tribunal found itself in the
situation of having.to translate the injury sustained by the applicant into
monetary terms. In this respect the Tribunal possesses a wide margin of
discretion within the broad principle that reparation must, as far as
possible, wipe out all the consequences of the illegal act and re-establish
the situation which would, in all probability, have existed if that act had
not been committed. This power of appreciation of the Tribunal is
subject to the rule provided for in the concluding words of paragraph 1
of Article 9 of its Statute:

‘... such compensation shall not exceed the equivalent of two years’
net base salary of the applicant. The Tribunal may, however, in
exceptional cases, when it considers it justified, order the payment
of a higher indemnity. A statement of the reasons for the Tribunal’s
decision shall accompany each such order.”

This rule does not require the Tribunal to state in every judgement
whether or not it is confronted with an exceptional case, but only to do
so in judgements in which it has decided to “order the payment of a
higher indemnity”. Moreover, even under this rule, the discretion given
to the Tribunal is a wide one. If the Court were acting in this case as a
court of appeal, it might be entitled to reach its own conclusions as to the
amount of damages to be awarded, but this is not the case. In view of the
grounds of objection upon which the present proceedings are based, and
of the considerations stated above, the Court must confine itself to
concluding that there is no such unreasonableness in the award as to make
it fall outside the limits of the Tribunal’s discretion. This being so, the
Tribunal cannot be considered as having failed to exercise its jurisdiction
in this respect. In reaching this conclusion the Court has taken account
of the fact that in paragraph XIII of the Judgement, when fixing the
amount of compensation, the Tribunal referred to “‘the circumstances
of the case”. Regard must therefore be had to various circumstances

35
198 APPLICATION FOR REVIEW (ADVISORY OPINION)

of fact appearing from the documentation before the Tribunal which
may have been relevant for its determination. Among them the following
may be noted:

(1) The report on the applicant’s service in Yemen, which the Tribunal
invalidated, was not circulated, and remained in the UNDP Personnel
Division.

(2) While the Joint Appeals Board qualified the performance record as
“incomplete and misleading’, the Tribunal described the fact-sheet
in its own words as “incomplete, if not inaccurate’? and the infor-
mation as having “serious gaps”. The three ratings circulated included
a favourable one in which the applicant was described as “‘an efficient
staff member giving complete satisfaction”, but also two in which
he was described as “a staff member who maintains only a minimum
standard”.

(3) The Tribunal found that the applicant had raised no objection to,
and had no grounds for contesting, the decision to grant him special
leave with pay from 10 September 1969 till the expiration of his
contract on 31 December 1969.

(4) The Judgement itself, which is a public United Nations document,
vindicated in several respects certain claims of the applicant.

Account has also to be taken of the fact that the number of months of
salary by reference to which the Tribunal determined the amount of its
award was the same as the number of months of salary adopted by the
Joint Appeals Board as the measure of the ex gratia payment which it
had recommended in its report of 3 June 1970.

*
* *

66. The second contention in the application io the Committee is that
the Tribunal failed to exercise its jurisdiction because, although it found
that the respondent had not performed his legal obligations with respect
to the applicant, it

“’.. nevertheless unjustifiably refused to fully consider Applicant’s
request for the reimbursement of the unavoidable and reasonable
costs in excess of normal litigation costs involved in presenting his
claims to the Joint Appeals Board and the Administrative Tribunal,
and refused to order compensation therefor’’.

The claim referred to is set out in plea (m) in the application to the
Tribunal in the following words:

“Payment to the Applicant of the sum of $1,000.00 for expenses
in view of the fact that, although the Applicant was represented by
a member of the Panel of Counsel, the complexity of the case

36
199 APPLICATION FOR REVIEW (ADVISORY OPINION)

necessitated the Applicant’s travel from California to New York
in May 1970 as well as frequent transcontinental telephone calls to
the Applicant’s Counsel before and after that date.”

67. In support of his second contention Mr. Fasla invokes, inter alia,
general principles of law and the case law of the Tribunal itself; as
establishing its jurisdiction and competence to award costs to a successful
applicant. He then maintains that the Tribunal failed to address itself
fully to the question of costs: for the Judgement, although mentioning
costs in a summary fashion, rejected a demand for counsel’s fees which
had never been made, but made no reference to the actual costs prayed
for. R&calling his success before the Tribunal in obtaining an award of
compensation and the invalidation of the periodic report on his service in
Yemen, he maintains that these and other elements of the decision showed
that he was justified in pursuing his claims. This being so, he further
maintains that the Tribunal refused fully to consider his request for the
reimbursement of expenses; for, without stating any standards or reasons,
the Tribunal said simply that it saw no justification for the request and
rejected it. As to the expenses in question, he refers to the complexity
of the case, the long duration of the appellate process, the necessity of his
residing in California and the consequential expenses involved in commu-
nicating and consulting with his counsel. These expenses, he maintains,
were reasonable, could not have been avoided otherwise than by extremely
inefficient and ineffective means, and were in excess of normal litigation
costs before the Tribunal. Referring to what he calls a consistent pattern
in previous Judgements of awarding costs to successful applicants, he
stresses that he was not claiming costs for the assistance of outside counsel
such as had been disallowed in the more recent practice of the Tribunal.
However, he maintains that the costs, other than counsel’s fees, which
he incurred were necessary, unavoidable and in excess of normal litigation
expenses before the Tribunal; and that the Tribunal has previously found
that it had jurisdiction to award such costs.

68. The claim to costs was mentioned by the Tribunal at the beginning
of its Judgement among the applicant’s claims to substantial relief. The
Tribunal’s decision in regard to costs was, no doubt, somewhat laconic
(para. XVII of the Judgement):

“The Applicant requests payment of one thousand dollars for
exceptional costs in preparing the case. Since the Applicant had the

37
200 APPLICATION FOR REVIEW (ADVISORY OPINION)

assistance of a member of the panel of counsel, the Tribunal finds
this request unfounded and rejects it.”

This decision has, however, to be read in the light of the history of the
question of the award of costs by the Tribunal. Although not expressly
empowered by its Statute to award costs, the Tribunal did so in some of
its early cases on the basis of what it considered to be an inherent power.
In 1950, this power was questioned by the Secretary-General, who
contended that: (a) the Tribunal was without authority under its Statute
to tax costs against the losing party and (b) even if the Tribunal decided
that it had competence to assess costs they should be strictly limited and
not include all types of actual costs. After consideration of the legal
issues involved the Tribunal formaliy adopted on 14 December 1950 a
statement of policy on the matter which, infer alia, provided:

“4. In view of the simplicity of the proceedings of the Adminis-
trative Tribunal, as laid down in its rules, the Tribunal will not, as
a general rule, consider the question of granting costs to applicants
whose claims have been sustained by the Tribunal.

5. In exceptional cases, the Tribunal may, however, grant a
compensation for such costs if they are demonstrated ta have been
unavoidable, if they are reasonable in amount, and if thev exceed
the normal expenses of litigation before the Tribunal.

6. In particular, it will not be the policy of the Tribunal to award
costs covering fees of legal counsel with respect to cases which do
not involve special difficulties.”” (Emphasis added.)

To this it may be added that the Secretariat has established a panel of
counsel in disciplinary and appeal cases. The counsel, drawn from the
Secretariat, are assigned to assist applicants as part of their official duties
and receive secretarial assistance and other support services. This assis-
tance is available to staff members without cost. As recognized by Mr.
Fasla, it has been the normal practice of the Tribunal, since the creation
of the panel of counsel, not to award costs for the assistance of outside
counsel,

69. Mr. Fasla complains that the Judgement rejected a demand for
counsel’s fees which had never been made but did not mention the
actual costs prayed for, namely his exceptional costs. But this reading
of the Judgement does not appear to be correct. The Tribunal first
recalled expressly that he had requested compensation for ‘‘exceptional
costs in preparing the case” and went on to state: “since the applicant
had the assistance of a member of the panel of counsel, the Tribunal

38
201 APPLICATION FOR REVIEW (ADVISORY OPINION)

finds this request unfounded and rejects it” (emphasis added). This would
seem to be simply a terse, and somewhat oblique, way of saying that the
Tribunal did not find the case one for the award of exceptional costs.
Furthermore, under the Tribunal’s Statement of Policy adopted on
14 December 1950, referred to above, it is clear that the award of costs is
a matter within its discretion; and that there is always an onus probandi
upon the applicant to demonstrate that the costs have been unavoidable,
reasonable in amount and in excess of the normal expenses of litigation
before the Tribunal. The question of costs is therefore very much a matter
for the appreciation of the Tribunal in each case.

70. In the circumstances the Court does not think that the contention
that the Tribunal failed to exercise jurisdiction vested in it with respect
to costs is capable of being sustained. The Tribunal manifestly addressed
its mind to the question and exercised its jurisdiction by deciding against
the applicant’s claim. Therefore this contention turns out to concern not a
failure by the Tribunal to exercise its jurisdiction but an appeal against its
decision on the merits. In so far as this contention is a challenge to the
Judgement on the ground of any inadequacy in the motivation of the
decision, it falls to be considered not in the present context ofa failure to
exercise jurisdiction but in that of the second question put to the Court
as to whether there has been a fundamental error in procedure which has
occasioned a failure of justice (see paras. 97-98 below.)

*
* *

71. The third contention in the application to the Committee is that
the Tribunal failed to exercise its jurisdiction in that it did not direct the
Secretary-General to recalculate the applicant’s rate of remuneration
while posted to Yemen on the basis of the actual duration of his assign-
ment there. The claim referred to is set out in the supplementary appli-
cation to the Administrative Tribunal, in the following words:

“(b) Recalculation by the Respondent of the Applicant’s salary
and allowances in Yemen on the basis of the actual duration
of the Applicant’s assignment there, and payment to the
Applicant of the difference between the recalculated amount
and the amount the Applicant received.”

In support of that contention Mr. Fasla invokes Article 9, paragraph 1,
of the Tribunal’s Statute. He refers to his posting to Yemen in September
1968 and his precipitate recall to Headquarters in May 1969; the payment
of his salary and allowances while in Yemen at the lower rate of a staff
member assigned to a post for longer than one year; the Secretary-
General’s admission before the Joint Appeals Board that they would
have been recalculated if he had been assigned to another post within the

39
202 APPLICATION FOR REVIEW (ADVISORY OPINION)

year; the Secretary-General’s argument that the applicant had never
been reassigned from Yemen; and the rejection of that argument by the
Joint Appeals Board, which found that his duty station had been changed
on 22 May 1969, The Tribunal, in Mr. Fasla’s view, failed to draw the
necessary legal conclusion from these circumstances and, by not granting
the same form of recognition and remedy as in the case of the respondent’s
obligation to seek a new post for him, failed to exercise its jurisdiction.

72. The claim under this head was recited at the beginning of the
Judgement. Subsequently the Tribunal summarized the history of this
claim before the Joint Appeals Board, which made no recommendation
on it, because it was not covered by the Staff Regulations or Rules or by
administrative instructions, but recommended an ex gratia payment in
the amount of any losses that the applicant could show that he had
suffered as a consequence of his precipitate recall from Yemen. The
Judgement also transcribed the dissenting opinion which the member of
the Joint Appeals Board elected by the staff had made in support of the
claim, After summarizing the applicant’s and respondent’s arguments on
the question, the Tribunal devoted paragraph XV of its Judgement to
dealing with this claim. The Tribunal set out the text of Staff Rule 103.22
(c), invoked by the applicant, and stated:

“The Tribunal observes that this text leaves the Respondent a
margin of discretion with respect to the payment of an assignment
allowance: it is possible for the allowance to be paid for a stay of
less than one year. In addition, the text lays down a very strict rule:
the subsistence allowance is payable only where an assignment
allowance has not been paid. In the present case, however, the
Applicant received an assignment allowance and is therefore not
entitled, under the Staff Rules, to a subsistence allowance.”

In the light of this statement it is difficult to perceive the basis for the
contention made in the application to the Committee that the Tribunal
did not consider or discuss the matter, since it specifically dealt with this
particular claim in paragraph XV of its Judgement and reached a concrete
decision rejecting it as ill-founded.

73. In the same paragraph XV of the Judgement, the Tribunal also
referred to the Joint Appeals Board recommendation for an ex gratia
payment in the amount of any losses that the applicant could show to
have resulted from his recall and to the fact that the Secretary-General
had agreed to make such an ex gratia payment, and added:

“.. in view of the above decision concerning the subsistence allow-
ance, the Applicant is entitled to take advantage of the possibility

40
203 APPLICATION FOR REVIEW (ADVISORY OPINION)

offered by the Respondent within a reasonable period of time from
this judgement ...” (emphasis added).

To give effect to this decision the Tribunal, in the operative part of the
Judgement, provided that:

‘3. Any requests for payment made in accordance with paragraph
XV above shall be submitted, together with the necessary supporting
evidence, by the Applicant to the Respondent within a period of two
months from the date of this judgement.”

Having regard to the applicant’s initiation of review proceedings, the
Court is of the opinion that this term of two months should not be
regarded as expired but should be considered to run only from ihe date
when the Judgement becomes final in accordance with paragraph 3 of
Article 11 of the Statute of the Administrative Tribunal.

74. Accordingly, the contention that the Tribunal failed to exercise
its jurisdiction with respect to the claim for recalculation of the rate of
remuneration is not sustainable on the face of the Judgement. The
Tribunal manifestly addressed its mind to the applicant’s claim, referred
specifically to it and exercised its jurisdiction by deciding to reject it.
The complaint thus again turns out to concern not a failure by the Tribunal
to exercise its jurisdiction but an appeal against its treatment of the
merits of the claim.

# *

75. In his application to the Committee, Mr. Fasla alleges that the
Tribunal did not order the correction of his fact-sheet and that gaps in
his employment record which were still in existence had not been filled.
This allegation may be interpreted as a complaint that the Tribunal
failed to exercise its jurisdiction with respect to plea (e) in the application
to the Tribunal, which reads as follows:

“Correction and completion of the Applicant’s Fact Sheet which
is intended for circulation both within and outside the UNDP, with
all the required Periodic Reports and evaluations of work: alter-
natively, payment by the Respondent to the Applicant of two years’
net base salary.”

In the written statement of his views submitted to the Court, Mr. Fasla
specifically complains that the Tribunal failed to exercise its jurisdiction
with respect to this particular plea among others.

76. The Tribunal, while not mentioning this plea specifically, applied
its mind to it by stating, in paragraph VIII of the Judgement:

“The preparation of a corrected fact sheet becomes meaningless
41
204 APPLICATION FOR REVIEW (ADVISORY OPINION)

once UNDP decided not to take the necessary further steps to find
the Applicant a new assignment.”

The obvious inference from the Tribunal’s statement is that to allow the
specific relief claimed would no longer serve any useful purpose. Thus
to state its conclusion by implication is one of the ways in which a
tribunal may, and not infrequently does, exercise its jurisdiction with
respect to a particular plea.

77. In his application to the Committee Mr. Fasla also contends that
Article 9, paragraph 3, of the Tribunal’s Statute imposes upon the
Tribunal the duty to award compensation when the wrong cannot be
remedied by the relief provided for in paragraph 1 of Article 9. In support
of this contention he invokes the text of paragraph 3, which provides that,
where applicable, ‘compensation shall be fixed by the Tribunal”. After
noting the use of the imperative “‘shall’’, he submits that the correct
construction of paragraph 3 deprives the Tribunal of any discretion to
refrain from awarding compensation where the wrong cannot be remedied
by the rescinding of the decision or the specific performance of the obli-
gation. This is an interpretation to which the Court cannot subscribe.
Paragraph 3 may not be interpreted in isolation from paragraph 1. The
introductory words of paragraph 3, ‘in all applicable cases”, refer back
to paragraph | and only comprise those cases in which compensation
must be awarded under that first paragraph. This interpretation is
confirmed by the text of paragraph 3 in other official languages. Thus
the paragraph does not impose an obligation or confer a power on the
Tribunal to award compensation in circumstances other than those
provided for in paragraph 1.

* *

78. The Court will now proceed to consider the basic contentions ad-
vanced by Mr. Fasla in the statement of his views submitted to the Court
which concern the exercise of the discretionary powers of the administra-
tion and allege the existence in this case of improper motives constituting
a misuse of power. It may be open to doubt how far these contentions,
which were not fully adduced in the application presented to the Com-
mittee, fall strictly within the contentions referred to in the first question
put to the Court. The Court, however, as it has previously stated, does not
consider that it should adopt a restrictive interpretation of the question.
It will therefore examine those contentions and, in deciding to do so, it
takes particular account of the fact that in the application to the Com-
mittee, and with regard to the ground of failure to exercise jurisdiction,
reference was made to “misuse of powers with improper motive”.

79. In his statement of views Mr. Fasla contends that it was as a con-

42
205 APPLICATION FOR REVIEW (ADVISORY OPINION)

sequence of his reporting serious administrative irregularities in the
UNDP office in Yemen that he was recalled from his post there; he
further contends that the failure of the Secretary-General to renew his
fixed-term contract was “‘an intentional or negligent consequence” of the
efforts made by Mr. Fasla, particularly in a report dated 17 January 1969,
to deal with the conditions existing in that office. He points out in this
respect that, in taking this action and informing his superiors of what he
felt was an unsatisfactory situation, he was fulfilling his duties under the
Staff Regulations, since by accepting an appointment with the United
Nations, he had pledged himself to discharge his functions and to regulate
his conduct ‘“‘with the interests of the United Nations only in view”. He
then asserts that the failure of the United Nations Administrative Tribu-
nal to investigate the link between his efforts in the Yemen office and the
decisions concerning his recall and non-renewal of contract constituted
what he describes as the most fundamental failure of the Administrative
Tribunal to exercise the jurisdiction vested in it.

80. The allegations thus advanced assume that the two basic adminis-
trative decisions which vitally affected Mr. Fasla in 1969, his recall from
Yemen and the non-renewal of his fixed-term contract, were the reaction
of the administration to the attitude which he had taken in denouncing
serious administrative irregularities. This implies the assertion that he was
persecuted not only for having exercised his rights but for having per-
formed his obligations in the interests of the United Nations; it also
implies that those administrative decisions were determined by improper
or extraneous motivation.

81. The adoption by the General Assembly of the Statute of the Ad-
ministrative Tribunal and the jurisprudence developed by this judicial
organ constitute a system of judicial safeguards which protects officials of
the United Nations against wrongful action of the administration, in-
cluding such exercise of discretionary powers as may have been deter-
mined by improper motives, in violation of the rights or legitimate
expectations of a staff member. [n view of the existence of this system of
judicial safeguards, and in line with the position now taken before the
Court, it would have been the proper course for Mr. Fasla to have chal-
lenged before the United Nations Administrative Tribunal the validity
of the two decisions, of recall and non-renewal, on the grounds alleged,
namely, that they violated his rights, interfered with the performance of
his duties to the Organization, and were inspired by improper motivation.

82. However, in his application to the United Nations Administrative
Tribunal, Mr. Fasla did not request the Tribunal to rescind, on the
grounds of illegality or improper motivation, the decisions concerning
his recall from Yemen and the non-renewal of his fixed-term contract.
Under the Rules of Procedure of the Tribunal each application must
specify “‘the decisions which the applicant is contesting and whose rescis-
sion he is requesting under Article 9, paragraph |, of the Statute”. The
pleas submitted to the Administrative Tribunal, transcribed in paragraph

43
206 APPLICATION FOR REVIEW (ADVISORY OPINION)

44 above, do not however refer to these two basic decisions, and this
indicated that they were not disputed by the applicant. Thus, with respect
to the recall from Yemen, the specific plea submitted as plea (b) of the
supplementary application only concerned certain economic conse-
quences of his recall from Yemen. The other pleas for rescission or
specific performance were submitted on the assumption that the original
fixed-term contract had expired, since pleas (e} and (g) concerned the
non-fulfilment of the obligation assumed by the Secretary-General to
make efforts to seek a new position for Mr. Fasla. Prejudice was invoked
not as a basis for the rescission of any administrative decision but as a
ground for compensation (plea (j)). The only request for rescission with
respect to which the claim of prejudice was relevant was plea (f), con-
cerning the invalidation of the report prepared in September 1970. As
to plea (d) its scope will be examined separately. All the other pleas
claimed only compensation (pleas (4), (i), (k), (1), (m), (n), and pleas
(a) and (c) of the supplementary application). In other words, the ap-
plicant was; basing his claim before the Administrative Tribunal on the
inadequacy of the efforts of the Secretary-General to obtain for him a
new contract, but not on the illegality or improper motivation of the decis-
ions to recall him from Yemen and not to renew his fixed-term contract.

83. In these circumstances, the Administrative Tribunal was justified
in finding, as it did in paragraph III of its Judgement, that although the
applicant had requested the Tribunal (in plea (d)) to order the Secretary-
General to restore him to the status quo ante, such a claim was not based
on the right to have his contract extended. In the same paragraph the
Tribunal found that the request concerning further employment depended
on the pleas that the Secretary-General be ordered to correct and com-
plete Mr. Fasla’s fact-sheet and make serious efforts to place him in a
suitable post.

84. The explanatory statement accompanying the pleas confirms the
correctness of this conclusion of the Tribunal. In the arguments then
advanced in support of the pleas, frequent reference was made to irregu-
larities in the Yemen office, but it was never asserted, as is now vigorously
contended before the Court, that it had been as a consequence of the
efforts displayed by Mr. Fasla to correct such irregularities that he had
been recalled from Yemen and that his contract had not been prolonged.
On the contrary, that explanatory statement mentioned that Mr. Fasla
had requested on his own initiative to be recalled from Yemen before the
expiry of his assignment.

85. Inasmuch as the applicant had not sought from the Administrative
Tribunal the rescission of the decisions of recall and non-renewal on the
grounds of their illegality and improper motivation, it is obvious that the
Administrative Tribunal could not have been expected to go into these
issues proprio motu, or proceed on its own account to an examination of

44
207 APPLICATION FOR REVIEW (ADVISORY OPINION)

or inquiry into these matters. While the Administrative Tribunal under
its Statute and in accordance with its jurisprudence examines the alleged-
ly improper motivation of an administrative decision, and under its
Rules of Procedure may arrange any measures of inquiry as may be
necessary, it results from its character as ‘‘an independent and truly
judicial body” (.C.J. Reports 1954, p. 53) that it can only proceed to in-
quiries of that kind on the basis of a plea from the aggrieved party for
rescission of the contested decision and a specific allegation by that party
that that decision has been inspired by improper or extraneous motiva-
tion. Equally, it would not have been appropriate for the Court to proceed
on its own to such an inquiry under Articles 48 to 50 of its Statute. The
Court’s abstention from carrying out an inquiry into the administrative
situation in Yemen or into the motives of the decision to recall the
applicant from there does not mean that, in review proceedings, the
Court regards itself as precluded from examining in full liberty the facts
of the case or from checking the Tribunal’s appreciation of the facts.
Such an inquiry would have been directed to facts and allegations invoked
to substantiate claims and submissions not advanced by the applicant
before the Administrative Tribunal. An inquiry into those matters could
have no place in review proceedings designed to determine whether the
Tribunal had failed to exercise its jurisdiction, a question which neces-
sarily relates only to claims and submissions presented to the Tribunal.

86. Furthermore the documentation before the Tribunal permitted it
to verify the motivation which had determined the decision of recall.
After having received the applicant’s denunciations of irregularities in the
management of the Yemen office, the administration had in February
1969 sent a senior official to visit that office and report on the measures
to be taken. His report, the submission of which to the Tribunal was in-
sisted upon by the applicant in his plea (a), and which contained favour-
able comment on Mr. Fasla’s efforts in Yemen, dealt in its conclusions
with the management of the Yemen office. On this point the report
advised that Mr. Fasla could ‘continue in charge of the office during the
immediate period of [the Resident Representative’s] absence”; at the
same time, however, it recommended that ‘‘in the interest of competent
fieid representation and operation it would be advisable to move him out
of the Yemen Arab Republic as well”.

87. These circumstances suffice to explain why the Court is unable to
accept the contention that the Administrative Tribunal failed to exercise
its jurisdiction in that it did not enquire into the situation in the Yemen
office. No tribunal can be fairly accused of failure to have exercised the
jurisdiction vested in it on the ground that it failed to make an inquiry or
a finding of fact which was not required in order to adjudicate on the case
presented to it, and which none of the parties asked it to make. One must
bear in mind the principle previously recalled by the Court, that it is the
duty of an international tribunal ‘‘not only to reply to the questions as
stated in the final submissions of the parties, but also to abstain from

45
208 APPLICATION FOR REVIEW (ADVISORY OPINION)

deciding points not indicated in those submissions” (.C.J. Reports
1950, p. 402).

88. The Court must now take up the second question in the request for
advisory opinion, which requires it to determine whether the Tribunal
has committed a fundamental error in procedure which has occasioned a
failure of justice as contended in the application to the Committee.

89. The contentions in the above document with regard to ‘‘a funda-
mental error in procedure which has occasioned a failure of justice” may
be summarized as follows. First, Mr. Fasla contends that the “failure of
justice” was apparent from the facts he had alleged with regard to failure
to exercise jurisdiction and from the information contained in the an-
nexes to his application; and that a woefully inadequate judgement had
resulted from the failure of the Tribunal to utilize its established proce-
dure and method of dealing with applications. Secondly, he contends
that the Tribunal had not proceeded “to fully consider and pass upon”
various pleas and requests, contrary to its normal practice and to what he
termed the well-established general principle that a court of justice must
analyse and decide all claims properly brought before it, with a reasoned
explanation of its conclusions and factual support therefor. Thirdly, he
contends that the failure even to mention claims was a deviation from
normal judicial procedure constituting fundamental error.

90. Under this question the Court has to determine, first, what is the
meaning and scope of the provision in Article 11 which allows a judge-
ment to be challenged on the ground ‘that the Tribunal... has committed
a fundamental error in procedure which has occasioned a failure of
justice”; and, secondly, in what respects, if any, the facts before it disclose
such a fundamental error in procedure in the present case.

91. “A fundamental fault in the procedure” is one of the two grounds
of challenge contained in Article XII of the Statute of the [LO Admini-
strative Tribunal, and it was in a similar form—*fundamental error in
procedure’’—that this ground was incorporated in the draft of a new
Article 11 of the Statute of the United Nations Administrative Tribunal
recommended to the General Assembly by the Special Committee on
Review of Administrative Tribunal Judgements in 1955. The words
“which has occasioned a failure of justice” were introduced at the
499th meeting of the Fifth Committee on the proposal of the Indian
delegation, who had stated that:

‘Another ground for review provided in the proposed new Article
11 was the commission of a fundamental error in procedure. The

46
209 APPLICATION FOR REVIEW (ADVISORY OPINION)

use of the word ‘fundamental’ was intended to preclude review on
account of trivial errors in procedure or errors that were not of a
substantial nature. In order to make the intention clearer, the Indian
delegation would suggest that the phrase ‘which has occasioned a
failure of justice’ should be inserted after the words ‘fundamental
error in procedure’ in the text of the article.”

The additional phrase was not, therefore, intended to alter the scope of
this ground of challenge, still less to create an independent ground of
objection, but merely to provide an indication as to the meaning of the
word ‘fundamental’; and in accepting the Indian proposal the Fifth
Committee seems to have assumed that it did not involve any change in
the substance of the original draft. One delegate indeed observed that ‘a
fundamental error in procedure clearly implied a failure of justice”.

92. It may not be easy to state exhaustively what is involved in the
concept of ‘‘a fundamental error in procedure which has occasioned a
failure of justice”. But the essence of it, in the cases before the Adminis-
trative Tribunal, may be found in the fundamental right of a staff member
to present his case, either orally or in writing, and to have it considered by
the Tribunal before it determines his rights. An error in procedure is
fundamental and constitutes ‘a failure of justice” when it is of such a
kind as to violate the official’s right to a fair hearing as above defined and
in that sense to deprive him of justice. To put the matter in that way does
not provide a complete answer to the problem of determining precisely
what errors in procedure are covered by the words of Article 11. But cer-
tain elements of the right to a fair hearing are well recognized and provide
criteria helpful in identifying fundamental errors in procedure which have
occasioned a failure of justice: for instance, the right to an independent
and impartial tribunal established by law; the right to have the case
heard and determined within a reasonable time; the right to a reasonable
opportunity to present the case to the tribunal and to comment upon the
opponent’s case; the right to equality in the proceedings vis-a-vis the
opponent; and the right to a reasoned decision.

93. Mr. Fasla, both in his application to the Committee and in his
written statement and comments transmitted to the Court, to a large
extent pleads failure to exercise jurisdiction and fundamental error in
procedure as alternative or joint grounds upon which to formulate what
appear to be essentially the same complaints concerning the Tribunal’s
handling of his case. In consequence, many of the considerations which
apply to his contentions in regard to the former ground apply also to his
contentions concerning the latter. For the most part, these contentions
appear to be complaints against the Tribunal’s adjudication of the merits
of the claims, rather than assertions of errors in procedure in the proper
sense of that term. In so far as they may be said to touch matters of
procedure, they appear, with one exception, to be dealt with in the next
paragraph, to express disagreement with the Tribunal’s determinations
of the procedure to be followed in the light of its appreciation of the facts

47
210 APPLICATION FOR REVIEW (ADVISORY OPINION)

and merits of the case, rather than to allege errors in procedure within the
meaning of Article 11. This is shown, for instance, in the complaint that
the Tribunal failed to exercise its jurisdiction and committed an error in
procedure when it declared relevant to the case only one part of the
document production of which was requested by the applicant in his
plea (b), and limited itself to taking note of the declaration of the re-
spondent with respect to the document requested in plea /c). Subject to
the one question which now requires separate examination, Mr. Fasla’s
contentions do not raise matters which constitute errors in procedure in
the true sense of that term.

94. The one exception is the complaint that the Tribunal’s decisions
rejecting the claims were not supported by any adequate reasoning. This
complaint does, in the opinion of the Court, concern an alleged error in
procedure in the proper sense of the term, and is of a kind to call for
consideration under the provision in Article 11 relating to a fundamental
error in procedure which has occasioned a failure of justice. The Secre-
tary-General, in his written statement, contends that a failure to state the
reason on which every part of a judgement of the Administrative Tribunal
is based is not a ground included among serious departures from a
fundamental rule of procedure, for although the Secretary-General
explicitly mentioned the possibility of including this among the grounds
for review when Article 11 of the Tribunal’s Statute was drafted, this was
not done. The Court is unable to accept this contention. The fact that
failure to state reasons was not expressly mentioned in the list of grounds
‘for review does not exclude the possibility that failure to state reasons
may constitute one of the errors in procedure comprised in Article 11.
Not only is it of the essence of judicial decisions that they should be
reasoned, but Article 10, paragraph 3, of the Tribunal’s Statute, which
this Court has found to be a provision ‘‘of an essentially judicial char-
acter” (U.C.J. Reports 1954, p. 52), requires that: “the judgements shall
state the reasons on which they are based.”

95. While a statement of reasons is thus necessary to the validity of a
judgement of the Tribunal, the question remains as to what form and
degree of reasoning will satisfy this requirement. The applicant appears to
assume that, for a judgment to be adequately reasoned, every particular
plea has to be discussed and reasons given for upholding or rejecting each
one. But neither practice nor principle warrants so rigorous an interpreta-
tion of the rule, which appears generally to be understood as simply
requiring that a judgment shall be supported by a stated process of
reasoning. This statement must indicate in a general way the reasoning
upon which the judgment is based; but it need not enter meticulously into
every claim and contention on either side. While a judicial organ is
obliged to pass upon all the formal submissions made by a party, it is not

48
21] APPLICATION FOR REVIEW (ADVISORY OPINION)

obliged, in framing its judgment, to develop its reasoning in the form of a
detailed examination of each of the various heads of claim submitted.
Nor are there any obligatory forms or techniques for drawing up judg-
ments: a tribunal may employ direct or indirect reasoning, and state
specific or merely implied conclusions, provided that the reasons on which
the judgment is based are apparent. The question whether a judgment is so
deficient in reasoning as to amount to a denial of the right to a fair
hearing and a failure of justice, is therefore one which necessarily has to
be appreciated in the light both of the particular case and of the judgment
as a whole.

96. The general nature of the Judgement in the present case has al-
ready been indicated. The applicant’s claims are set out seriatim and
every one of them is thus mentioned; there is an extensive review of what
the Tribunal considered to be the pertinent facts; there is a substantial
summary of what the Tribunal regarded as the pertinent parts of the
proceedings before the Joint Appeals Board; there is a substantial sum-
mary of the arguments of both the applicant and the respondent; there is
an extensive statement of the reasoning and the conclusions of the
Tribunal in regard to those closely related matters and issues which it
identified as requiring substantial examination. In selecting those matters
and issues the Tribunal followed the pattern of the applicant’s explana-
tory statement, which did not analyse each plea separately but concentrated
on the substantive legal issues. The sequence in the Tribunal’s reasoning
thus corresponded in broad lines to the one followed by the applicant
himself in developing his legal grounds in his explanatory statement.
There is, finally, in the Judgement, an operative part making three
affirmative findings and, in accordance with a usual practice of the
Tribunal, rejecting all other requests in a single provision. No doubt a
judgment framed in this manner relies to a certain extent on inference and
implication for the understanding of its reasoning in regard to some
particular issues. It is possible however to identify and determine with
precision those parts in the reasoning of the Judgement where each one of
the claims of the applicant is considered. In any event, the question at
issue is not whether the Tribunal might have used different forms or
techniques, or whether more elaborate reasoning might have been con-
sidered as preferable or more adequate. The question is whether the
Judgement was sufficiently reasoned to satisfy the requirements of the
rule that a judgement of the Administrative Tribunal must state the
reasons on which it is based. Having regard to the form and content of
the Judgement, the Court concludes that its reasoning does not fall short
of the requirements of that rule.

97. Particular consideration is required, however, of the decision re-
49
212 APPLICATION FOR REVIEW (ADVISORY OPINION)

jecting the claim for exceptional costs, which has already been described
as somewhat laconic. The Tribunal merely asserted that the claim for
exceptional costs was unfounded, without indicating the reasons why it
reached that conclusion. The applicant’s complaint in this respect is that
the Tribunal, without stating any standards or reasons, said simply that
it did not see any justification for the request and flatly rejected it. In this
respect, however, the Statement of Policy adopted by the Tribunal on
14 December 1950 should be taken into account, since it sets the stan-
dards applicable by the Tribunal on the subject. The declaration that the
request for exceptional costs was unfounded must be understood, in the
light of that general statement, as signifying that the applicant, upon
whom lay the onus probandi, had not demonstrated that such exceptional
costs had been unavoidable and reasonable in amount.

98. Account must also be taken of the basic principle regarding the
question of costs in contentious proceedings before international tribu-
nals, to the effect that each party shall bear its own in the absence of a
specific decision of the tribunal awarding costs (cf. Article 64 of the
Statute of the Court). An award of costs in derogation of this general
principle, and imposing on one of the parties the obligation to reimburse
expenses incurred by its adversary, requires not only an express decision,
but also a statement of reasons in support. On the other hand, the decision
merely to allow the general principle to apply does not necessarily require
detailed reasoning, and may even be adopted by implication. It follows
that on this point also the Judgement of the Administrative Tribunal
cannot be said to be open to challenge on the basis of inadequate reason-
ing, as contended by the applicant.

* *

99. As to Mr. Fasla’s request for costs in respect of the review pro-
ceedings, first before the Committee and afterwards before the Court,
there is no occasion for the Court to pronounce upon it. The Court con-
fines itself to the observation that when the Committee finds that there is a
substantial basis for the application, it may be undesirable that any
necessary costs of review proceedings under Article 11 of the Statute of
the Administrative Tribunal should have to be borne by the staff member.

*

100. After having stated its conclusions on the questions referred to it,
the Court wishes to reaffirm the opinion which it expressed in paragraph
73 above, namely that Mr. Fasla is entitled, in accordance with paragraph
XV of the Administrative Tribunal’s Judgement, to a payment in the
amount of any losses suffered as a result of his precipitate recall from

50
213 APPLICATION FOR REVIEW (ADVISORY OPINION)

Yemen, and that the period of two months fixed in this connection by the
Administrative Tribunal, having been suspended for the duration of the
review proceedings, is to be calculated from the date when the Judgement
becomes final in accordance with paragraph 3 of Article 11 of the Statute
of the Tribunal.

101. For these reasons,

THE COURT DECIDES,

by 10 votes to 3,

to comply with the request for an advisory opinion;
THE COURT IS OF OPINION,

with regard to Question I,

by 9 votes to 4,

that the Administrative Tribunal has not failed to exercise the jurisdic-
tion vested in it as contended in the applicant’s application to the Com-
mittee on Applications for Review of Administrative Tribunal Judge-
ments;

with regard to Question IT,
by 10 votes to 3,

that the Administrative Tribunal has not committed a fundamental
error in procedure which has occasioned a failure of justice as contended
in the applicant’s application to the Committee on Applications for
Review of Administrative Tribunal Judgements.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of July, one thousand nine
hundred and seventy-three, in two copies, one of which will be placed in
the archives of the Court and the other transmitted to the Secretary-
General of the United Nations.

(Signed) Manfred Lacus,
President.

(Signed) S. AQUARONE,
Registrar.

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214 APPLICATION FOR REVIEW (DECL. LACHS)

President LACHS makes the following declaration:

While I am in full agreement with the reasoning and conclusions of the
Court, there are two observations which I feel impelled to make.

1. That it should be possible for judgements of the United Nations
Administrative Tribunal to be examined by a higher judicial organ is a
proposition which commends itself as tending to provide a greater
measure of protection for the rights involved. However, the manner in
which this proposition has been given effect has raised doubts which I
share. Indeed, I would go farther than the Court’s observation that it
does not consider the procedure instituted by Article 11 of the Tribunal’s
Statute as “free from difficulty” (para. 40), for neither the procedure
considered as a whole nor certain of its separate stages can in my view
be accepted without reserve. Not surprisingly, the legislative history of
the provisions in question reveals that they were adopted against a
background of divided views and legal controversy.

There would, perhaps, be little point in adverting to this problem ifthe
sole choice for the future appeared to lie between judicial control of the
kind exemplified by the present proceedings and no judicial control at all.
That, however, does not, in my view, have to be the case, for the choice
ought surely to lie between the existing machinery of control and one
which would be free from difficulty and more effective. I see no com-
pelling reason, either in fact or in law, why an improved procedure could
not be envisaged.

2. My second observation concerns the discrepancy between the two
systems of review: one established by Article XII of the Statute of the
ILO Administrative Tribunal and the other by Article 11 of that of the
United Nations Administrative Tribunal. Each of them has been accepted
by a number of organizations, mainly specialized agencies; and in the
light of the co-ordination which should be manifest between these
organizations, belonging as most of them do to the United Nations
family, it is regrettable that divergences should exist in the nature of the
protection afforded to their staff members. There can be little doubt
that, in the interest of the administrations concerned, the staff members
and the organizations themselves, the procedures in question should be
uniform.

Judges Forster and NAGENDRA SINGH make the following declaration:

While voting in favour of the Opinion of the Court, we find that there
are certain considerations which merit being mentioned, and hence,
availing ourselves of the right conferred by Article 57 of the Statute read
with Article 84 of the Rules of Court, we append hereunder the fol-
lowing declaration:

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215 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

1

The nature and character of the procedural channel for obtaining the
advisory opinion of the Court vide Article 11 of the Statute of the United
Nations Administrative Tribunal, it is said, raises issues concerning the
appropriateness of the Committee on Applications for Review of
Administrative Tribunal Judgements 1 which is a political body but still
authorized by the General Assembly to function as the fountain source
for putting legal questions to the Court under Article 96 (2) of the Charter.
That apart, there is also the question of equality of the Parties, namely in
this case the Secretary-General and the official, in relation to their capacity
to appear before the Court (Art. 66 of the Statute of the Court and the
oral procedures). It may be relevant to mention here that in spite of the
recommendation contained in paragraph 2 of General Assembly resolution
957 (X) of 1955, to the effect that neither member States nor the Secretary-
General should make oral statements before the Court, the applicant
official Mr. Fasla made a written request, vide his letter of 15 December
1972, to be allowed to make an oral presentation of his case to the Court.
This request was repeated in writing on 29 January 1973. It was, however,
the Court’s decision not to hold any public sitting for the purpose of
hearing oral statements which went to establish equality between the
Parties in the present case.

It is the prime concern of any judicial tribunal, whether sitting in appeal
or in review proceedings, and whether giving a judgment or an advisory
opinion, to see that all interested parties are given full and equal opportu-
nity to present their respective viewpoints so that the dispensation of
justice is based on all that information which is necessary and hence
required for that supreme purpose. It may be that in the circumstances
of the present case the decision to dispense with oral hearings was
warranted since adequate information to enable the Court to administer
justice was forthcoming but that cannot be said of each and every case
that may come up to the Court seeking its advisory opinion under Article
11 of the Statute of the United Nations Tribunal. There can be, therefore,
no question of any generalization regarding procedures being always
regular in all the different circumstances of each and every case that may
crop up under this particular category. It may even be granted that there
is no general principle of law which requires that in review proceedings
the interested parties should necessarily have an opportunity to submit
oral statements to the review tribunal, but surely legal procedures are
prescribed to cover all eventualities, leaving it to the review tribunal to
exercise its discretion in the different circumstances of each case as to
what is just and necessary. A judicial procedure cannot be held to be
sound in every respect if, as in this case, fetters are placed on the Court
as a review tribunal thereby ruling out oral statements altogether in order

\ Hereafter for convenience called the Committee.

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216 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

to maintain equality of the parties, although in the peculiar circumstances
of any particular case oral hearings become necessary and are duly
justified. Some room for improvement in procedures would thus appear
to be indicated to cover all eventualities.

Moreover, attention has also to be invited to the legislative history of
Article 11 of the Statute of the Tribunal. The delegates from the United
Kingdom and the United States who co-sponsored the General Assembly’s
resolution 957 (X) left it expressly to the Court to decide if there were
any legal flaws in the procedure concerning review of questions of law
arising from the judgements of the Administrative Tribunal. The hope
was expressed by these delegates that:

“,. the Court will not hesitate to inform us if any important element
of the procedure is contrary to the provisions of the Charter or of
the Statute of the Court itself, or if it does not give the necessary
protection to the parties who might be affected” (General Assembly,
10th Session, 541st Meeting, 8 November 1955, paras. 54-67,
pp. 283-284).

In response to the aforesaid enquiry dating back to 1955 it appears
desirable to make some observation concerning the possible scope for
improvement of procedures established under Article 11 of the Statute
of the United Nations Administrative Tribunal. For example no reasons
are given by the Committee either for granting the request of the applicant
or for refusing it. The Committee meets in closed session, and does not
draw up summary records of its proceedings concerning applications,
and these proceedings are treated as confidential and not even made
available to the Court. These are some of the non-judicial features of the
Committee functioning in accordance with the procedures established for
moving the Court to give an advisory opinion. Moreover it cannot be
denied that the decisions of the Committee are indeed vital to the staff
members of the United Nations, since an affirmative decision becomes a
“necessary condition” or a sine qua non for the “opening of the Court’s
advisory jurisdiction”. This would amount to the Committee becoming
a crucial legal step in the entire procedure for redressing the grievances
of the staff members for the simple reason that without the assent of the
Committee access to the Court’s unhampered opinion can never be had.
This may be said in addition to the non-judicial character and composi-
tion of the screening machinery of the Committee which may not invaria-
bly provide the appropriate legal forum for seeking an advisory opinion.
This is an aspect already dealt with in the present Opinion of the Court
with which we agree. We support the view that the Court should comply
with the request for giving its advisory opinion in this case. The régime
set up by Article 11 of the Statute of the Tribunal may not be legally
flawless. It may even be far from a perfect judicial procedure but it

54
217 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

certainly is not such as to warrant the Court to refuse to answer the two
questions raised in this case for the Court’s opinion. It may also be true
that this procedural aspect is certainly not before the Court in 1973 and
as such it may not be correct to make any observations directly or even
by way of obiter dictum. Nevertheless, we would consider it not inappro-
priate to draw attention to it in our declaration and leave it to the authori-
ties concerned to examine, if they so feel, whether the procedural
machinery centring round the Committee could not be bettered.

Il

Again, while we support the finding that both the questions posed to
the Court should be answered in the negative, there is a certain aspect
and a distinct consideration which deserves to be mentioned in the overall
interests of justice. We endorse the view that in regard to the procedures
adopted by the Tribunal there has been no fundamental error which
could be said to have occasioned a failure of justice in this case. In fact
due procedures have been throughout observed and there is no difficulty
in answering this particular question in the negative.

As far as failure in the exercise of jurisdiction is concerned, however,
more than one view could be taken, both in regard to what constitutes a
failure in the exercise of jurisdiction and what are the limits to the Court’s
functions “in review”, particularly in the light of the restricted terms of
reference. It is, of course, true that the Court is in no position to retry
the case already decided by the Administrative Tribunal. The Court
should not generally enter into the substance or merits of the dispute and
particularly not in relation to that which falls outside the reviewable
categories, namely the two specified by the Committee out of the four
enumerated in paragraph 1 of Article 11 of the Statute of the Adminis-
trative Tribunal. There is also no intention here to depart from the
jurisprudence of the Court already established from the days of the
Permanent Court that it should remain ‘‘within the scope of the question
thus formulated’’, holding that if there were certain points falling ‘‘out-
side the scope of the question as set out above, the Court cannot deal
with them” (P.C.1.J., Series B, No. 16, p. 16). “Therefore the Court
should keep within the bounds of the questions put to it” (1.C_/. Reports
1955, pp. 71, 72).

However, it cannot be said that one is precluded from examining in all
its aspects the concept of ‘‘failure to exercise jurisdiction”. These words
are specifically used in the terms of reference to this Court and hence
should not escape scrutiny. ‘‘Failure to exercise jurisdiction” would cer-
tainly cover situations where the Tribunal has either deliberately but
erroneously omitted to consider a material issue in the case or has inad-
vertently forgotten to do so.

The Tribunal may also be said to have failed to exercise jurisdiction
if it has palpably and manifestly caused injustice, since such an exercise of

55
218 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

jurisdiction would tend to amount to a failure of that exercise. This
interpretation would be applicable only if the exercise of jurisdiction was
so blatantly faulty as to render it invalid.

Again, depending upon the circumstances of each case it may also
cover situations where the Tribunal has applied its mind and considered
the exercise of its jurisdictional powers to any particular issue in the
case, but after such consideration has decided to negative it. It may be
that in such circumstances the Tribunal may be said to have exercised
and not failed to exercise its jurisdiction. In such cases it would be essential
to consider whether in coming to its conclusion the Tribunal has remained
within the margin of reasonable appreciation or what may be cailed a
normal reasonable exercise of discretion in the evaluation of the facts
and issues presented by the case. What has to be examined is a challenge to
the Judgment of the Tribunal on the ground that the Tribunal “failed to
exercise jurisdiction vested in it”. It therefore becomes necessary to make
an appraisal in each case whether or not there has been a failure to exercise
jurisdiction within the meaning of Article 11 of the Statute of the
Tribunal.

It is at this stage that considerations relating to the nature and the kind
of failure to exercise jurisdictional powers vested in the Tribunal crop up
for examination. It could not, therefore, be stated as a general rule that
the concept of ‘failure to exercise jurisdiction” would always exclude
considerations relating to the adequacy of that exercise. It has been said
that when dealing with that aspect the Court has to take care to see that
in discharging its review function it does not trespass on the merits of the
case. However, it is neither clear nor certain to what extent the Court
should be completely guided by the Advisory Opinion of 1956 which
related to the ILO Tribunal an interpretation of Article XII of its Statute
that is quite different from Article 11 of the Statute of the United Nations
Administrative Tribunal. Even if the Court were to be guided by that
ruling, namely that “errors ... on the part of the Administrative Tribunal
in its Judgments on the merits cannot [be corrected by the Court on a
request for an advisory opinion]” (1.C.J. Reports 1956, p. 87) there would
still appear to be nothing to prevent the Court from analysing the conclu-
sions reached by the lower tribunal to determine whether or not the basic
interests of justice are served in so far as there is adequate, proportionate
or balanced relationship between the findings of the Tribunal and the
conclusions reached in its Judgement. In this particular case, even though
there may not be a miscarrige of justice on account of failure to exercise
jurisdiction as such, and hence the answer to the question posed by the
Committee may be strictly in the negative, there would still remain room
for observation if there were to be noticed an imbalance between the
findings arrived at and the remedial conclusions pertaining to relief
reached by the lower court.

This aspect needs to be examined at some length which could best be
done by referring separately to those portions of the Judgement No. 158 of
the Tribunal which relate to (a) the contention of the applicant and the

56
219

APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

findings of the Tribunal on the one side, and (4) the conclusions reached
concerning remedial relief on the other:

(a) In Judgement No. 158 the Tribunal sums up the contention of the
applicant in the following words:

“The Applicant does not, however, claim that, merely by
virtue of being the holder of a fixed-term appointment, he had
the right to have his contract extended beyond 31 December
1969. He [the applicant] first requests the Tribunal to order the
Respondent to correct and complete his fact sheet and the
required periodic reports and evaluations of his work; he also
requests the Tribunal to order the Respondent to make further
serious efforts to place the Applicant in a suitable post!.” (Empha-
sis added.)

As against the aforesaid contentions of the applicant, the findings of
the Tribunal, expressed in clear and categoric terms, read as follows:

“The Tribunal notes that, at the time when the search for
a new assignment was undertaken, no periodic report had been
made on the Applicant’s services from 1 July 1965 to 31 May
1966 and from November 1967 to 31 December 1969. The
established procedure for the rebuttal of periodic reports had not
been observed. Lastly, certain complimentary assessments of the
Applicant's service did not appear in the file. The fact sheet
drawn up solely on the basis of the existing reports was therefore
incomplete. After examining that situation, the Joint Appeals
Board stated ‘that, as a result of these facts, the performance
record of the appellant’ was ‘incomplete and misleading’ and that
that fact had ‘seriously affected his candidacy for a further
extension of his contract or for employment by other agencies’.

The Tribunal considers that the commitment undertaken by
the Respondent was not correctly fulfilled since the information
concerning the Applicant’s service, as it appeared in his file and
his fact sheet, had serious gaps. The search for a new assignment
could have been made correctly only on the basis of complete and
impartial information.\” (Emphasis added.)

(b) Again the Tribunal states in its conclusion the relief side of its
decision which is both vital to the applicant, Mr. Mohamed Fasla,
as well as of importance to the Court in evaluating and assessing the
just balance between the findings of the Tribunal and the ultimate

1 See doc. AT/DEC/158 of 28 April 1972; Case No. 144, Judgement No. 158, pp.

14-15.

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APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

compensatory relief granted to the applicant. The true essence of the
exercise of jurisdiction is to be judged in the light of these paragraphs
of the Tribunal’s Judgement. The conclusions of the Tribunal are
accordingly reproduced below:

“The Tribunal must conclude from this that the prejudice
shown by the first reporting officer towards the Applicant was
in no way corrected by the superior officer required to participate
in the drafting of the report which the Respondent had agreed
to prepare, as he was obliged to do under the Staff Rules.

The Respondent thus allowed a report manifestly motivated
by prejudice, containing no reservation or personal comment on
the part of the second reporting officer, to be placed in the
Applicant’s file and used in the fact sheet, as revised in response
to the recommendation of the Joint Appeals Board which had
been accepted by the Respondent.

The Tribunal, having reached the conclusion that the
Respondent did not perform in a reasonable manner the obligation
which he had undertaken to seek an assignment for the Applicant,
notes that it is not possible to remedy this situation by rescinding
the contested decision or by ordering performance of the obligation
contracted in 1969. In similar cases (Judgements Nos. 68:
Bulsara and 92: Higgins), the Tribunal held that compensation,
in lieu of specific performance, may constitute sufficient and
adequate relief.

Having regard to the findings of the Joint Appeals Board
in its report of 3 June 1970 (paragraph 45) and to the fact that
UNDP refused to make further efforts to find an assignment for
the Applicant after agreeing to correct the fact sheet by taking
into consideration the periodic reports which were previously
missing, the Tribunal considers that in the circumstances of the
case the award to the Applicant of a sum equal to six months’
net base salary constitutes ‘the true measure of compensation
and the reasonable figure of such compensation’ (Advisory
Opinion of 23 October 1956, Z.C.J. Reports 1956, p. 100)1.”
(Emphasis added.)

A scrutiny of the findings of the Tribunai in relation to the conclusions
reached, including the relief granted, would thus appear to reveal a
certain lack of proportion in the exercise of jurisdictional powers of the

Tribunal.

1 See doc. AT/DEC/158 of 28 April 1972; Case No. 144, Judgement No. 158, p. 18.

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221 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

This relief aspect of the case would not appear to relate to error in pro-
cedure as that has a limited scope and, as stated earlier, there has also not
been any procedural flaw as such in this case let alone causing a miscarriage
of justice, Again, it could not relate to excess of jurisdiction or competence
which are the other alternatives for reference to the Court mentioned in
Article 1] of the Statute of the Tribunal but not specified to us by the
Committee. Similarly the aforesaid imbalance could not refer to the
provisions of the United Nations Charter. It can, therefore, only relate
to the exercise of jurisdiction and it does pertain to the question of
adequacy of that exercise which is further explained below.

The Tribunal has accepted the major contentions of the applicant
and has recorded a finding to the effect that the respondent ‘‘failed to
fulfil the commitment undertaken’. It has further stated that the ‘“‘respon-
dent refused to undertake a search for an assignment in a more correct
manner”, and “that the obligation assumed in the letter of 22 May 1969
has therefore not been performed” (emphasis added). [t cannot therefore
be denied that looking to the case as a whole, the net result of this episode
of the applicant’s service with the UNDP has been immediate termination
of employment as an “unwanted official”, with little or no hope for the
future, thus involving a serious damage to his professional reputation
and in consequence a clear loss to him in his career prospects. The
Tribunal undoubtedly applied its mind to this all important issue raised
by the applicant and feeling empowered to award damages whenever it
finds that it is not possible to remedy the situation by rescinding the
decision contested, it rightly proceeded to exercise its jurisdiction and to
grant compensation to the applicant. The object of any tribunal in such
circumstances would be to give proper and meaningful compensation
and not a compensation in mere name. This would also appear to be the
clear intention of the United Nations Administrative Tribunal as can be
gathered from the words used in its Judgement that compensation was
being awarded “‘in lieu of specific performance” and such compensation
had therefore to ‘“‘constitute sufficient and adequate relief” for the injury
sustained. In short the compensatory relief of six months’ net base salary
awarded in this case is meant to cover not merely relief for non-execution
of the obligation to get a new posting or further assignment for the
applicant but also to cover restitution in the shape of circulation of a
completed and corrected fact-sheet and on the whole, therefore, it is
intended to provide reparation in kind for the entire injury to the appli-
cant’s professional reputation including career prospects. In the light
of the aforesaid position coupled with a clear finding of a grave and
serious nature against the respondent and with the Secretariat procedures
coming in for sharp criticism atthe hands of the Tribunal, it appears
incongruous that the concluding relief should be nothing more than six
months’ net base salary as against the maximum prescribed by Article 9
(1) of the Statute of the Tribunal which could extend to two years and in
“exceptional cases” could be more.

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222 APPLICATION FOR REVIEW (DECL. FORSTER AND NAGENDRA SINGH)

Even if there may not be “‘obvious unreasonableness” in the meagreness
of the award which may still be held to be such as would not amount to a
“failure to exercise jurisdiction”, there does certainly appear to be an
inadequate or somewhat disproportionate exercise of jurisdiction which
need not be overlooked in so far as it relates to a mention being made of
that aspect in this declaration without, of course, in any way affecting
the Advisory Opinion of the Court. We consider this conclusion warranted
even though this is not an appeal, because the Tribunal required to trans-
late the injury sustained into monetary terms does possess a wide margin
of discretion within the broad principle that reparation must, as far
as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if
that act had not been committed. The application of that principle in
relation to the power of the Tribunal to grant compensation though
limited by Article 11 of the Statute of the Tribunal still leaves a clear
margin much wider than six months actually allowed in this case.

While pinpointing, therefore, the shortcoming in the Judgement of the
Tribunal as symbolized by the imbalance between its findings in favour of
the applicant, and the relief granted him, we have no hesitation in
emphasizing that the exact quantum of compensation is not for the
Court to pronounce upon as it relates to the merits of the case. Moreover,
the issue pertaining to compensation has already been the subject of
adjudication by the Tribunal and the Court, confined to answering the
two specific questions raised “in review”, is not in a position to state what
the right relief, or its nature or degree or kind should be to meet the
present circumstances.

Nevertheless, it would not be inappropriate in this declaration to state
that aspect which vitally affects the applicant and also concerns the
overall interests of justice. If the attention of the authorities concerned,
whether the Secretary-General or otherwise, is drawn to this aforesaid
imbalance in the relief side of the case, the administration of justice
would certainly appear to be promoted rather than hindered. This indeed
furnishes the true raison d’etre of this declaration.

Judges ONYEAMA, DILLARD and JIMENEZ DE ARECHAGA append separate
opinions to the Opinion of the Court.

Vice-President AMMOUN and Judges Gros, DE CASTRO and Morozov
append dissenting opinions to the Opinion of the Court.

(Initialled) M.L.
(Initialled) S.A.

60