INTERNATIONAL COURT OF JUSTICE

YEAR 2003
2003
1 September
General List
No. 130
1 September 2003
CASE CONCERNING SOVEREIGNTY OVER
PEDRA BRANCA/PULAU BATU PUTEH,
MIDDLE ROCKS AND SOUTH LEDGE
(MALA YSIA/SINGAPORE)
ORDER
The President of the International Court of Justice,
Having regard to Articles 40 and 48 of the Statute of the Court and to Articles 39, 40, 44 and
46 of the Rules of Court;

Whereas, by a joint letter dated 24 July 2003, filed in the Registry of the Court on the same
day, the Minister of Foreign Affairs of Malaysia and the Minister for Foreign Affairs of the
Republic of Singapore notified to the Registrar a Special Agreement between the two States, signed
at Putrajaya on 6 February 2003 and having entered into force on 9 May 2003, date of the exchange
of instruments of ratification;

Whereas in the said Special Agreement the Parties request the Court “to determine whether
sovereignty over (a) Pedra Branca/Pulau Batu Puteh; (b) Middle Rocks; (c) South Ledge, belongs
to Malaysia or the Republic of Singapore”;

Whereas in accordance with Article 40, paragraph 3, of the Rules of Court the Governments
of Malaysia and Singapore have informed the Court of the appointment as Agents of, respectively,
HE. Mr. Tan Sri Ahmad Fuzi Haji Abdul Razak and H.E. Mr. Tommy Koh; and whereas
Malaysia and Singapore have further stated that they have appointed as their respective Co-Agents
H.E. Dato’ Noor Farida Ariffin and H.E. Mr. A. Selverajah;
-2-

Whereas in Article 4, paragraph 2, of the Special Agreement the Parties have agreed that,
without prejudice to any question as to the burden of proof, the written pleadings should consist of:

“(a) a Memorial presented by each of the Parties not later than 8 months after the
notification of this Special Agreement to the Registry of the Court;

(b) a Counter-Memorial presented by each of the Parties not later than 10 months
after the date on which each has received the certified copy of the Memorial of
the other Party;

(c) a Reply presented by each of the Parties not later than 10 months after the date on
which each has received the certified copy of the Counter-Memorial of the other
Party; and

(d) a Rejoinder, if the Parties so agree or if the Court decides ex officio or at the
request of one of the Parties that this part of the proceedings is necessary and the
Court authorizes or prescribes the presentation of a Rejoinder”,

Fixes as follows the time-limits for the initial pleadings in the case:

25 March 2004 for the filing by each of the Parties of a Memorial;

25 January 2005 for the filing by each of the Parties of a Counter-Memorial; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this first day of September, two thousand and three, in three copies, one of which will
be placed in the archives of the Court and the others transmitted to the Government of Malaysia
and the Government of the Republic of Singapore, respectively.

(Signed) SHI Jiuyong,
President.

(Signed) Philippe COUVREUR,
Registrar.


92

OBSERVATIONS DE M. NYHOLM

Le désir d’avoir recours pour l'évaluation de l’indemnité de
l'usine de Chorzéw à une expertise est certainement légitime,
mais est-il aussi possible d'arriver par cette voie à un résultat ?
S’il s'agissait en l’espèce d’une expertise sur une base purement
mathématique telle que l'établissement d’un bilan tiré d’une
comptabilité, des experts nommés par la Cour et par les Parties,
travaillant en pleine indépendance sans liaison avec la Cour et
sur un pied égal entre eux et autorisés à s’entourer de tous
renseignements, pourraient sans doute constituer une aide
décisive pour obtenir une juste solution de l'affaire. Mais, en
l'espèce, le caractère hypothétique des questions comporte une
réponse également hypothétique. S'agissant d’une appréciation
des résultats financiers que l’usine aurait donnés entre 1922 et
1928, si elle était restée entre les mains des Allemands, on se
trouve sur un terrain où les experts auraient des difficultés
pour se prononcer autrement que par des hypothèses.

Un nombre considérable de circonstances y jouent un rôle.
Entre autres la capacité des diverses personnes dirigeantes pour
la direction technique et pour bénéficier de la situation du
marché général et de la formation des divers groupements des
usines dans des «concerns» qui caractérisent les années 1922-
1928 ; les capitaux dont aurait pu disposer l’usine, l'influence
favorable ou défavorable de la législation polonaise, etc.

La réponse ne peut donc guère résulter dans l'indication de
la somme précise, qui pourrait donner une solution immédiate
de l'affaire. | |

Tout en admettant même que par les dires des experts on
se serait rapproché plus de la vérité, cette différence ne saurait
jouer un réle‘important dans une situation où l'évaluation de
la Cour doit toujours être basée sur un nombre de décisions
détaillées toutes à forfait pour arriver au résultat global. Peu
importe si pour quelques-unes des réflexions on arrive à IIO
93 ARRÊT N° 13. — OBSERVATIONS DE M. NYHOLM

au lieu de roo, si la totalité des décisions garde toujours son
caractère approximatif.

. On se demande donc s’il vaut la peine de retarder la solu-
tion de l'affaire et de chercher à vaincre les difficultés d’une
expertise entre autres dans les choix des experts, qui doivent,
pour bien faire, posséder des qualités se trouvant difficilement
réunies chez une seule personne.

Finalement, la Cour pourrait se trouver devant une situa-

x

tion identique à celle existant avant l’expertise, et être exposée
encore à ce que la discussion entre Parties sur l'expertise com-
porte une re-discussion de Vaffaire sur les mêmes bases que
celles déjà exposées. ,

D’autre part, les nombreux éléments du dossier paraissent
permettre une décision directe. L’étude des renseignements et
statistiques fournis par le dossier concernant par exemple l’état
de l'usine et le développement général dans la sphère indus-
trielle dont il s’agit, paraissent constituer une base suffisante
pour l'appréciation générale qui, de toute manière, incombera
à la Cour. Une application mutatis mutandis desdits renseigne-
ments sur. l’usine-sceur de Piesteritz paraît particulièrement
fructueuse. Des contre-preuves se présentent comme possibles,
par exemple l’examen de l'offre de vente faite à la Société
suisse, en prenant en considération la situation qui se présen-
tait alors.

*
* *

Quelques points dans cette affaire, qui est dans son ensemble
d’un caractère spécifique, peuvent attirer Vattention au point
de vue du droit.

Quant à la fixation du dommage, la défenderesse cherche de
nouveau dans le procès actuel à revenir sur des points déjà
tranchés, en soutenant qu’elle ne doit pas payer l'indemnité
94 ARRÊT N° 13. — OBSERVATIONS DE M. NYHOLM

parce que les titulaires de cette indemnité ne sont pas les deux
Sociétés mais toujours le Reich. Ces questions ont été décidées
par l’Arrét n° 7, qui établit définitivement que le dommage
éventuel est dû aux deux Sociétés, et non pas au Reich, qui
n'est pas propriétaire depuis qu’il a vendu l'usine par les actes
de 1919. L'arrêt traite donc indûment de nouveau les excep-
tions polonaises à ce sujet.

La prétention polonaise basée sur l’article 256 du Traité de
Versailles chérche à faire considérer de nouveau le Reich comme
propriétaire. Mais cette question entre déjà dans les décisions
de l’Arrêt n° 7. Ceci est également le cas pour la position du
Reich comme créancier-gagiste |

La Cour n’a donc pas à s’en occuper de nouveau. Si la
Pologne peut arriver à se prévaloir de l'article 256, c’est
devant un autre forum en dehors de la compétence de la Cour.
La créance qu’elle pourrait, éventuellement, se procurer devant
ce forum ne fait que créer pour la Pologne la situation qu’elle
reprendra dans l’avenir ce qu’elle aurait à payer à présent.
Une telle créance ne peut donc nullement être opposée à la
décision de l’Aïrêt n° 7, qui trouvera son exécution par l'arrêt
actuel. Partant, il n’est pas justifié d'entreprendre de nouveau
avec l'arrêt un examen de l’article 256. Non plus la Cour
doit-elle traiter de nouveau la question si le Reich est devenu
propriétaire par sa qualité apparente de créancier-gagiste.
Cette question concerne, comme du reste aussi la question de
l'article 256, un état existant bien avant l'arrêt, et l’on ne
saurait la renouveler sous prétexte que lors des arrêts précé-
dents il s’agissait de fixer le principe de dommages, mais
qu’actuellement le problème est de mesurer ce dommage.
Dans tous les deux cas on est devant une question tranchée.

Une question d’un intérêt juridique plus général se pose
quant à la situation de procédure de l'Allemagne ; que l’État
allemand est seul autorisé à ester en justice avec l'exclusion

des deux Sociétés est indéniable, puisqu'il s’agit d’un procès
tombant sous la compétence de la Cour permanente, accessible
95° ARRÊT N° 13. — OBSERVATIONS DE M. NYHOLM

aux États seuls. Mais quelle est la situation de l'Allemagne
quant aux réclamations d’une indemnité ? Il n’est pas à nier
‘que la condamnation doit être prononcée en la forme, au
profit de l’État allemand, mais puisqu'il s’agit des dommages
subis par d’autres, ce n’est pas en qualité de propriélaire que
l'Allemagne peut réclamer les indemnités.

Les prétentions émises dans les conclusions du Reich parais-
sent pourtant viser une adjudication en propriété comme répa-
ration des torts infligés à ses sujets. Dans l’arrêt, les expressions
sont variées («le montant de l’indemnité à laquelle a droit le
Gouvernement allemand en prenaiit comme mesure les dom-
mages subis par les deux Sociétés», page 55). Un autre passage
est ainsi libellé: «quelle est la somme qu'il convient d’allouer
au Gouvernement allemand afin de lui permettre de remettre
autant que possible les Sociétés dépossédées dans la situation
économique....?» (page 49). Une indication précise de la
situation du demandeur ne se trouve pas dans l'arrêt. Le
probléme parait pouvoir se résoudre selon les considérations
suivantes.

La créance des deux Sociétés est en‘elle-même une créance
nationale polonaise à faire valoir civilement contre le Gouver-
nement polonais et sous la législation polonaise; maisf'à la
suite de la Convention de Genève, la créance a acquis aussi
un caractère international. Par sa mainmise sur l'usine, le
’ Gouvernement polonais a aussi fait infraction aux obligations
par lui acceptées vis-à-vis de l’État allemand. En plaidant
cette infraction, l'Allemagne se base évidemment sur le tort
occasionné aux Sociétés, mais elle ne peut s’approprier l’indem-
nité comme sa propriété. L'Allemagne peut souffrir un dom-
mage moral par l’action polonaise, représenté par la demande
d’une somme fictive, et aussi, le cas échéant, un dommage maté-
riel, mais celui-ci toujours basé sur un fait touchant l'État
lui-même. Mesurer un tel dommage par le montant même
qui représente le dommage des sujets est une prétention qui
ne trouve aucun appui sauf pour des cas spéciaux où le tort
infligé aux sujets touche directement l’État comme étant
intéressé à titre privé dans l’entreprise. En l’espèce, un tel cas
aurait pu se présenter à cause de la situation de l’Allemagne
comme créancier-gagiste ; aucune prétention à ce sujet n'a
pourtant été émise dans l'affaire. L'État doit donc se borner
96 ARRÊT N° 13. — OBSERVATIONS DB M. NYHOLM

pour son compte aux réclamations des dommages moraux ou
matériels directement causés à lui.

. Mais, en méme temps, il a été établi par une jurisprudence
internationale que l’État peut faire valoir dans l'instance
internationale les réclamations de ses sujets, «prendre fait et
cause » pour eux avec le résultat que, naturellement, ces
réclamations doivent être jugées alors selon le droit inter-
national (voir jugements de la Cour permanente de Justice
internationale — affaires du Wimbledon et Mavrommatis).

Dans cette situation il se pose, après la création de la Cour
internationale, la nouvelle question, si l’État possède le droit
de s’approprier ou au moins de porter d'office les réclamations
des particuliers devant la Cour.

A ce sujet il paraît que rien ne fait présumer qu’en droit
international un changement a eu lieu dans les principes
généraux qui reconnaissent aux individus la protection de leurs
droits de propriété. Ceux-ci restent toujours protégés, et la
présentation d’une réclamation particulière dans une instance
internationale ne saurait être le résultat que de l’existence d’un
mandat tacite ou exprès, résultant soit d’une demande, soit
d'un consentement des Parties. Qu'il existe un tel mandat en
l'espèce ne saurait faire l’objet d’un doute. Il résulte du dos-
sier que l’État allemand opère en pleine collaboration avec les.
Sociétés qui, évidemment, ont fourni tous les renseignements
aux fins d'obtenir une issue favorable du procès. De ce qui
précède, il résulte que les demandes doivent être bien adjugées
au nom du Gouvernement allemand, mais seulement à titre de
mandataire des Sociétés. La Cour ne saurait donc allouer les
sommes à l'Allemagne sans autres commentaires et sanb se
rendre compte de la question si juridiquement l’État allemand
peut disposer librement du montant des indemnités comme
propriétaire et sans obligation juridique de verser l'indemnité
aux dépossédés. L'état du demandeur doit être envisagé
comme celui d'un mandataire.

* * *

La thèse ci-dessus développée a une répercussion sur la ques-
tion d’une condamnation globale du profit des deux Sociétés,
acceptée par l'arrêt. En effet, il n'existe dans le dossier aucune
97 ARRÊT N° 13. — OBSERVATIONS DE M. NYHOLM

trace de l'existence d’un mandat conférant à l’État allemand
le droit de confondre les deux créances. Au contraire, toutes
les plaidoiries ont été menées sur la base d’une séparation
complète." ~*~ 7 | .
La fusion des créances Oberschlesische et Bayerische, pronon-
cée d’office par l'arrêt, ne paraît donc pas trouver un appui en
droit. En outre, elle rencontre en fait de grosses difficultés.
La. créance de la Bayerische est composée d’une partie repré-
sentant un pourcentage sur les. bénéfices de l’Oberschlesische,
mais il existe d’autres créances spéciales, droits résultant de
l'administration de l'usine par rapport à d’autres usines réu-
nies en «concern» sous la direction de la Bayerische. En outre,
pour les rapports entre les Sociétés, les chiffres sont incom-
mensurables, s'agissant au point de vue financier d’un côté
d’un bilan de 1928 de l’Oberschlesische, soit une question de
capital, d’un autre côté pour la Bayerische d’une rémunération
d'exploitation allant jusqu'en 1941. Il ne paraît donc exister
aucune raison pour s’écarter des désirs exprès des Parties
exprimés dans les plaidoiries. |

Pour lla question de compensation, l'arrêt a conclu a ce
qu'il n'y a pas lieu de statuer, surtout pour la raison qu’en
tout cas la question n’a pas été présentée par la défenderesse.
Il paraît donc que la compétence est acceptée.

D'autre part, l'arrêt déclare (page 61): «Il est évident que
la question de savoir si le droit international admet la
compensation des créances et, dans l’affirmative, quelles sont
les conditions dans lesquelles la compensation est admise,
est, comme telle, en dehors de la compétence que la Cour
puise dans l’article 23 de la Convention de Genève. »

Cet alinéa paraît avoir comme conséquence l'affirmation de
-l’incompétence pour traiter le litige lui-même.

Il paraît cependant que la Cour, compétente pour juger
sur la créance en litige, aura aussi le droit de juger sur les
98 ARRÊT N° 13. — OBSERVATIONS DE M. NYHOLM

exceptions. À celles-ci, visant l’extinction de la créance, paraît
se joindre le constat d'un état de compensation qui fait dis-
paraître la créance. Dans le droit international, aucun principe

ne peut être soulevé qui établirait à ce sujet une différence
entre le droit national et international,

(Signé) D. G. NYHOLM.


DISSENTING OPINION OF JUDGE DE CASTRO
[Translation]

To my regret, I find that I am obliged to append a dissenting opinion
to the Advisory Opinion of the Court.

I agree with the majority of the Members of the Court on the question
of the Court’s competence to give the opinion, and I propose to give my
reasons on this point.

I am not in agreement with the conclusions reached by the majority of
the Members of the Court on the substance of the case, and E think that I
should set out the reasons which support my dissent.

*

I. PRELIMINARY QUESTIONS
A. Jurisdiction of the Court

1. The preliminary question of the Court’s jurisdiction to give an
opinion in the case has not been raised by the interested Parties, but no
forum prorogatum rule can apply in regard to advisory opinions and
“Nevertheless the Court, in accordance with its Statute and its settled
jurisprudence, must examine proprio motu the question of its own juris-
diction” (Fisheries Jurisdiction (United Kingdom v. Iceland) Jurisdiction
of the Court, Judgment, I.C.J. Reports 1973, p. 7)}.

2. The jurisdiction of the Court is based on Article 11 of the Statute of
the United Nations Administrative Tribunal, according to which the
Committee on Applications for Review of Administrative Tribunal
Judgements may request the Court to give an advisory opinion on certain
questions. This Article was based on Article XII of the Statute of the
ILO Administrative Tribunal, under which the question of the validity of
certain decisions given by the Tribunal can be submitted to the Court for
advisory opinion by the ILO Executive Board.

Before 1955 nobody appears to have maintained that Article XII was
legally unsound or conflicted in some way or other with the provisions

1 As I have occasion to observe, the consensual nature of the Court’s jurisdiction
does not operate where advisory opinions are concerned (separate opinion, 7.C.J.
Reports 1971, p. 174). In my view, Article 68 of the Statute only permits application to
advisory opinions of the rules peculiar to contentious cases with the implied reserva-
tion that such rules must not be irreconcilable with the nature of advisory opinions.

112
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 275

of the United Nations Charter or of the Statute of the Court.

3. Doubts with regard to the Court’s jurisdiction arose when it was
proposed to amend the Statute of the United Nations Administrative
Tribunal so as to create a remedy by way of an advisory opinion to be
given by the Court. The proposal to this effect originated in the grave
crisis that arose out of certain judgements given by the Tribunal in 1953
in favour of staff members of United States nationality who had been
accused of subversion. This explains why the discussions in the Special
Committee on Review of Administrative Tribunal Judgements, the Fifth
Committee and the General Assembly had a political flavour. Some legal
arguments on the Court’s jurisdiction were nevertheless relied on in this
controversy, and they should not be overlooked. One of the sponsors of
the proposed amendments remarked—and his remark was repeated by
others—that in the last resort it would be for the Court to rule on its own
competence to give an advisory opinion.

It is therefore not surprising that some doubts should have remained
with regard to the jurisdiction of the Court, even after the adoption of
General Assembly resolution 957 (X) of 8 November 1955 adding the
new Articles 11 and 12 to the Statute of the United Nations Administrative
Tribunal]. The objections raised against the Court’s jurisdiction have to
be examined. I do not find those known to me convincing.

4. The mechanism set up by Article 11 of the Statute of the United
Nations Administrative Tribunal (like that provided for by Article XII
of the Statute of the ILO Administrative Tribunal) is open to criticism
de lege ferenda as a “hybrid procedure” or “‘pseudo-advisory opinion”1,
inasmuch as the advisory procedure is, so to speak, made to do duty as a
form of cassation (with regard to the Organization, the Administrative
Tribunal and the Secretary-General) in proceedings between the United
Nations and one of its staff members. But this artifice does not deserve the
epithet fraus legis. It is a legitimate development of the law, on the lines
of the techniques of Common Law or the Roman praetor, whereby
existing provisions are employed for new ends. Article 11 is not contra
legem. There is no rule either in the Charter or in the Statute of the
Court which prohibits giving the advisory opinion?. It is true that the
force conferred upon the opinion will exceed the scope attached by the
Charter and the Statute to an advisory opinion, but the origin of that
force is outside the Charter and Statute. Any action to be taken pursuant
to the Court’s opinion by the Secretary-General or by the Administrative
Tribunal “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 contents of the
Opinion itself. Accordingly, the fact that the Opinion of the Court is

1 Mrs. Bastid sees it as ‘‘an exceptional adaptation of the rules generally applicable
to the Court”: Le Tribunal administratif des Nations Unies, Conseil d’Etat, Erudes et
documents, 1969, No. 22, p. 20, Note I.

2 On this statement, see para. 5 ef seqq.

113
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 276

accepted as binding provides no reason why the Request for an Opinion
should not be complied with.” (Judgments of the Administrative Tribunal
of the ILO upon Complaints Made against Unesco, Advisory Opinion,
1.C.J. Reports 1956, p. 84.)

The Court gives an advisory opinion endowed with the limited force
proper to it. Such force as provisions, agreements, statutes or rules
emanating from States or organizations may bestow on the opinion ante
factum or ex post facto neither diminishes nor enlarges the jurisdiction of
the Court.

5. The criticism derived from the imperative character of Article 34 of
the Statute of the Court is misdirected. The rule contained in that text is
limited to contentious cases, disputes between States, and does not affect
advisory opinions.

6. There is more substance in the following doubt: can the Committee
on Applications for Review of Administrative Tribunal Judgements
legitimately request the Court to give an advisory opinion (Art. 11 of the
Statute of the Tribunal)?

Supporters of the negative contend that the Charter (Art. 96) and the
Statute of the Court (Art. 65) give the right to request advisory opinions
_ef the Court solely to organs and specialized agencies which already exist
and have a personality of their own (what Art. 65 calls “bodies”) and
can in no circumstances confer such a power on a committee which is
composed of member States and was instituted for the sole purpose of
requesting advisory opinions of the Court.

7. Paragraph 4 of Article 11 of the Statute of the United Nations
Administrative Tribunal provides that, for the purpose of Article 11,
a committee is established and authorized under paragraph 2 of Article 96
of the Charter to request advisory opinions of the Court. This Article 11
was adopted by General Assembly resolution 957 (X). Now a “resolution
of a properly constituted organ of the United Nations which is passed in
accordance with the organ’s rules of procedure, and is declared by its
President to have been so passed, must be presumed to have been validly
adopted” (Z.C.J. Reports 1971, p. 22). The presumption of validity so far
as the powers conferred on the Committee by Article 11 are concerned
is buttressed by both the letter and the purposes of the United Nations
Charter and the Statute of the Court.

Capacity to request advisory opinions has been given to the General
Assembly, the Security Council and to other organs of the United Nations
and specialized agencies which may at any time be so authorized by the
General Assembly (Charter, Art. 96). There are no restrictions ratione
temporis. Organizations, organs or bodies yet to come (Statute, Art. 65)
may enjoy the right to request advisory opinions of the Court.

The organs that can be authorized to request advisory opinions are
not only the principal organs of the United Nations but also the subsid-
iary organisms or administrative instruments by means of which organi-
zations may exercise their rights, for example the Governing Body

114
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 277

of the ILO or the Executive Board of Unesco. It appears to me that the
General Assembly, which has the power to request opinions and authorize
other organs and specialized agencies to do so, and has also the power
of establishing subsidiary organs (Charter, Art. 22), can bestow on those
organs or on one of the elements of its administration the right to seek
advisory opinions (in eo quod plus sit, semper in est et minus, D. 50, 17,
110)1. The General Assembly can exercise its rights either itself or by
conferring them upon a particular organ (potest quis, per alium, quod
potest facere per se ipsum)—in the present instance on the Committee on
Applications for Review 2.

Despite the foregoing, the validity of the provision in Article 11
conferring on the Committee on Applications for Review the right to
seek advisory opinions has been doubted but, as I think, without good
reason. The Committee is really of a special nature 3. But, so far as we
are here concerned, this is because it is an organ which is independent
by reference to the system of judicial organization of the United Nations.
Article 11 is intended to effect its integration into that system. The
Committee is an organ which is supplementary to the Administrative
Tribunal; it was set up to provide additional guarantees of the judicial
function of the Tribunal. The United Nations has conferred specific
functions on the Tribunal and on the Committee, by giving them the
status of independent organs. This is what States themselves do when
they create a judicial organization equipped with independent and co-
ordinated organs 4.

Nor do I consider that one would be justified in denying the Committee
the right to seek advisory opinions from the Court on legal questions
arising within the scope of its activities (Charter, Art. 96, para. 2) on the
ground that it does not have the activities of an organ, or that it has no
activities of its own. The Committee does have activities, namely to
decide whether the objection to the Tribunal’s judgement has a substantial
basis, and if so, to request the Court to give an advisory opinion. I see no
valid reason for requiring that, in order to be regarded as an organ
within the meaning of Article 96 of the Charter, the organ in question
should have activities of a particular magnitude. The Committee is not
an organ unrelated to the Administrative Tribunal; it is a supplementary
organ, established in order to afford additional guarantees that the

1 As the Court once said, the General Assembly has the power to amend the Statute
of the Administrative Tribunal and “to provide for means of redress by another organ”
U.C.J. Reports 1954, p. 56).

2 The Committee was set up in order to be able to request advisory opinions.

3 On the nature of the Committee, compare A. M. Del Vecchio, I! Tribunale ammini
strativo delle Nazioni Unite, 1972, pp. 172 ff.

4 it has been said that the organization is “represented by one of its organs’’, namely
the Committee on Applications for Review: see Dehaussy, “La procédure de réfor-
mation des jugements du Tribunal administratif des Nations Unies”, Annuaire francais
de droit international, 1956, p. 476. This expression is ambiguous; it is more a question
of creation of an organ better to meet the needs of the organization, than one of
representation.

115
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 278

Administrative Tribunal will exercise its own function. The General
Assembly has conferred certain functions on the Tribunal and on the
Committee by setting them up as co-ordinated organs.

8. The frequently heard objection as to the political nature of the
Committee’s composition and the fact that its members do not necessarily
possess legal qualifications does not hold water. One need only recall
that the Charter confers the right to request opinions in the first place
on the General Assembly and the Security Council, 1.e., on bodies of an
undoubtedly political character.

It should also be observed that the expression ‘‘political nature”
may be ambiguous. One may say of a body the members of which are
appointed by States that it has a political character. But it is not correct
so to describe it when it performs judicial functions. It is not difficult to
demonstrate by means of examples that a distinction must be made
between appointment and functions; thus in some States, the ministère
public carries out the screening of applications for cassation, and does so
as a judicial organ. When deciding whether or not effect will be given to
an application by a staff member that an advisory opinion of the Court be
requested, the members of the Committee are not engaged in political
activity, but are and must be carrying out a judicial activity.

9. The objections made to the competence which the Court derives
from Article 11 of the Statute of the United Nations Administrative
Tribunal seem to have been forgotten once the political controversies of
1953 had died down.

The Court’s Advisory Opinion on Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against Unesco (I.C.J. Reports
1956) would seem to have had a decisive effect in the same direction. In
1956 the Court had to decide a question virtually identical with the one
arising in the present case, namely that of its jurisdiction by virtue of
Article XII of the Statute of the ILO Administrative Tribunal. In the
1956 Advisory Opinion referred to, the Court did not find that there were
in the Charter or in its own Statute any obstacles to the jurisdiction
conferred upon it by that Article XII. The request for advisory opinion
did indeed relate to a legal question that had arisen within the scope
of the activities of the Organization. The only doubt stemmed from
the necessity, owing to ‘‘the judicial character” of the Court, for observance
of the “principle of equality of the parties”, which follows from the
requirements of good administration of justice; but, as the Court said,
“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” and “although no oral proceedings were
held, the Court is satisfied that adequate information has been made
available to it” (Z.C.J. Reports 1956, p. 86).

Judges Winiarski, Klaestad and Sir Muhammad Zafrulla Khan, in
their separate opinions, showed their concern for the safeguard of the
equality of the parties before the Court, but they expressed no doubts as
to the competence of the Court. President Hackworth, in his dissenting

116
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 279

opinion, began by saying that he concurred “in the conclusion of the
Court that it is competent to give an Advisory Opinion in response to
the request from the United Nations Educational, Scientific and Cultural
Organization, and that it should do so” (1.C.J. Reports 1956, p. 116).
Like Vice-President Badawi and Judge Read, President Hackworth
grounded his dissent on an argument relating to the ILO Administrative
Tribunal’s lack of jurisdiction to deal with the subject-matter of the case.

10. Article 11 of the Statute of the United Nations Administrative
Tribunal endeavours to safeguard the principle of equality in the pro-
ceedings by placing the Secretary-General under an obligation to transmit
to the Court the views of the person in respect of whom the judgement
was rendered. The General Assembly, for its part, recommended in
resolution 957 (X) that ‘Member States and the Secretary-General
should not make oral statements before the International Court of
Justice in any proceedings under the new article 11 of the Statute of the
Administrative Tribunal”.

11. The authority of the Advisory Opinion of 1956 in the Unesco case
and the soundness of its reasoning explain why such distinguished
writers as Rosenne and Mrs. Bastid do not, when they come to examine
Article 11 of the Statute of the United Nations Administrative Tribunal,
express the slightest doubt as to the right of the Committee on Applica-
tions for Review to request advisory opinions of the Court or as to the
Court’s competence to give such opinions; they do not even cite the
objections to the Court’s jurisdiction discussed above (paras. 4-8) 1.

I myself do not, in present circumstances, discern any reasons for
change in the criterion applied by the Court.

B. Advisability of Giving an Opinion

12. The Court may give an advisory opinion (Statute, Art. 65); there-
fore it may choose not to do so. But a refusal by the Court may not be
arbitrary; it must be based on sound and weighty reasons. The Court has
never refused to give an advisory opinion sought by an organ authorized
to request one, with the sole exception, going back to the Permanent
Court, of the Status of Eastern Carelia (Advisory Opinion, 1923, P.C.L.J.,
Series B, No. 5) 2, which was a very special case.

The view has been expressed that the function assigned to the Court
by Article 11 of the United Nations Administrative Tribunal is not
consonant with the dignity and standing of the Court. One may reply
that the dignity of a judicial organ is not to be measured by the prestige
of those subject to its jurisdiction—be they States or private persons—but
derives from its contribution to the upholding of justice.

1 Rosenne, The Law and Practice of the International Court, 1965, Vol. II, pp. 686-
690; Mrs. Bastid, loc. cit., pp. 19-21; see also Del Vecchio, loc. cit., pp. 163-184. Koh,
in The United Nations Administrative Tribunal, 1966, p. 92, refers to these examinations
of the question, but without disputing the Court’s jurisdiction. Dehaussy has no doubt
as to the Court’s jurisdiction, despite his reservations de lege ferenda: loc. cit., p. 479.

2 As to this Advisory Opinion, see my separate opinion in I.C.J. Reports 1971, p.171.

117
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 280

13. “The Court could, of course, acting on its own, exercise the
discretion vested in it by Article 65, paragraph 1, of the Statute and
decline to accede to the request for an advisory opinion. In considering
this possibility the Court must bear in mind that: ‘A reply to a request
for an Opinion should not, in principle, be refused.” (.C.J. Reports
1951, p. 19.) The Court has considered whether there are any ‘compelling
reasons’, as referred to in the past practice of the Court, which would
justify such a refusal. It has found no such reasons. Moreover, it feels
that by replying to the request it would not only ‘remain faithful to the
requirements of its judicial character’ (Z.C.J. Reports 1960, p. 153), but
also discharge its functions as ‘the principal judicial organ of the United
Nations’ (Art. 92 of the Charter).” (7.C.J. Reports 1971, p. 27.1)

‘14. In the Unesco case, the Court, after having examined the particular
nature of the procedure provided for in Article XII of the Statute of the
ILO Administrative Tribunal—which is very similar to Article 11 of the
Statute of the United Nations Administrative Tribunal—stated:

“In view of this [respect for the principle of equality of the parties]
there would appear to be no compelling reason why the Court
should not lend its assistance in the solution of a problem confron-
ting a specialized agency of the United Nations authorized to ask
for an Advisory Opinion of the Court. Notwithstanding the per-
missive character of Article 65 of the Statute in the matter of advisory
opinions, only compelling reasons could cause the Court to adopt
in this matter a negative attitude which would imperil the working of
the régime established by the Statute of the Administrative Tribunal
for the judicial protection of officials.” (C.J. Reports 1956, p. 86.)

15. It might also be considered that the possibility of some supervision
of the decisions of the United Nations Administrative Tribunal by the
Court, which is afforded by Article 11 of the Statute of the Tribunal,
enlists “the support of the Court for the good functioning of the Organi-
zation” U.C.J. Reports 1972, p. 60), and thus enables it to fulfil its task
as an organ of the United Nations.

C. Application of Article 11 of the Statute of the United Nations
Administrative Tribunal

16. Article 11 of the Statute of the United Nations Administrative
Tribunal is the source of the Court’s jurisdiction to give an opinion in
the present case, and thus defines the extent of its jurisdiction. It will be
as well to consider this text here, for the purposes of its application by the
Court.

17. A member State, the Secretary-General, or the person in respect
of whom a judgement has been rendered by the Administrative Tribunal,

1 See, in this sense, my separate opinion in I.C.J. Reports 1971, pp. 170 and 173.

118
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 281

has the power to object to the judgement and to ask the Committee on
Applications for Review to request an advisory opinion of the Court on
the matter. In any case in which a request is made for an advisory opinion,
the Secretary-General shall either give effect to the opinion of the Court,
or request the Tribunal to confirm its original judgement or give a new
judgement in conformity with the opinion of the Court.

The Court is not called upon to judge the case afresh; it does not itself
play the part either of a court of appeal or of a court of cassation. When
an advisory opinion is requested, the Court gives it in order to co-operate,
within well-defined limits, in the judicial function of the Administrative
Tribunal, and to lend its support for the proper functioning of the
Organization.

18. Article 11 lays down a limited number of grounds on which the
judgement may be challenged. There is thus a numerus clausus of questions
on which the Court may be asked to give an opinion: the judgement may
be challenged on the grounds that the Tribunal has exceeded its juris-
diction or competence, or 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.

It should be observed that the grounds on which the judgement may
be objected to are questions of law, the only questions on which the
Court may give an opinion (Charter, Art. 96; Statute, Art. 65). The Court
has no jurisdiction to consider all the complaints made by the person
who challenges the judgement. It has no power to re-examine the evidence
laid before the Administrative Tribunal, still less to consider facts or
evidence which were not laid before the Tribunal, or which were not
taken into account by it !. Thus the Court is legally debarred from taking
into account the presentation of the case in the corrected statement of
the views of Mr. Mohamed Fasla. This is certainly a very brilliant account
of the matter, but the Court cannot follow it; it cannot step outside the
limits of its jurisdiction. Still less can it take account of presumptions,
rumours, hearsay, of the multiplicity of ‘‘perhaps’’, “presumably”, ‘‘it
would seem’’, to be found all over the statement. Nor can the Court
take note of documents which were not laid before the Administrative
Tribunal. Finally, the Court can say nothing about those of Mr. Fasla’s
claims which do not fall within the scope of the request for advisory
opinion; it may not go beyond its jurisdiction.

19, Inthe advisory proceedings in the Unesco case in 1956, the question
was raised of the proper method of interpreting the provisions governing

1 One of the /eitmorive of the discussion on the revision of the Statute of the Admini-
strative Tribunal was that the review would not involve re-opening questions of fact.
The Court will have to examine the facts as established by the Tribunal. It does not play
the part of a court of appeal; its role has a certain analogy with that of a court of cas-
sation, since it is confined to the grounds of objection advanced by the applicant which
have been regarded as substantial by the Committee, and to the grounds for review
permitted by Article 11 of the Tribunal’s Statute.

119
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 282

the functions of the ILO Administrative Tribunal. The international
character of the Tribunal was relied on in support of a restrictive inter-
pretation of these provisions. The Court’s answer on this point was as
follows:

“The Court does not deny that the Administrative Tribunal is an
international tribunal. However, the question submitted to the
Tribunal was not a dispute between States. It was a controversy
between Unesco and one of its officials. The arguments, deduced
from the sovereignty of States, which might have been invoked in
favour of a restrictive interpretation of provisions governing the
jurisdiction of a tribunal adjudicating between States are not relevant
to a situation in which a tribunal is called upon to adjudicate upon
a complaint of an official against an international organization.”
(C.J. Reports 1956, p. 97.)

The Court thus drew attention to the way in which the internal
regulations of organizations should be interpreted when a decision has
to be given on legal questions arising within the scope of their activities.
The law applicable to the relationships between the staff member and the
administration in an international organization can be described as
international, but solely in order to explain the lack of jurisdiction of
municipal tribunals to deal with such disputes. They are not true inter-
national disputes, but cases to be determined on the basis of an internal
system of law—the internal law of the organization—which must be
interpreted as such, in conformity with the object and purpose of the
rules which it lays down !.

20. Article XII of the Statute of the Administrative Tribunal of the
ILO gives the Executive Board (in the case of Unesco) the right to submit
the question of the validity of the Tribunal’s decision to the International
Court of Justice for an advisory opinion in any case in which it “challenges
a decision of the Tribunal confirming its jurisdiction, or considers that a
decision of the Tribunal is vitiated by a fundamental fault in the procedure
followed”.

The power granted to the Governing Body to challenge decisions of
the Tribunal is a very limited one; the terms of Article XII have been
relied on in support of the view that this power is confined to cases of
ultra vires and error in the application of formal procedural rules, and
that Article XII does not make it possible to challenge a decision of the
Tribunal on the grounds of a failure of justice on the merits.

21. Article 11 of the Statute of the United Nations Administrative
Tribunal presupposes a complete and, as it were, “Copernican”’ change,
as compared with Article XII of the Statute of the ILO Administrative
Tribunal.

The political motive for the proposal of the new Article 11 was that of

‘1 The Administrative Tribunal thus takes into account the principle o1 effectivity—
“must give the maximum effect to these rules” : see Koh, loc. cit., p. 84.

120
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 283

affording States means of challenging judgements of the Tribunal. But
in the draft texts submitted, as in the discussions in the Special Committee,
the Fifth Committee and the General Assembly, a new spirit, broader
and more just, made itself felt.

The right to challenge the Tribunal’s judgement ceased to be a privilege
of the highest administrative body; it was of course conferred upon
member States and upon the Secretary-General, but it was also conferred
upon “the person in respect of whom a judgement has been rendered by
the Tribunal”. Thus staff members obtained the right to challenge
judgements.

During the United Nations discussions, the representatives of various
States sought to show that one of the objects of the reform ought to be to
strengthen the legal situation of the staff, to take account of their legitimate
interests, to ensure security of employment for staff members, and strict
respect for their rights 1.

22. Nor is the scope of Article 11 confined to revision of a judgement
for defects of form; it also contemplates error of law “relating to the
provisions of the Charter of the United Nations”.

These words have been interpreted as covering “‘not only interpretations
of the provisions of the Charter but also the interpretation or application
of staff regulations deriving from Chapter XV of the Charter” (Mr.
Evans, A/AC.78/SR.10, p. 3); they cover questions under Articles 97,
100 and 101 of the Charter (Mr. Bender, ibid., p. 6); they cover, inter
alia, ‘‘such questions as whether the Secretary-General’s judgment should
be upheld in regard to the conduct of the staff member and the United
Nations standards of efficiency, competence, and integrity as prescribed
in accordance with Article 101 of the Charter...” (Mr. Merrow, GA, OR,
10th Session, Fifth Committee, 494th Meeting, p. 44, para. 20) 2.

23. An important divergence from Article XII of the Statute of the
ILO Administrative Tribunal was introduced in the third ground of
challenge laid down in Article 11 of the Statute of the United Nations
Administrative Tribunal. In place of a “fundamental fault in the procedure
followed” there is reference to the Tribunal having “committed a funda-
mental error in procedure which has occasioned a failure of justice”. The
source of the mention of “failure of justice” was an amendment proposed
by India and accepted without discussion 3. The effect thereor is far-
reaching: the formula enables the Court, in the advisory opinion re-
quested, to examine the question whether the decision of the Adminis-
trative Tribunal on the merits is just.

1 While also avoiding anything which would weaken the authority of the Admini-
strative Tribunal or afford opportunities of hampering the Secretariat in the exercise of
its functions.

2 See also Del Vecchio, loc. cit., pp. 168 ff.

3 It was intended “to preclude review on account of trivial errors in procedure or
errors that were not of a substantial nature’ (GA, OR, 10th Session, 5th Committee,
496th Meeting, para. 26).

121
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 284

24. Each of the grounds for revision laid down in Article 11 is to be
interpreted in the spirit with which the Article as a whole is imbued-—the
spirit of its reference to the provisions of the Charter and to failure of
justice. The Court must consider whether or not there was failure of
justice, and for this purpose must ascertain whether the judgement
respects the purposes and principles of the United Nations, the general
principles of law (Art. 38 of the Statute), and in particular the principles
of administrative law, labour law (relations between the organization
and staff members), and procedural law !.

The phrase “which has occasioned a failure of justice” has independent
significance. There is no valid reason for considering that it refers to
defects in the procedure (error in procedendo). It cannot be supposed
that the expression is an unnecessary repetition of the words ‘“‘fundamen-
tal error”. The failure of justice contemplated is a failure of justice on the
merits (error in judicando), the result of the error and not the error itself
committed in the procedure.

{am unable to perceive any reasons weighty enough for not interpreting
this phrase in its literal sense, or for narrowing down its scope to such
an extent as to render it unnecessary. Nor are there any grounds for
attributing such an intention to the Indian delegation and to the majority
in the Assembly which voted for the adoption of Article 11.

Study of the discussions in the Fifth Committee rather leads to the
view that opinion moved in a direction favourable to the rights of staff
members, and towards an interpretation which permits of errors of law
being taken into account, though to a very limited extent2. This tendency
did not finally assurne a concrete form, but one may consider that it
operated in favour of acceptance of the Indian proposal. That proposal
made it possible to satisfy to some extent the desire expressed by some
delegates that the Court should give an advisory opinion in order to
resolve a legal problem in a way which would be equitable for all those
concerned.

IT. QUESTIONS SUBMITTED TO THE COURT FOR ITS OPINION

A. Has the Tribunal Failed to Exercise Jurisdiction Vested in it as
Contended by Mr. Fasla?

25. In his application to the Committee objecting to the Tribunal’s
judgement, the applicant claims that the Tribunal failed to exercise its

1 Art. 38 of the Statute applies in disputes between States, In its advisory opinion
the Court applies the internal law of the Organization, which it supplements with the
rules of common law of States; the Administrative Tribunal “often relies on funda-
mental legal concepts which have a place in any legal system” (Mrs. Bastid, loc. cit.,
p. 26. On the applications of the general principles of law and equity see Koh, /oc. cit.,
pp. 82 and 83).

2 The concern generally felt was to exclude the possibility of objections to judgements
relating to factual matters.

122
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 285

jurisdiction in that the Tribunal did not fully consider all his claims,
that is to say item by item. The Committee on Applications for Review
considered that there was “a substantial basis” for Mr. Fasla’s appli-
cation, 11 of its members being in favour of asking the Court to give an
advisory opinion on the question of failure by the United Nations
Administrative Tribunal to exercise jurisdiction.

26. The intended meaning in Article 11 of the words “failed to exercise
jurisdiction vested in it” {n'a pas exercé sa juridiction) does not seem
clear. Is it the everyday meaning of the words which is intended—does
it mean that the Tribunal failed to consider and pass upon one or more
of the applicant’s claims? In a more technical sense, on the other hand,
such an omission may be regarded only as an error or defect in the proce-
dure. The Tribunal does not exercise its jurisdiction (n’exerce pas sa
juridiction) when it declares that it has no competence, whether the
question of lack of competence is raised by one of the parties or by the
Tribunal proprio motu; on the other hand, it does exercise its jurisdiction
even if it commits an error in the procedure by not examining one of the
applicant’s claims.

The distinction does not seem to be an easy one to make in practice.
In the written statements of Mr. Fasla, the difficulty is got round by
accusing the Tribunal of having “failed to exercise its jurisdiction and/or
committed a fundamental error in procedure”.

It is true that in the municipal codes of various States, no distinction
is sometimes made between procedural error in judgments given infra
petita (judgments in which the judge does not decide all the points in
issue) and failure to exercise the power conferred on the judge; the reason
for this is that by refraining from determining some of the points in
issue, the judge will not have exercised his jurisdiction in respect of those
points.

27. It seems to me however that Article 11 contemplates jurisdiction
in its strict or technical sense. The distinction made in the phrase “has
exceeded its jurisdiction or competence or ... has failed to exercise
jurisdiction vested in it” ! militates in favour of this interpretation. In
my opinion, the Tribunal did not deny that it had jurisdiction to judge
the case, and it did not refuse to receive and consider the claims of Mr.
Fasla.

It is under the heading of ‘fundamental error in procedure” that the
question must be examined.

The distinction is of practical importance. In a case in which juris-
diction was not exercised, there could be no question of the case being
wrongly decided (mal-jugé, rendered in Art. 11 as “failure of justice”);
but an error in procedure can only be taken up if this condition is
fulfilled.

1 In the text recommended by the Special Committee, the passage referring to
failure “‘to exercise jurisdiction vested in it” does not appear.

123
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 286

B. Has the Tribunal Committed a Fundamental Error in Procedure
which Has Occasioned a Failure of Justice?

28. Error and failure of justice. The question here raised is a complex
one. Fundamental error in procedure is a ground for revision if it has
occasioned a failure of justice. It is not such a ground unless there has
been a failure of justice.

It would seem logical to begin by considering whether there has been
a failure of justice. If there has been none, even the most fundamental
error in the procedure cannot be made a ground for revision.

It must first of all be borne in mind that the reference to failure of justice
gives a different aspect to this ground; it ceases to have the formalistic
nature appropriate to a defect in procedure, and acquires a more substan-
tive nature, in harmony with the respect due to the provisions of the
Charter.

There is a close interdependence between the error and the failure of
justice, but it is not necessary that the error should be the cause of the
failure of justice, if causality is understood in a purely logical way, or as
analogous to the relation of cause and effect in the law of tort. It is
sufficient that the failure of justice should have been occasioned by it
(French text: provoqué, that is to say, called from outside {pro-vocare)).
Of the two elements involved in this ground, that relating to the justice
of the judgement is of primary importance.

The word “‘occasioned” is not a technical term. It was chosen to avoid
imposing an obligation to prove that the error was the conditio sine qua
non of the failure of justice. It thus gives the Review Committee, and
consequently the Court, the opportunity of applying the Statute in
accordance with common sense. The error preceding the injury suffered
by the victim is to be regarded as ‘a circumstance generally favouring
failure of justice” ; the link to be established is the existence of a reasonable
presumption that the error favours a failure of justice or is the occasion
thereof 1.

29. The facts to be considered. To ascertain whether there was a failure
of justice, one must first all of ascertain which facts are of importance in
the case. As has been said above (para. 18), the Court cannot go outside
the bounds of its competence; it must confine itself to the facts examined
and accepted as proved in Judgement No. 158 of the Administrative
Tribunal 2.

30. Mr. Fasla entered the service of the United Nations under a
contract which, after several prolongations, was to expire on 31 December
1969. |

1 Paul tells us that ‘er qui occasionem praestat, damnum fecisse videtur”, D.9, 2, 30,

.3.
PE The Court does not have to examine Mr. Fasla’s allegations that he was persecuted
and even punished for having acted loyally towards the United Nations, by reporting
the abuses and improper practices of a superior. There may be some indication that

this was the case, but the matter was not duly argued and proved before the Admin-
istrative Tribunal.

124
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 287

The Chief of the UNDP Personnel Division informed Mr. Fasla, by
letter of 22 May 1969, that, as the Director of the Bureau of Adminis-
trative Management and Budget of UNDP had explained to him, “every
effort will be made to secure another assignment for you”.

The chances of finding an official another assignment in the Organi-
zation, in the specialized agencies, and even outside the United Nations,
depend on the assessments and notes made in the administrative file and
in the fact sheet of the person concerned.

Mr. Fasla’s file was ‘incomplete and misleading” and his fact sheet
was “incomplete” (to adopt the words of the Joint Appeals Board),
because of the carelessness and ill-will of certain officials of the Organi-
zation.

In the Tribunal’s opinion, the letter of 22 May 1969 constituted ‘‘a
formal commitment by the Respondent to try to find another assignment
for the Applicant. Such a commitment to make ‘every effort’ obviously
implies an obligation to act in a correct manner and in good faith’. The
Tribunal considered that this commitment ‘was not correctly fulfilled’,
since the information concerning Mr. Fasla’s service “had serious gaps’’,
and was not “‘complete and impartial”.

The Tribunal held that the report of September 1970, which was very
unfavourable to the applicant, could “be due only to a violence of
feeling and lack of self-control which, in this case, revealed prejudice
on the part of the first Reporting Officer”; this prejudice shown by the
first Reporting Officer was in no way corrected by the second Reporting
Officer, who adopted the terms of the first Officer, and did not take into
account information favourable to Mr. Fasla ‘from an authorized person
who had been requested to make an investigation of the mission in
Yemen”.

The Administrative Tribunal concluded that the prejudice shown by
the first Reporting Officer was in no way corrected by the superior
Officer ‘‘as he was obliged to do under the Staff Rules”, that the Organi-
zation allowed a report “‘manifestedly motivated by prejudice” 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, that the periodic report
“is invalid” and that ‘the Respondent did not perform in a reasonable
manner the obligation which he had undertaken to seek an assignment
for the Applicant” 1.

1 The respondent has not contested the Tribunal's judgement; he therefore accepts
the facts stated therein as proved.

In order properly to understand the decisions of the Tribunal, one must bear in mind
that, in the practice of the United Nations and the specialized agencies, “‘fixed-term
contracts are not like an ordinary fixed-term contract between a private employer and
a private employee” (.C.J. Reports 1956, p. 91), and also that “there may be circum-
stances in which the non-renewal of a fixed-term contract provides a legitimate ground
for complaint” (ibid.). This practice is reflected in Article 4.4 of the Staff Regulations.

In municipal law, contracts must be “performed in good faith”; they “bind not only

125
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 288

31. The Tribunal awarded the applicant compensation in lieu of
execution of the obligation undertaken by the respondent to seek an
assignment for the applicant. The Tribunal fixed as the sole compensation
for all damage suffered by Mr. Fasla a sum equal to six months’ net base
salary of the applicant.

32. The Applicant’s claims. Mr. Fasla has also sought compensation
for the injury sustained by him as a result of the prejudice displayed
against him, compensation for the emotional and moral suffering inflicted
upon him, compensation for the damage inflicted on his professional
reputation and career prospects as a result of the circulation by the
Respondent, both within and outside the United Nations, of incomplete
and misleading information concerning the applicant !.

33. The Judgement of the Administrative Tribunal. The applicant was
able to criticize the Tribunal’s Judgement on two grounds: first that it
did not take into account several of his claims, and secondly that it did
not grant sufficient compensation for the heads of damage which the
Tribunal did examine.

34. In its statement of facts, the Tribunal did not fail to mention the
series of acts causing injury to the applicant originating from the negli-
gence and prejudice (dishonest conduct) of certain officials of the Organi-
zation, but it subsequently failed to give a decision on several of the
applicant’s complaints, which were well founded in law, and over-
looked the fact that he who causes injury is under an obligation to make
good the damage he has caused.

35. According to the Tribunal, the Organization undertook a formal
commitment to try to find another assignment for Mr. Fasla, and did
not in fact do so ‘tin a correct manner and in good faith”. The Tribunal
also observed that it was only possible to remedy the situation by the
award of compensation, and it fixed the compensation at a sum equal
to six months’ net base salary for the applicant.

Compensation for injury must be related to the damage and loss
suffered; otherwise there is a failure of justice.

36. The letter of 22 May 1969 gave rise, according to the Tribunal,
to an obligation for the respondent to endeavour to find a new assignment
for the applicant. The Joint Appeals Board, in its report of 3 June 1970,
made the following recommendation: “UNDP should make further
serious efforts to place the appellant in a suitable post either within UNDP

to what is expressed therein, but also to all consequences attached to the obligation
according to its nature by equity, custom or law” (Arts. 1134 and 1135 of the French
Civil Code). Hence the legitimate nature of the hopes born of the employer’s conduct
towards the employee. In case of non-performance, the obligation is resolved by the
award of damages. These general principles apply to the contractual relationship
between the United Nations and its staff members.

1 J do not mention here all Mr. Fasla’s claims, but merely those which, in my view,
could have been the subject of a fundamental error in procedure which occasioned a
failure of justice.

126
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 289

or with one of the other international organizations”. The Board also
held that “the performance record of the appellant is incomplete and
misleading and that this seriously affected his candidacy for further
extension of his contract or for employment by other agencies”.

The Joint Appeals Board recommended the payment of a sum equiva-
lent to six months’ salary to Mr. Fasla. This recommendation is explained
by the fact that the compensation was assessed taking into account the
period of six months which had elapsed between the end of the applicant’s
contract (31 December 1969) and the date of the Board’s report (3 June
1970). During that period, account had to be taken of Mr. Fasla’s hopes
that he would be accepted for employment in an international organi-
zation. But the recommendations of the Board themselves further
nourished the hopes of Mr. Fasla, who could legitimately have continued
to cherish them until the Judgement of 28 April 1972.

37. The Tribunal noted that UNDP did not fully comply with the
recommendation that it should correct the file and fact sheet of Mr. Fasla,
so that if the new fact sheet had been circulated, ‘“‘it would not have
elicited a more favourable response from prospective employers than the
fact sheet prepared in 1969 1”,

The Tribunal concluded that the respondent had not fulfilled the
obligation which he had undertaken to seek an assignment for Mr. Fasla,
and also noted ‘that it is not possible to remedy the situation by re-
scinding the contested decision or by ordering performance of the
obligation contracted in 1969”.

38. It is noted that, as a result of negligence and ill-will on the part of
the respondent, and despite his promises, Mr. Fasla was unable to obtain
an assignment in the Organization, and it was made practically impossible
for him to obtain a post elsewhere.

39. The Tribunal has the power and the duty, should the execution of
the obligation relied on not be possible, to assess the extent of the damage
suffered. In view of the Tribunal’s finding that it was not possible to
carry out the obligations undertaken by the Organization towards Mr.
Fasla, and the existence of very serious damage, the Tribunal should
have granted adequate compensation.

In accordance with the principles of law, the existence of injury resulting
from a fault involves an obligation to compensate. Where specific relief
is not possible, because the person responsible cannot or will not provide
it (nemo potest praecise cogi ad factum), there is to be equivalent compen-
sation. Such compensation must cover the damnum emergens and the
lucrum cessans. The amount must be such that the injured party is
restored as nearly as possible to the position in which he would have been
if there had been no fault on the part of the respondent, and this responsi-

1 The Tribunal regarded the decision taken by the United Nations Administration,
not to employ Mr. Fasla in any event, as not capable of being reversed.

127
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 290

bility must be heavier still if the injury results from dishonest conduct.

The United Nations Administrative Tribunal considered that the
promise made to Mr. Fasla in the letter of 22 May 1969 was not kept, and
that it could no longer be performed, through fault and ill-will on the
part of the respondent. The expectation created by such a promise was
strengthened by the report of the Joint Appeals Board (3 June 1970) and
remained alive up to the date of the judgement (28 April 1972). The
injury suffered by Mr. Fasla thus consists of the loss of his salary up to
this latter date, after which he had to look for a position outside the
Organization. One must also take into account the damage and the loss
of salary during the period he needed to find another post !.

It should be observed that the Administrative Tribunal failed to
examine other complaints concerning injury suffered by Mr. Fasla. It
left on one side, without comment, the injury and damage resulting from
the injury to Mr. Fasla’s professional reputation, deriving from the
misleading nature of the uncorrected file and fact sheet; this is a serious
fault, for which the Organization is responsible.

It is true that, by virtue of an abnormal and inequitable rule (odiosa
sunt restringenda) in the Statute of the United Nations Administrative
Tribunal, compensation cannot exceed the equivalent of two years’ net
base salary of the applicant. The Tribunal may, however, in exceptional
cases, order the payment of a higher indemnity (ibid., Art. 9, para. 1).

In the case which has been brought before the Court, the injury caused
to Mr. Fasla is of an exceptional nature as to its origin and to its extent;
there was failure to carry out a promise, and serious damage to Mr.
Fasla’s professional reputation and career, damage resulting from the
dishonest and improper conduct of officials of the Organization.

The Administrative Tribunal therefore appears to have committed
a failure of justice by limiting the compensation granted to six months’
salary; it should have fixed ‘‘what the Court, in other circumstances,
has described as the true measure of compensation and the reasonable
figure of such compensation” .7.C.J. Reports 1956, p. 100, quoting
LC.J. Reports 1949, p. 249).

40. Error in the procedure. Complaint has been made that the Tribunal
did not consider all the applicant’s claims, and in particular the claims for
compensation concerning damage caused to Mr. Fasla with regard to

1 In order to determine the extent of the injury suffered, the United Nations Admin-
istrative Tribunal has said that it must “consider to what extent the applicant has
expectation of continued employ:ent, taking into account the terms and nature of
the contract, the Staff Rules and Regulations and the facts pertaining to the situation
and must evaluate the applicant’s chances of earning a livelihood after separation from
the United Nations” (Eldridge case, UNAT Judgement No. 39, p. 184; quoted in Koh,
doc. cit., p. 85, note 134).

128
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 291

his career prospects and professional reputation, and for his emotional
and moral suffering, each due to the fault of the respondent.

It is also complained that the Tribunal did not consider these claims,
and dismissed them en bloc and without discrimination between them,
and without giving reasons, when the Tribunal stated that “the other
requests are rejected”’.

41. Fundamental errors in the procedure. In procedural law, lack of
correlation between the judgment and the subject-matter of the application
is regarded as a fundamental error.

A judgment may be invalid through going too far (ultra petita) or not
going far enough (infra aut minus petita). It fails to go far enough “if
no decision has been given on one of the heads of claim!”. The Court
must render a decision according to the petitum in the application (senten-
tia debet esse conformis libelli), and the judgment should not leave out any
of the claims made in the party’s submissions. A judge does not fulfil his
judicial duty (judex decidere debet) if he fails to give a decision on one of
the causae petendi of the application (non est judex minus petita partium).

In municipal law, this failure is considered so serious that the remedies
of requéte civile and pourvoi en cassation are available in respect of it.
It is fully justifiable to describe it as a fundamental error in the procedure.

42. An error in procedure is fundamental also if it occasions a failure
of justice.

Moral damage should be compensated according to the general
principles of law, and such compensation is the guarantee of human
rights. Its importance in law is well known. The United Nations Charter
begins with an affirmation of faith in ‘‘fundamental human rights, in the
dignity and worth of the human person’’, a doctrine which is taken further
in the Universal Declaration. of Human Rights, according to which
“No-one shall be subjected to ... attacks upon his honour and reputation”’
and “Everyone has the right to the protection of the law against such...
attacks’’2. The protection due to the dignity of the human person applies
to honour and professional reputation. But the Tribunal did not look into
the injury to the professional honour and reputation of Mr. Fasla, and
this defect influenced the whole of its Judgement; it completely distorted
the way in which the whole case was envisaged.

43. The Tribunal considered Mr. Fasla’s claims as based upon the
non-fulfilment of the promise by the administration to do everything

1 This is how Article 480 of the French Code of Civil Procedure adopted in 1806
expresses the principle; I quote the French Code because many other codes, which I
will not quote in order not to overburden this opinion, were modelled upon it. See also
an observation in Z.C.J. Reports 1950, p. 402.

2 On the fundamental rights of the human person, see I.C.J. Reports 1970, p. 32. The
Administrative Tribunal of the League of Nations recognized a contrario the right to
compensation for moral damage: Judgement No. 13, 7 March 1934, In Judgement
No. 99 (M.A. case), the United Nations Administrative Tribunal decided to award
compensation for moral damage (see Mrs. Bastid, /oc. cit., p. 27).

129
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 292

within its power to find him an assignment in the Organization. But
this is to take the wrong view of the matter.

It is not the non-fulfilment of the promises which is of major impor-
tance. The heart of the matter is the fact that there was damage to Mr.
Fasla’s professional honour as a result of the improper and dishonest
conduct of certain officials, for which the Organization must bear the
responsibility, and which brought about the breach of the promise. But
in addition and above all, the injury to Mr. Fasla’s professional honour
was the origin of the financial and moral damage which he suffered;
it was the unsurmountable obstacle which prevented him from obtaining
an assignment with the Organization, or finding one outside the Organi-
zation.

The Tribunal did not directly consider the claim for compensation for
injury to professional honour; this is the only possible explanation for its
limiting the compensation granted to six months’ salary.

44. In the respondent’s written statement to the Court, it is stated
that the Administrative Tribunal took account of Mr. Fasla’s claim for
damages in respect of his professional reputation and career prospects, as
it included that claim in its recitals of the facts (para. 27).

The respondent’s argument is misconceived. The Judgement is not
being criticized for giving an incomplete statement of the facts. The
criticism made of the Tribunal is that it failed to consider and pronounce
in its Judgement upon one of the heads of claim, the one which is the
central point of the case. Thus it committed a fundamental error in the
procedure which has occasioned a failure of justice.

45. In his statement to the Court, the respondent relies on paragraph 4
of the operative clause of the Tribunal’s Judgement (“the other requests
are rejected””) to support the conclusion that the Tribunal fully exercised
its jurisdiction in respect of the claims presented to it (para. 30).

In my opinion (see para. 27 above), the Tribunal did exercise its juris-
diction, but in doing so committed an error in procedure. It did not give
a decision on each of the heads of claim, and the very general form of
words which it used did not repair this defect.

46. To avoid any misunderstanding, I would add in passing that a
distinction must be made between defects or errors in a judgment which
render it void (absolutely void, or void ipso jure), and errors or mistakes
which render it voidable, so that it may be challenged before a higher
court or tribunal. Judgments of a court or tribunal of final resort, in
respect of which there is no higher tribunal, cannot be challenged on the
basis of mere mistakes or errors in procedure.

47. The decision of a tribunal is only justified if it is logically based
on the grounds and conclusions which are set out in it.

The respondent claims that non-motivation of a judgment is not a
procedural error which can give rise to revision, because Article 11
of the Statute of the Administrative Tribunal does not expressly mention
this ground, despite the fact that in the working paper submitted by the

130
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 293

Secretary-General “failure to state the reasons for the award” was
included among possible grounds for challenge (see para. 102 of the
written statement, referring to United Nations document A/2909, Annex
HA, para. 53). He also claims that in any event this would not be a
procedural fault of sufficient gravity to occasion a failure of justice (para.
104).

48. I do not find these arguments of the respondent convincing. The
fact that failure to state reasons is not mentioned in the list of grounds
for possible revision does not exclude the possibility of this failure being
an error in the procedure. Article 11 of the Statute of the United Nations
Administrative Tribunal, which uses the words ‘‘a fundamental error”
in the procedure, is directed to all fundamental errors in the procedure,
and it is obvious that failure to give reasons in the procedure of the
Administrative Tribunal is a fundamental error. Article 10, paragraph 3,
of the Statute, which provides that ‘‘judgements shall state the reasons
on which they are based’’, confirms this }.

49. The grounds, recitals and introductory clauses in judgments and
decisions are not there for ornament. The requirement, to be found as
well in legislation as in the Statute of the United Nations Administrative
Tribunal, to give reasons for judgments is a consequence of the very
nature of the judicial function. “It is of the very essence of judicial
decisions that they state their reasons 2.”

50. Article 52 of the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States provides that
either party may request annulment of the award on the ground ‘‘that the
award has failed to state the reasons on which it is based”. The written
statement filed on behalf of the Secretary-General relies on this Article
to buttress the argument that the fact that failure to state full reasons was
not mentioned in Article 11 of the Statute implies that such failure is not a
valid reason for challenging the Judgement (para. 40).

In my view, Article 52 is rather to be read as a manifestation of the
generality of the principle that it is of the very essence of judgments that
they state their reasons. The silence of Article 11 of the Statute on the
subject of reasons was to avoid repetition; any such mention was un-
necessary, since Article 10 of the Statute lays this down as a condition for
the judgements to be in proper form.

51. The importance of giving reasons for a judgment has been recog-
nized universally and at all times. Francis Bacon said that judices
sententiae suae ratione adducant (Aph. 38). The earliest codes of procedure

1 See also Art. 9, para. 1, in fine. The purpose of these Articles is “‘to prompt the
Tribunal to take care over the reasoning in its judgements and the wisdom of its
decisions”, Mrs. Bastid, /oc. cit., p. 20; this is all the more important because of the
members of the Administrative Tribunal ‘‘very few have any judicial experience”,
ibid., p. 25.

2 Submissions of M. Letourneur (Conseil d'Etat, 27 January 1950) quoted by Juret,
“Observations sur la motivation des décisions juridictionnelles internationales”,
R.G.D.T.P. 1960, p. 519.

131
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 294

also require reasons to be given for judgments !. The Court has held that
giving reasons is a condition appropriate to the judgments of a court
of justice and to awards of arbitrators 2; and the conclusion has rightly
been drawn that ‘‘it has become a truism to say that a statement of
reasons is nowadays obligatory because it is indispensable 3”.

52. A judge does not give his decisions by virtue of a discretionary
power (ex voluntate) but according to the law (ex ratione legis), and he
demonstrates this by giving reasons for his judgments. The reasons are
the logical premise of the judgment. A judgment without reasons or with
insufficient reasons has the appearance of an arbitrary decision and not
of a true judgment ¢.

Giving reasons for judgments has another purpose: the reasons also
permit the parties to know the grounds for judicial decisions, and thus
to know what possibilities are open to them of challenging the judgment
on appeal or by way of cassation, and, in appropriate cases, how to go
about it.

The Permanent Court stated that ‘all the parts of a judgment con-
cerning the points in dispute explain and complete each other and are
to be taken into account in order to determine the precise meaning and
scope of the operative portion” (P.C.I.J., Series B, No. 11, p. 30).

53. In the case before the Court, the dismissal of the applicant’s
claims—and claims of fundamental importance—en bloc and without
reasons by the Judgement of the Administrative Tribunal was itself an
error in the procedure; but it also brings out another error in the proce-
dure, inasmuch as the Judgement failed to give a decision on certain
heads of claim.

54. The respondent claims in his written statement (para. 105) that,
according to the Court, whatever procedural mistakes the Tribunal may
have committed, there is no need to examine them, particularly inasmuch
as the irregularities alleged did not “‘prejudice in any fundamental way
the requirements of a just procedure” (Appeal Relating to the Jurisdiction
of the ICAO Council, I.C.J. Reports 1972, p. 69).

It should be observed that Article 84 of the ICAO Convention, which
was applied by the Court in the case just mentioned, makes no mention of
procedural irregularities, and that on the other hand Article 11 of the
Statute of the Administrative Tribunal, which now falls to be applied,
expressly refers to error in the procedure. In the Judgment which the
respondent has cited, the Court said: “If there were in fact procedural

! For example Article 141 of the French Code of Civil Procedure of 1806 (re-enacting
on this point the law of 16-24 August 1790).

2 This statement of reasons, which is of “tan essentially judicial character” is required
by Art. 56, para. 1, of the Statute of the Court U.C./. Reports 1954, p. 2); an arbitrator’s
award should contain “‘ample reasoning and explanations in support” U.C.J. Reports
1960, p. 216).

3 Juret, loc. cit., p. 568 and passim.

4 This is not the case for other categories of decisions, judicial, administrative or
jury decisions.

132
APPLICATION FOR REVIEW (DISS. OP. DE CASTRO) 295

irregularities, the position would be that the Council would have reached
the right conclusion in the wrong way. Nevertheless it would have reached
the right conclusion” (ibid., p. 70). In my opinion, not only was the
Judgement of the Administrative Tribunal vitiated by a fundamental
error in the procedure, and did not produce the right conclusion, but in
addition that fundamental error occasioned a failure of justice.

(Signed) F. DE CASTRO.

133