                    51

                                        SEPARATE OPINION OF JUDGE
                                            CANÇADO TRINDADE

                                                 table of contents

                                                                                Paragraphs

                         I. Introduction                                                    1-3
                      II. The Factual Background of the Present Matter Lodged
                          with the Court                                                   4-12
                     III. The Determination of Compliance with Judgment No. 2867 of
                          2010 of the ILOAT in Favour of the Individual Complain-
                          ant                                                             13-16
                     IV. The Difficulties in the Compliance with Judgment No. 2867
                         of 2010 of the ILOAT in Favour of the Individual Complain-
                         ant                                                              17-19
                         V. The Individual Complainant’s Appeal for Equality of
                            Arms and Realization of Justice                               20-22
                     VI. The Contrasting Positions of the Individual Complainant
                         and the IFAD as to the Present Request for an Advisory
                         Opinion of the ICJ                                               23-27
                    VII. The Lack of Equality of Arms : A Recurring Problem in
                         Review Procedures of the Kind before the ICJ                     28-51

                            1. The dilemma before the Court                               28-31
                            2. The Advisory Opinion of 1954                                  32
                            3. The Advisory Opinion of 1956                               33-42
                            4. The Advisory Opinion of 1973                               43-44
                            5. The Advisory Opinion of 1982                                  45
                            6. The Advisory Opinion of 1987                                  46
                            7. General assessment                                         47-51
                    VIII. The Force of Inertia : The Regrettable Persistence of Pro-
                          cedural Inequality                                              52-56
                     IX. The Emergence of Individuals as Subjects of International
                         Law, Endowed with International Juridical Capacity               57-69
                      X. Subjects of Rights : The Outdated Dogmatism of the PCIJ
                         and ICJ Statutes                                                 70-75

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                     XI. The Erosion of the Inter-State Outlook of Adjudication
                         by the ICJ                                                          76-81
                    XII. The Early Acknowledgment of the Inequality of the
                         Parties in the Procedure of Review of Judgments of

                         Administrative Tribunals                                            82-90
                    XIII. The Imperative of Securing the Equality of the Parties in
                          the International Legal Process, as a Component of the
                          Right of Access to Justice Lato Sensu91-100
                    XIV. The Need to Secure the Locus Standi in Judicio and
                         the Jus Standi to Individuals before International Tribu-
                         nals, Including the ICJ                                           101-107
                    XV. Concluding Observations                                            108-118

                                                           *

                                                  I. Introduction

                       1. I have concurred with my vote to the adoption today, 1 February 2012,
                    by the International Court of Justice (ICJ), of the present Advisory Opinion
                    on Judgment No. 2867 of the Administrative Tribunal of the International
                    Labour Organization upon a Complaint Filed against the International Fund
                    for Agricultural Development. The course of the advisory proceedings has,
                    however, raised points to which I attach much importance, and in relation
                    to which I feel bound to leave on the records the foundations of my position
                    thereon. I propose thus to dwell upon such points in the present separate
                    opinion, in a logical sequence, and with a constructive spirit, so as to shed
                    some light on certain matters which lay at the foundations of contemporary
                    international law as well as the internal law of the United Nations, and
                    which seem to me to require the utmost attention.
                       2. In this understanding, I purport to examine, in the present separate
                    opinion, a series of interrelated points, having, as common denominator,
                    the fundamental question of procedural equality in the access of individu-
                    als to justice at international level. To start with, I shall address the points
                    which are predominantly factual in the context of the present Advisory
                    Opinion, namely : (a) the factual background of the present matter lodged
                    with the Court ; (b) the determination of compliance with Judgment
                    No. 2867 of 2010 of the ILOAT favourable to the individual Complain-
                    ant ; (c) the difficulties in the compliance with Judgment No. 2867 of 2010
                    of the ILOAT favourable to the individual Complainant ; (d) the individ-
                    ual Complainant’s appeal for equality of arms and realization of justice ;
                    and (e) the contrasting positions of the individual Complainant and the
                    IFAD as to the present request for an advisory opinion of the ICJ.
                       3. Next, I shall focus on the points of juridical epistemology, which in
                    my view are deserving of attention and care, and from which we can
                    extract lessons in the light of the present Advisory Opinion. Those points

                    46

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                    53 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                    are the following ones : (a) the lack of equality of arms : a recurring prob-
                    lem in review procedures of the kind before the ICJ ; (b) the force of
                    inertia: the regrettable persistence of procedural inequality ; (c) the emer-
                    gence of individuals as subjects of international law, endowed with inter-
                    national juridical capacity ; (d) subjects of rights: the outdated dogmatism
                    of the PCIJ and ICJ Statutes ; (e) the erosion of the inter-State outlook
                    of adjudication by the ICJ ; (f) the early acknowledgment of the inequal-
                    ity in the parties in the procedure of review of judgments of administra-
                    tive tribunals ; (g) the imperative of securing the equality of the parties in
                    the international legal process, as a component of the right of access to
                    justice lato sensu ; and (h) the need to secure the locus standi in judicio and
                    the jus standi to individuals before international tribunals, including the
                    ICJ. The way will then be paved for the presentation of my concluding
                    observations.

                         II. The Factual Background of the Present Matter Lodged
                                              with the Court

                      4. May I at first recall, as to the factual background of the present
                    matter lodged with this Court, that, on 26 April 2010, the International
                    Court of Justice (ICJ) received a request for an advisory opinion from the
                    International Fund for Agricultural Development (the IFAD) 1, concern-
                    ing the validity of a Judgment rendered by the Administrative Tribunal of
                    the International Labour Organization (the ILOAT). Ms Ana Teresa
                    Saez García, a national of Venezuela, had a contract of employment with
                    the IFAD, whereby she worked for the Global Mechanism of the United
                    Nations Convention to Combat Desertification in Those Countries
                    Exp
                       eriencing Serious Drought and/or Desertification, Particularly in
                    Africa (Global Mechanism).

                      5. The Global Mechanism was established by Article 21 of this UN Con-
                    vention, and began its operations in October 1998. Before that, the IFAD
                    had been selected to house the Global Mechanism in 1997, and to provide
                    the needed administrative services to it. The Global Mechanism was — and
                    remains — housed in the IFAD’s premises in Rome, by virtue of a housing
                    agreement (Memorandum of Understanding), entered into by the IFAD
                    and the Conference of the Parties to the Desertification Convention in 1999.
                      6. Ms Saez García held a fixed-term contract of employment (with the
                    IFAD, to render services to the Global Mechanism) 2, which was due to
                       1 The IFAD is one of the specialized agencies of the United Nations, which have been

                    authorized by the General Assembly, on the basis of Article 96 (2) of the UN Charter, to
                    request advisory opinions of the ICJ on legal questions arising within the scope of their
                    activities.
                       2 Her appointment was made in accordance with the general provisions of the IFAD

                    Personnel Policies Manual ; it was signed by the Director of the Personnel Division of the
                    IFAD.

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                    54 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                    expire on 15 March 2006, and was not renewed subsequently 3; she then
                    filed an appeal with the Joint Appeals Board, which recommended in
                    December 2007 that she be reinstated within the Global Mechanism for a
                    period of two years, and that she be paid an amount equivalent to all the
                    salaries, allowances and entitlements she had lost since March 2006. The
                    President of the IFAD rejected this decision in April 2008.
                       7. The next step taken by her was to file a complaint against the IFAD
                    with the ILOAT, on 8 July 2008, asking that Tribunal to order the IFAD to
                    reinstate her, for a minimum of two years, in her previous post, or an equiv-
                    alent post with retroactive effect from 15 March 2006, and to grant her
                    monetary compensation for the damages suffered. The two parties in the
                    case before the ILOAT were, thus, an individual (Ms Saez García, the Com-
                    plainant) and an international organization (the IFAD, the Respondent).
                       8. The ILOAT, in its Judgment No. 2867, of 3 February 2010, on the
                    complaint filed by Ms Saez García against the decision of the President of
                    the IFAD to dismiss her internal appeal against the decision not to renew
                    her contract because her post was being abolished, found in favour of the
                    Complainant. The ILOAT decided, in the aforementioned Judgment
                    No. 2867 of 2010, inter alia, to set aside the decision of the President of
                    the IFAD, because the abolition of the Complainant’s post was tainted
                    with illegality ; it then ordered the IFAD to pay material and moral dam-
                    ages and costs to Ms Saez García.
                       9. The Executive Board of the IFAD decided to challenge the validity
                    of Judgment No. 2867 of the ILOAT, by way of application to the Inter-
                    national Court of Justice (ICJ) for an advisory opinion, pursuant to Arti-
                    cle XII of the Annex to the ILOAT Statute, which reads as follows :
                             “1. In any case in which the Executive Board of an international organ-
                                 ization which has made the declaration specified in Article II, par-
                                 agraph 5, of the Statute of the Tribunal 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 question of the validity of the decision given by the
                                 Tribunal shall be submitted by the Executive Board concerned, for
                                 an advisory opinion, to the International Court of Justice.
                              2. The opinion given by the Court shall be binding.”
                       10. Upon the filing of its request for an advisory opinion to the ICJ,
                    the IFAD thereafter requested the ILOAT the stay of execution of its
                    Judgment No. 2867, pending the delivery of the ICJ’s Advisory Opinion
                    in the cas d’espèce. For its part, the ILOAT, in its subsequent Judgment
                    No. 3003, of 6 July 2011, dismissed the IFAD’s application for stay of
                    execution of prior Judgment No. 2867, pending the delivery of the present
                    Advisory Opinion of the ICJ. In the course of the somewhat troublesome
                    advisory proceedings before this Court, both the IFAD and Ms Saez Gar-
                    cía referred to the issue of the equality of parties before (international)
                         3   The decision not to renew her contract was sealed by the President of the IFAD.

                    48

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                    55 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                    courts and tribunals since 1946, when the provision was made, in Arti-
                    cle XII of the Annex to the Statute of the ILOAT, for the ICJ to review,
                    on specified grounds, judgments of the Tribunal (cf. supra).
                       11. In the course of the present advisory proceedings, the only State
                    which forwarded its views to the ICJ was the Plurinational State of
                    Bolivia. In its written statement of 26 October 2010, it expressed its con-
                    cern, in particular, with the relationship between the Global Mechanism
                    (under the UN Convention to Combat Desertification) and the IFAD,
                    and the need to clarify their respective competences, bearing in mind the
                    right of individuals to identify with legal certainty “the international
                    organization that hires them” (p. 6). Bolivia added that “labour and
                    social rights of individuals should clearly be protected, providing them
                    assurances and proper legal security (. . .), having identified clearly the
                    employer” (p. 5).

                       12. It ensues, from the aforesaid, that the subject-matter of the present
                    Advisory Opinion of the Court contains elements which are proper to the
                    law of the international organizations, one of them being the relationship
                    between the IFAD and the Global Mechanism. Yet, the core of the mat-
                    ter is a distinct one : it concerns the position of the individual as subject
                    of rights in international law, in its various interrelated aspects, which
                    form altogether the object of attention of the present separate opinion. As
                    I attach the utmost importance to the condition of the individual as sub-
                    ject of contemporary international law (the droit des gens), I feel bound to
                    examine those aspects, one by one, in the sections that follow.

                      III. The Determination of Compliance with Judgment No. 2867
                      of 2010 of the ILOAT in Favour of the Individual Complainant

                      13. Before I embark on an examination of the various aspects of the
                    procedural equality of parties before international courts and tribunals,
                    with a bearing on the cas d’espèce, may I summarize the Judgment
                    No. 3003 of 2011, whereby the ILOAT dismisses the IFAD’s application
                    for stay of execution of its previous Judgment No. 2867 of 2010. The
                    ILOAT determined, inter alia, that Judgment No. 2867 was “immediately
                    operative”, there being no need for Ms Saez García to have further
                    recourse to the ILOAT to ensure its execution (para. 16). The ILOAT fur-
                    ther clarified that there was no provision in the Statute or the Rules of the
                    ILOAT which stipulated that a request to the ICJ for an advisory opinion
                    would automatically have suspensive effect on the contested judgment,
                    even though this fact would not in itself preclude the possibility of request-
                    ing the ILOAT for the suspensive effect of the judgment (para. 25).
                      14. As to the central question of the equality of arms (égalité des armes)
                    between the parties, the ILOAT next considered whether international
                    organizations — such as the IFAD, in the cas d’espèce — should be per-
                    mitted to request suspension of a judgment of the ILOAT which they

                    49

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                    56 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                    intend to challenge before the ICJ pursuant to Article XII of the Annex to
                    the ILOAT Statute. In this regard, the ILOAT was of the opinion that the
                    procedure set forth in Article XII of the Annex of its Statute is “funda-
                    mentally imbalanced to the detriment of staff members”, because the
                    option of submitting a request for an advisory opinion of the ICJ is lim-
                    ited only to the organization concerned, and cannot be pursued by staff
                    members (para. 40). The ILOAT added that, as only the organization can
                    request the ICJ for an advisory opinion, this means that
                         “the possibility of obtaining a stay of execution would, by definition,
                         only benefit the organizations themselves (. . .), doubly worsen[ing]
                         the imbalance between the parties created by the Article XII proce-
                         dure, to the detriment of staff members” (para. 43).

                    The ILOAT then insisted on its view that it is “difficult to justify that
                    organizations should be able to seek a stay of execution where the staff
                    members concerned are without any parallel recourse in law” (para. 44).

                      15. The ILOAT next stated that granting a stay of a judgment which
                    was rendered in favour of a staff member would further aggravate the
                    imbalance between the parties, since it would deprive the staff member of
                    the benefit of the judgment in her favour (such as its Judgment No. 2867
                    of 2010, in the present case), for the duration of the advisory proceedings
                    before this Court. The ILOAT added that
                         “[t]he difference in treatment between organizations and their staff
                         which derives from the actual provisions of Article XII (. . .) would thus
                         be compounded by a further inequality, and one which would doubt-
                         less be even more keenly felt in practice, stemming from the fact that an
                         application to the Court [for an advisory opinion] in this context could
                         result in a stay of execution of the contested judgment” (para. 45).
                       16. The ILOAT then went on to state that, as Article XII of the Annex of
                    the ILOAT Statute creates “an objective inequality between the parties”, it has
                    the duty to take care that it does not amplify the consequences of this inequal-
                    ity by considering admissible organizations’ requests for a stay of execution of
                    a judgment, to the detriment of a staff member (para. 46). The ILOAT then
                    concluded that it is not possible to recognize the admissibility of an organiza-
                    tion’s request to stay the execution of a judgment in respect of which the pro-
                    cedure set forth in Article XII has been initiated before the ICJ (para. 47).

                      IV. The Difficulties in the Compliance with Judgment No. 2867
                      of 2010 of the ILOAT in Favour of the Individual Complainant

                      17. The concern rightly expressed by the ILOAT has, in my view, its
                    raison d’être. It is well-founded. Yet, despite its new Judgment No. 3003
                    of 2011, whereby the ILOAT dismissed the IFAD’s request for a stay of
                    execution of Judgment No. 2867 of 2010 (which ordered the IFAD to pay

                    50

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                    moral and material damages, and costs, to the Complainant, Ms Saez Gar-
                    cía), it appears from the records of the case that Ms Saez García has not
                    yet received any payment from the IFAD. Ms Saez García contended, in
                    a written statement submitted to the Court on 30 August 2011, that
                          “[t]he mere request for an advisory opinion has provided an excuse
                          for [the IFAD] not to execute Judgment [No.] 2867. Even though [the
                          IFAD]’s application for suspension of execution was denied, [it] has
                          still avoided execution on the grounds that it might become entitled
                          to repayment of the amounts due if the Court declares Judgment
                          [No.] 2867 invalid.” (Para. 14.)
                       18. Thus, to sum up, Ms Saez García obtained a judgment in her
                    favour, ordering the IFAD to pay to her moral and material damages, and
                    costs (the ILOAT’s Judgment No. 2867 of 2010). The Executive Board of
                    the IFAD, pursuant to Article XII of the Annex to the ILOAT Statute,
                    decided to challenge the validity of Judgment No. 2867 of 2010, by way of
                    a request to the ICJ for an advisory opinion. The IFAD then requested the
                    ILOAT for a stay of execution of Judgment No. 2867 of 2010, pending the
                    delivery of the Advisory Opinion by the ICJ. In its subsequent Judgment
                    No. 3003 of 2011, the ILOAT dismissed the IFAD’s application for stay
                    of execution of Judgment No. 2867 of 2010, reaffirming that this judgment
                    is operative. In considering the IFAD’s request for suspensive effect of
                    Judgment No. 2867 of 2010, the ILOAT examined the question of the
                    inequality of parties that stems from the procedure set forth under Arti-
                    cle XII of the Annex to the ILOAT Statute and decided that ordering a
                    stay of the contested judgment would only amplify this inequality.
                       19. In its Judgment No. 3003 of 2011, the ILOAT limited its examina-
                    tion of the matter to the inequality of parties ensuing from Article XII of
                    the Annex to the ILOAT Statute, given that only the international orga-
                    nization concerned may challenge a decision of the ILOAT unfavourable
                    to itself. Understandably, the ILOAT did not dwell upon the question of
                    the locus standi in judicio of individuals in advisory proceedings before
                    this Court. Yet, the position of the individuals before this Court (whether
                    they can appear before it) and the persisting restriction that all communi-
                    cations coming from the Complainant have to be transmitted to the
                    Court through the IFAD (the fact that all) are, in my understanding, of
                    the utmost importance, for the good administration of justice (la bonne
                    administration de la justice). Accordingly, I deem it fit to examine the
                    question of the locus standi in judicio, as well as of jus standi, of individu-
                    als before this Court, in the present separate opinion (Section XIV, infra).

                         V. The Individual Complainant’s Appeal for Equality of Arms
                                          and Realization of Justice

                      20. It is indeed worrisome to see that, despite the two judgments of the
                    ILOAT in her favour (No. 2867 of 2010, and No. 3003 of 2011), the

                    51

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                     Complainant, Ms Ana Teresa Saez García, has not yet seen justice done,
                     and the two judgments of the ILOAT have not been complied with yet,
                     pending the advisory proceedings before this Court. It is worth referring
                     here to a passage of her statement submitted to this Court on
                     30 August 2011, wherein she contends that “[t]he imbalance in the present
                     proceedings began with the fact that only the defendant was able to
                     request review” (para. 14). As regards, more specifically, her position
                     before the Court in the present proceedings, she stated that :
                             “Only [the IFAD] is able to communicate directly with the Court.
                          The Court has attempted to equalize the position of the Complainant
                          by requiring [the IFAD] to transmit the pleadings of the Complain-
                          ant. But the positions have not been equalized. Before the first plead-
                          ings were due, the Complainant’s counsel requested a document to
                          attach to the Complainant’s statement. The [IFAD] replied that, ‘in
                          conformity with the rules governing advisory proceedings before the
                          International Court of Justice, you do not have the prerogative to
                          introduce such an item in the proceedings’ (. . .). Since the Complain-
                          ant depended upon [the IFAD] to transmit her statement and docu-
                          ments, this created a significant obstacle to pleading her case. It
                          required the intervention of the Registry to overcome.

                             In transmitting the comments of [the] IFAD on 9 March 2011, [the
                          IFAD] requested that the Court seek the views of the Conference of
                          Parties of the United Nations Convention to Combat Desertification.
                          [The IFAD] also requested oral hearings. The Complainant’s counsel
                          received this letter on 17 March. When he attempted to respond to
                          these new requests, the [IFAD] refused to transmit the communica-
                          tion to the Court on the grounds that it was after the deadline of
                          11 March for filing comments. Again the intervention of the Registry
                          was required to compel the [IFAD] to transmit the letter from the
                          Complainant’s counsel.
                             Even at the present time, the Complainant is under the disadvan-
                          tage of having to submit this statement through [the] IFAD, which
                          requires submitting it well before the deadline specified in the Regis-
                          trar’s letter of 21 July 2011. [The] IFAD will be able to work on its
                          Reply until the morning of 29 August 2011; the Complainant will
                          have to submit hers the morning of 26 August” (paras. 15‑17).
                        21. At this stage of the present separate opinion, I shall limit myself to
                     pointing out that there clearly appears to exist two distinct inequality
                     claims in the present advisory proceedings. The first claim concerns the
                     fact that, pursuant to Article XII of the Annex to the ILOAT Statute,
                     only the international organization at issue, the IFAD, can challenge an
                     unfavourable decision of the ILOAT before the ICJ. This question was
                     examined by the ILOAT in its Judgment No. 3003 of 2011 concerning the
                     IFAD’s request for stay of execution of Judgment No. 2867 of the
                     ILOAT, which found in favour of the Complainant, Ms Saez García.

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                       22. The second claim of procedural inequality pertains to the position
                     of the individual Complainant in the present proceedings before this
                     Court, and more particularly to an aspect not addressed in the ILOAT’s
                     Judgment No. 3003 of 2011. Yet, Ms Saez García touched upon it, in
                     complaining of the inequality of the parties reflected in the fact that only
                     the IFAD — her opposing party in the present case — can address the
                     Court directly, and that all her communications and submissions to the
                     ICJ ought to be done through the IFAD ; such inequality — she added —
                     has, not surprisingly, caused her some constraints.

                       VI. The Contrasting Positions of the Individual Complainant
                      and the IFAD as to the Present Request for an Advisory Opinion
                                                of the ICJ

                        23. In the present advisory proceedings, the IFAD and Ms Saez Gar-
                     cía have made clear their contrasting positions as to the present request
                     for an advisory opinion of this Court. Thus, in its written statement of
                     29 October 2010, submitted to this Court, the IFAD argued that the issu-
                     ing of an advisory opinion by the ICJ would not violate the rights of
                     equality of parties, since the subject matter of the requested advisory
                     opinion is not the rights of the individual, but the jurisdiction of the
                     ILOAT, based on the agreement between the IFAD and the ILO that
                     recognized the jurisdiction of the ILOAT (paras. 78‑83). Thus the IFAD
                     attempted to characterize its difference with an individual staff member,
                     as — in its argument — a “matter pertaining to the external relations of
                     the organization concerned” (para. 79), here concerning the IFAD and
                     the ILO (as to the jurisdiction of the ILOAT).
                        24. The IFAD insisted on its own description of the case : in a subse-
                     quent statement, its Reply of 26 August 2011, it argued that the operation
                     of Article XII of the Annex to the ILOAT Statute is to resolve disputes
                     within the ILO regarding the competences of each of its bodies
                     (paras. 39‑44) or to resolve “disputes” between the ILO and UN special-
                     ized agencies pertaining to the jurisdiction of the ILOAT, which is based
                     on an agreement between such specialized agencies and the ILO
                     (paras. 45‑68). The IFAD went further : it made a parallel with investor-
                     State arbitration, where only the investor has the right to initiate proceed-
                     ings and the State has exclusively the right to seek authoritative
                     interpretation of a treaty, without — in its view — violating the right of
                     the equality of parties (paras. 69‑76). The IFAD made even a parallel
                     with the pending contentious case before the ICJ concerning the Jurisdic‑
                     tional Immunities of the State (Germany v. Italy: Greece intervening),
                     arguing that “interested individuals” do not have access to the ICJ, but
                     issues that are clearly of their interest are going to be adjudicated by the
                     ICJ (para. 77).
                        25. Contrariwise, in her written statement of 26 August 2011, the orig-
                     inal Complainant, Ms Saez García, stated that the right of equality of

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                     parties before courts and tribunals is enshrined in all major human rights
                     instruments, at global and regional levels, namely : the Universal Declara-
                     tion of Human Rights (Art. 10), the UN Covenant on Civil and Political
                     Rights (Art. 14 (1)), the European Convention on Human Rights
                     (Art. 6 (1)), and the American Convention on Human Rights (Art. 8 (1))
                     (paras. 5‑9). She also referred to some of the jurisprudence of the super-
                     visory organs or Courts operating thereunder (paras. 5 and 9‑11) ; she
                     quoted, inter alia, the Andrejeva v. Latvia case (2009), before the Euro-
                     pean Court of Human Rights, as illustration of the view that, when
                     appeal procedures exist, they ought to abide by the provisions of Article 6
                     (right to a fair trial) of the European Convention on Human Rights
                     (para. 11).
                        26. She then recalled the rationale of the abolition, by the UN General
                     Assembly in 1995, of the review procedure of the United Nations Admin-
                     istrative Tribunal (UNAT) rulings by the ICJ, which also had in mind the
                     issue of the equality of parties (para. 12). Next, Ms Saez García turned to
                     the recognition, by the ILOAT itself, that its review procedure was not in
                     accordance with the principle of the equality of the parties, and was “fun-
                     damentally imbalanced to the detriment of staff members” (para. 13). She
                     also claimed that the IFAD, despite not winning a suspension of execu-
                     tion of the 2010 Judgment of the ILOAT, unilaterally denied execution of
                     the ILOAT ruling while the advisory proceedings before the ICJ were
                     pending, whereas in a situation of real equality it is up to the courts to
                     decide “whether and upon what conditions judgments are executed dur-
                     ing the appellate phases” (para. 14).

                        27. She further also argued that, despite the practical measures taken
                     by the ICJ to secure equality to the position of the parties, their positions
                     have not been equal, since “[o]nly the defendant is able to communicate
                     directly with the Court” (para. 15), and she — the Complainant —
                     remains dependent upon the IFAD for the simple transmission of docu-
                     ments to the Court, and the IFAD has in fact been posing obstacles
                     (paras. 15‑17) ; twice, in the course of the proceedings, the intervention of
                     the Court’s Registry was thereby required (paras. 15‑16). The difficulties
                     she encountered affected even the deadlines for the submission of written
                     statements (para. 17). Ms Saez García then concluded that :
                             “The substantial inequality of arms between the Complainant and
                          the [IFAD] is one factor that the Court may wish to take into account
                          in exercising its discretion under Article 65 of its Statute. (. . .)

                             In [the Advisory Opinion of 1956 on Judgments of the Administra‑
                          tive Tribunal of the ILO upon Complaints Made against Unesco] the
                          Court achieved a balance between equality and usefulness. Since [the
                          above-mentioned Advisory Opinion] the doctrine of equality of arms
                          has increased the requirement for equality in the administration of
                          justice. (. . .)” (Paras. 18-19.)

                     54

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                     61 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                                        VII. The Lack of Equality of Arms :
                                          A Recurring Problem in Review
                                       Procedures of the Kind before the ICJ

                                            1. The Dilemma before the Court
                        28. Despite the fact that we are here before general principles of law
                     such as the equality of arms (égalité des armes) before courts and tribu-
                     nals, and the principle of la bonne administration de la justice, the fact
                     remains that a problem such as the one raised before the ICJ, by the
                     original Complainant before the ILOAT, has been recurrent in this Court,
                     in procedures of the kind. As already indicated, the review procedure of
                     the UNAT decisions by the ICJ was abolished in 1995 (supra), but the
                     review procedure of the cas d’espèce, of the ILOAT decisions by the ICJ,
                     subsists, with the same problem identified in 1956 by this Court in its
                     Advisory Opinion on Judgments of the Administrative Tribunal of the ILO
                     upon Complaints Made against Unesco. Despite that identification of the
                     problem, it persists to date : for more than half a century (56 years) the
                     force of inertia and mental lethargy seem to have prevailed, much to the
                     detriment of individuals, subjects of rights under international adminis-
                     trative law, or the law of the United Nations.
                        29. In the proceedings which led to the Court’s Advisory Opinion of
                     1973 on the Application for Review of Judgment No. 158 of the United
                     Nations Administrative Tribunal, the question came to the fore of the
                     nature of the procedure, prompted by the fact that it was not the rights of
                     States which were at issue herein : it was the rights of individuals. Doubts
                     were voiced as to “the legality of the use of the advisory jurisdiction for
                     the review of judgments of the [UN] Administrative Tribunal”, i.e., for
                     dealing with what originally appeared as a contentious case within the
                     internal law of the United Nations. The use of the Court’s advisory juris-
                     diction was questioned for “the judicial review of contentious proceedings
                     which have taken place before other tribunals and to which individuals
                     were parties” 4.

                        30. Dogmas of the past began, not surprisingly, to weigh heavily in the
                     minds of the judges of this Court, in particular the outdated dogma that
                     individuals were not subjects of international law (the droit des gens). In
                     any case, the ICJ, in its aforementioned Advisory Opinion of 1973, with-
                     out ridding itself of the consequences of this dogma, at least asserted that
                     “[t]he 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” (para. 14) 5.

                        4 Application for Review of Judgement No. 158 of the United Nations Administrative

                     Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 171, para. 14.
                        5 Ibid., p. 172.

                     55

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                        31. Before I proceed to a consideration of this matter, to which I attri-
                     bute much importance, I find it appropriate to proceed, first, to an over-
                     view of the five Advisory Opinions of the kind (issued in 1954, 1956, 1973,
                     1982 and 1987), which preceded the present Advisory Opinion on Judgment
                     No. 2867 of the Administrative Tribunal of the International Labour Organi‑
                     zation upon a Complaint Filed against the International Fund for Agricultural
                     Development (IFAD), which the Court is delivering today, 1 February
                     2012. This will enable us to appreciate the difficulties experienced by the
                     Court when faced with a conception of international law which had the
                     vain pretension to defy the passing of time (as legal positivists do).

                                             2. The Advisory Opinion of 1954
                        32. In its Advisory Opinion of 1954 on the Effect of Awards of Com‑
                     pensation Made by the UN Administrative Tribunal, the main focus of
                     attention of the ICJ was on the relations between the General Assembly
                     and the UN Administrative Tribunal, in the newly-emerging internal law
                     of the United Nations. Yet, despite this focus of attention on the relations
                     between UN organs, the ICJ kept in mind that what was ultimately at
                     stake were the rights of individuals, of UN staff members. The Court then
                     concluded that the General Assembly cannot “on any grounds” refuse to
                     give effect to an award of compensation made by the UN Administrative
                     Tribunal in favour of a UN staff member, “whose contract of service has
                     been terminated without his assent” 6.

                                             3. The Advisory Opinion of 1956
                        33. Two years later, in its Advisory Opinion on Judgments of the
                     Administrative Tribunal of the ILO upon Complaints Made against
                     Unesco (1956), the ICJ observed that the “absence of equality” in the
                     review procedure before it flew from the relevant provisions of its own
                     Statute, affecting rights of UN officials. It added that the Court was
                     required, by its own judicial character, to ensure that “both sides directly
                     affected by these proceedings” be in “a position to submit their views and
                     their arguments to the Court”. In its view, the difficulty confronting it

                          “was met, on the one hand, by the procedure under which the obser-
                          vations of the [UN] officials were made available to the Court through
                          the intermediary of Unesco and, on the other hand, by dispensing
                          with oral proceedings. [. . .] 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 [UN] officials
                       6 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal,

                     Advisory Opinion, I.C.J. Reports 1954, p. 62.

                     56

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                     63 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                          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 to ask for an Advisory Opinion of the Court.” 7
                       34. This time the Court focused its attention on the controversy oppos-
                     ing individuals (staff members) to an international organization (Unesco).
                     After expressly saying so, the Court deemed it fit to warn :

                             “The arguments, deduced from the sovereignty of States, which
                          might have been invoked in favour of a restrictive interpretation of
                          provisions governing the jurisdiction of a tribunal adjudicating
                          between States are not relevant to a situation in which a tribunal is
                          called upon to adjudicate upon a complaint of an official against an
                          international organization.
                             The Court recognizes that the Administrative Tribunal is a Tribu-
                          nal of limited jurisdiction.” 8
                       35. The developments of international law had already overcome the
                     mens legis of pertinent provisions of the Statute of the Court, concerning
                     review procedures, opposing individuals to international organizations.
                     In its 1956 Advisory Opinion, the Court, referring to the applicable Staff
                     Regulations, stated that it had kept in mind their texts as well as “their
                     spirit, namely, the purpose for which they were adopted”. The Court
                     reminded that :
                          “[t]hat purpose was to ensure to the Organization the services of a
                          personnel possessing the necessary qualifications of competence and
                          integrity and effectively protected by appropriate guarantees in the
                          matter of observance of the terms of employment and of the provi-
                          sions of the Staff Regulations” 9.
                        36. By then, the Court — created to solve disputes only between
                     States — was already attentive, in the review proceedings of the kind, to
                     the individuals employed by international organizations and working for
                     them. Already in 1956 the Court pondered that a request for an advisory
                     opinion under Article XII of the Annex to the Statute of the ILOAT was
                     limited to challenges of decisions of this latter confirming its jurisdiction,
                     or else to cases of “fundamental fault of procedure” ; apart from that,
                     there was no remedy against decisions of the ILOAT 10. In other words,
                     the rule of law applied not only in inter-State disputes, but also in contro-

                       7 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the

                     Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 86.
                       8 Ibid., p. 97.
                       9 Ibid., p. 98.
                       10 Ibid.

                     57

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                     versies between international organizations and their staff members. In its
                     Advisory Opinion of 1956, the Court confirmed the validity of the judg-
                     ments of the ILOAT 11.

                        37. The procedure followed by the Court, however, did not escape
                     criticisms. In his separate opinion, Judge M. Zafrulla Khan observed that

                          “[b]y dispensing with oral proceedings the Court deprived itself of a
                          means of obtaining valuable assistance in the discharge of one of its
                          judicial functions. Oral proceedings were dispensed with not because
                          the Court considered that it could not receive any assistance through
                          that means, but because the inequality of the parties in respect of oral
                          hearings could not be remedied in any manner.” 12
                        38. Judge R. Córdova went even further : in a thoughtful dissenting
                     opinion, he began by pondering that review procedures of the kind envis-
                     aged herein attributed new functions to the ICJ, well beyond the provi-
                     sion of Article 34 (1) of its Statute, whereby only States may be parties in
                     cases before it 13. Article XII of the Annex to the Statute of the ILOAT
                     and Article 11 of the Statute of the UNAT introduced “a confusion” into
                     the two main functions (contentious and advisory) of the ICJ. Arti-
                     cles 34‑37 of the Court’s Statute exclude the possibility of individuals
                     “becoming parties in contentious cases before the Court” 14. The conten-
                     tious function of the Court — Judge Córdova recalled — was limited to
                     cover

                          “disputes between States, only and exclusively.
                            In debarring individuals from coming before the Court as parties
                          to ‘a case’, that is, to a contentious litigation, the Statute adopted the
                          theory that individuals are not subjects of international law.” 15

                         39. At the 1945 San Francisco Conference — he went on — this matter
                     was the object of attention (and even a Venezuelan amendment did not
                     succeed), but at the end of the debates the Chairman of the Committee IV
                     of the Conference (the delegate of Peru) summed up the discussions,
                     stating that Article 34 of the Court’s Statute was indeed intended to lay
                      down that only States, and not individuals and international organiza-
                      tions, might be parties to contentious cases before the Court 16. Yet, the
                      case brought before the Court in the present review procedure was of a
                       11 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the

                     Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 101.
                       12 Ibid., p. 114.
                       13 Ibid., p. 157.
                       14 Ibid., p. 159.
                       15 Ibid., p. 160.
                       16 Ibid., p. 161.

                     58

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                     65 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     “contentious” nature, seeking, “in the guise of an advisory opinion”, a
                     “true judgment”, a “real decision binding those parties” 17.

                        40. There was, Judge Córdova insisted, a “confusion”, in Article XII
                     of the Annex to the Statute of the ILOAT and in Article 11 of the UNAT,
                     between advisory and contentious proceedings ; but what Unesco
                     wanted (in that case of 1956) from the ICJ was, in his view, “a binding
                     decision, a judgment” 18, — binding on “both the Organization and the
                     private individuals, its officials” 19. To him, that was indeed “a conten-
                     tious case” ; and he lucidly added :

                            “It is impossible to get away from the fact that the [UN] officials
                          were necessarily parties in the first instance and they should be so
                          considered in the second instance as well. One cannot think of this
                          case as being of two different natures, a contentious case before the
                          Administrative Tribunal and not a contentious one when it comes
                          before the Court. When and why should it lose its initial nature ?
                          When it comes to the second instance before the Court and just
                          because it is improperly introduced as an Advisory Opinion ? The
                          decision of this Court is not only connected with, but absolutely
                          restricted to, the contentious dispute decided by the Administrative
                          Tribunal between the two parties, the Organization and the individ-
                          uals.” 20
                        41. Equality of the parties existed in the procedure before the ILOAT,
                     but not subsequently, in the review procedure before the ICJ. As to this
                     latter, Judge Córdova warned,
                          “[t]he inequality of the parties in the present case is evident, owing to
                          the impossibility under the Statute for individuals to come before the
                          Court and therefore the impossibility for the Court to respect one of
                          the most fundamental and time-honoured principles which requires
                          equality of the parties before the law and in the exercise of their rights
                          before tribunals” 21.
                       42. The decision to dispense with oral hearings, thus departing from
                     “the normal procedure”, he added, led to an “unusual” and “abnormal”
                     procedure, making “more flagrant the existence of such inequality
                     between the parties”, making the original complainants “depend upon the
                     goodwill of their opponents”, rendering it, in his view, “impossible for the

                       17 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the

                     Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 161.
                       18 Ibid., p. 161.
                       19 Ibid., p. 163.
                       20 Ibid., p. 163.
                       21 Ibid., p. 166.

                     59

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                     66 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     Court to administer justice in strict compliance with the basic principles
                     of justice” 22. He then concluded that

                          “[f]or individuals and international organizations to be parties in a
                          contentious procedure it would be absolutely necessary to change the
                          Statute, the only means of securing equality for them before the
                          Court. This fact necessarily means that the Court, according to the
                          present terms of the Statute, cannot legally act in compliance with the
                          equality principle (. . .).” 23

                                              4. The Advisory Opinion of 1973
                        43. Almost two decades later, in its Advisory Opinion of 1973 on the
                     Application for Review of Judgment No. 158 of the United Nations Admin‑
                     istrative Tribunal, the ICJ admitted that the difficulty it faced in such
                     review proceedings ensued from Article 66 of its Statute, which made pro-
                     vision for “the submission of written or oral statements only by States
                     and international organizations” (para. 34). The Court then bypassed
                     that difficulty by deciding not to hold public hearings ; in this way, it
                     added, “the requirements of equality had been sufficiently met to enable
                     it to comply with the request for an Opinion” (ibid.) 24. The Court
                     referred to General Assembly resolution 957 (X), which recommended in
                     1955 to avoid oral statements in such review proceedings, so as to avoid
                     inequality of arms ; the Court itself found that it could prescind from oral
                     statements, as it did in its advisory proceedings which led to the Advisory
                     Opinion of 1956 (supra). In its view, written statements were sufficient in
                     review proceedings (para. 36) 25.
                        44. The Court upheld its jurisprudence constante to the effect that “a
                     reply to a request for an advisory opinion should not, in principle, be
                     refused”, and “only compelling reasons would justify such a refusal”
                     (para. 40) 26. In his dissenting opinion, Judge F. de Castro referred to a
                     “hybrid procedure”, or a “pseudo-advisory opinion”, which Judge P. Moro-
                     zov commented in his dissenting opinion that “the right to initiate the
                     procedure for review of the judgments of the ILO Tribunal does not
                     belong to private persons or to any State, but to the Governing Body itself
                     alone” 27. And in his insightful dissenting opinion, Judge André Gros
                     warned that “[l]egality and expediency must be clearly separated”, and
                     added that

                        22 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against the

                     Unesco, Advisory Opinion, I.C.J. Reports 1956, pp. 166‑167.
                        23 Ibid., p. 168.
                        24 Application for Review of Judgement No. 158 of the United Nations Administrative

                     Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 179.
                        25 Ibid., pp. 180‑181.
                        26 Ibid., p. 183.
                        27 Ibid., pp. 275 and 300, respectively.

                     60

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                          “the elimination of the oral proceedings in this case prejudiced the
                          right of Members of the Court to obtain information. Unwillingness
                          to open the door of oral argument for the staff member concerned
                          has led to its being closed not only to the administration — which
                          obviously did not mind — but also to the judge.” 28

                                            5. The Advisory Opinion of 1982
                        45. One decade later, in its Advisory Opinion of 1982 on the Applica‑
                     tion for Review of Judgement No. 273 of the UN Administrative Tribunal,
                     the ICJ expressly acknowledged that the questions lodged with it, in the
                     cas d’espèce and in previous cases of the kind, concerned the rights of
                     individuals (para. 20). The Court also warned that the fact that it decided
                     to comply with the request for an advisory opinion did not in any way
                     imply “condonation” of irregularities, and stressed the need “to secure
                     equality between the applicant State and the staff member” and to assist
                     the General Assembly in this connection 29. In his separate opinion,
                     Judge H. Mosler referred to the bypassing of “the question of inequality
                     between the parties”, by not holding hearings (as the Court had done in
                     1973) ; and he judiciously added that

                          “[t]he main preoccupation of the Court related to the inequality
                          between the parties to the original dispute, the Secretary-General and
                          the staff member, because individual persons have, according to the
                          Statute, no jus standi in judicio before the Court. (. . .) I cannot but
                          regret that there should exist a particular type of case coming under
                          the competence of the Court in which oral statements before the
                          Court are practically excluded once and for all.” 30

                                            6. The Advisory Opinion of 1987
                       46. Half a decade later, the Advisory Opinion of the ICJ of 1987, on
                     the Application for Review of Judgement No. 333 of the United
                     Nations Administrative Tribunal, was unfavourable to the original com-
                     plainant, not having accepted his pleas. The ICJ found therein that the
                     UNAT did not fail to exercise jurisdiction vested in it, and did not err on
                     any question of law relating to the provisions of the UN Charter 31. In
                     his separate opinion, Judge Roberto Ago was critical of the review pro
                     cedure, for not fully meeting the need for a satisfactory “system of

                        28 Application for Review of Judgement No. 158 of the United Nations Administrative

                     Tribunal, Advisory Opinion, I.C.J. Reports 1973, pp. 257 and 262.
                        29 Application for Review of Judgement No. 273 of the United Nations Administrative

                     Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp. 365‑366, para. 79.
                        30 Ibid., p. 380.
                        31 Application for Review of Judgement No. 333 of the United Nations Administrative

                     Tribunal, Advisory Opinion, I.C.J. Reports 1987, p. 72, para. 97.

                     61

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                     a dministrative justice”. In his view, “the only true remedy” for the exist-
                      ing drawbacks

                          “would be the introduction of a second-tier administrative court, in
                          other words, a court with competence to review the decisions of the
                          first-tier court in all respects, both legal and factual, and to correct
                          and compensate any defects they may contain” (para. 6).

                                               7. General Assessment
                        47. In so far as the problem of the inequality of the parties in review
                     procedures before the ICJ is concerned, the incisive dissenting warning of
                     Judge Córdova in the Court’s Advisory Opinion on Judgments of the
                     Administrative Tribunal of the ILO upon Complaints Made against Unesco
                     (supra), dates from 23 October 1956. The problem still faced by the ICJ
                     today, 1 February 2012, over half a century later, when the Court delivers
                     its present Advisory Opinion on Judgment No. 2867 of the Administrative
                     Tribunal of the ILO upon a Complaint Filed against the International Fund
                     for Agricultural Development, is essentially the same.

                        48. For 56 years the force of inertia and mental lethargy have prevailed
                     in this regard. The abnormal procedure keeps on being followed by the
                     Court (in respect of review of the ILOAT judgments), in 2011 as in 1956,
                     rested olympically upon the dogma of times past that individuals cannot
                     appear before the ICJ because they are not subjects of international law.
                     The result is the prehistoric and fossilized procedure that defies logic,
                     common sense and the basic principle of the good administration of jus-
                     tice (la bonne administration de la justice).
                        49. In the course of the present proceedings, not only was the original
                     complaint in the hands of her opponent to submit their views to the
                     Court, but, moreover, twice the Registry of the Court had to intervene to
                     make sure that that was done in a duly and proper way (cf. supra). In
                     the already mentioned statement by Ms Saez García of 30 August 2011
                     (para. 20, supra), she complained of the inequality permeating the whole
                     review procedure ; not only was the IFAD the sole party able to request
                     review, but inequality continued to exist, as
                          “[t]he mere request for an advisory opinion has provided an excuse
                          for [the IFAD] not to execute Judgment [No.] 2867. Even though [the
                          IFAD]’s application for suspension of execution was denied, [it] has
                          still avoided execution on the grounds that it might become entitled
                          to repayment of the amounts due if the Court declares Judgment
                          [No.] 2867 invalid.” (Para. 14.)
                     In an epoch in which the topic of “The Rule of Law at National and
                     International Levels” is gaining increasing currency in the recent debates

                     62

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                     of the UN General Assembly 32, it may not be excessive to add that the
                     rule of law is not only for States but also for international organizations,
                     encompassing review procedures of the kind envisaged in the present
                     Advisory Opinion of the Court, in so far as the internal law of the United
                     Nations is concerned.
                        50. Last but not least, on the problem at issue, it should not pass
                     unnoticed that, throughout the last 56 years, dissenting views and well-
                     founded expressions of discontent with the present situation emanated
                     from Judges (also jurists) from different legal systems and traditions (like
                     M. Zafrulla Khan, R. Córdova, F. de Castro, P. Morozov, A. Gros,
                     H. Mosler and R. Ago). This is not surprising, as we are here before basic
                     principles of law, such as those of the good administration of justice (la
                     bonne administration de la justice) and of the equality of arms (égalité des
                     armes) in (international) legal procedure.
                        51. As for many years I have consistently attached the utmost impor-
                     tance to such matter (also in another international jurisdiction), I feel
                     obliged to take this criticism further, given the unnecessary persistence of
                     the problem, and the fact that it touches on other aspects which are very
                     dear to me, namely : (a) the emergence and consolidation of individuals
                     as subjects of international law ; (b) the imperative of securing the equal-
                     ity of the parties in the international legal process, as a component of the
                     right of access to justice lato sensu ; and (c) the need to secure the locus
                     standi in judicio and the jus standi to individuals before international tri-
                     bunals, including the ICJ. May I thus add some remarks on the regretta-
                     ble persistence of procedural inequality, and then move, accordingly, to
                     the consideration, within the confines of the present separate opinion, of
                     these three remaining points.

                            VIII. The Force of Inertia: The Regrettable Persistence
                                          of Procedural Inequality

                        52. As we have seen, the problem of procedural inequality has
                     marked presence in five previous Advisory Opinions of the Court, namely,
                     those of 1954, 1956, 1973, 1982 and 1987 (cf. supra). Despite this inequal-
                     ity, or parallel to it, the inclination of the ICJ has been in the sense of
                     confirming the validity of the decisions at issue of both the UNAT and
                     the ILOAT, whether favourable to the original complainants or not.
                     Thus, in its Advisory Opinions of 1954, 1973, 1982 and 1987, it upheld
                     the prior decisions of the UNAT, while in its Advisory Opinion of 1956
                     and in the present one of 2012, it did the same in respect of prior deci-

                        32 Cf., on the item “The Rule of Law at the National and International Levels”,

                     the following resolutions of the UN General Assembly : resolutions A/RES/61/39, of
                     4 December 2006 ; A/RES/62/70, of 6 December 2007 ; A/RES/63/128, of 11 December 2008 ;
                     A/RES/64/116, of 16 December 2009 ; A/RES/65/32, of 6 December 2010.

                     63

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                     sions of the ILOAT (cf. supra). Yet, the handling of the issue of proce-
                     dural inequality — e.g., by deciding not to have oral hearings in the
                     course of the proceedings — has been and is, in my understanding, most
                     unsatisfactory : rather than a solution, it is the capitulation in face of a
                     persisting problem.
                        53. It is not surprising that, in the mid-1990s, the initiative was again
                     taken by the UN General Assembly to undertake an over-all revision of
                     the review procedure concerning the UNAT. This occurred half a century
                     after its 1955 reconsideration of the procedures for review of judgments
                     of administrative tribunals. In fact, the UN General Assembly retook the
                     subject, in 1994. This time the General Assembly focused specifically on
                     the review of the procedure under Article 11 of the Statute of the UNAT.
                     A clear majority of the delegations found that that procedure was not
                     feasible, and should be replaced by a more adequate one, “to assist
                     practically in the resolution of staff employment problems” (UN

                     doc. A/C.6/49/2 para. 9, and cf. para. 12).
                        54. Much of the criticism was directed to the appeal system (in the
                     review procedure at issue) available within the Secretariat (para. 37). Sev-
                     eral representatives raised “serious doubts” about the appropriateness of
                     involving the ICJ in staff disputes ; the Nordic countries noted further, in
                     particular, that “the advisory procedure envisaged by the Statute of the
                     Court did not provide an appropriate adversary procedure necessary for
                     an appeals tribunal, which is the Court’s present role in this process”
                     (para. 18) 33.

                       55. The “overwhelming majority of representatives” found that the
                     UNAT’s review procedure “should be abolished” (para. 36). This is what
                     in fact happened. By 1995 the decision had been taken to suppress the
                     existing review procedure in respect of the UNAT ; that mechanism was
                     formally extinguished by General Assembly resolution 50/54, of 29 Janu-
                     ary 1996. However, the other mechanism, the review procedure in respect
                     of the ILOAT, persists to date, and, with it, by force of inertia, the pro-
                     cedural inequality which has existed from the beginning.

                        56. The shortcomings of, and problems raised by, the operation of
                     international administrative jurisdictions in general, and by the review
                     procedure in particular, have kept on being the object of attention in
                     expert writing 34. Yet, such problems persist to date. This being so, it

                        33 And cf. para. 35, for the reference to the 1984 Report of the UN Secretary-General,

                     on the feasibility of establishing a single administrative tribunal for the settlement of
                     disputes of the kind.
                        34 Cf, inter alia, e.g., X. Pons Rafols, Las Garantías Jurisdiccionales de los Funcio‑

                     narios de las Naciones Unidas, Barcelona, Universitat de Barcelona, 1999, Chap. IV,
                     pp. 145‑193 ; D. Ruzié, “Réflexions sur la pratique du droit de recours des fonctionnaires
                     internationaux”, Internationale Gemeinschaft und Menschenrechte — Festschrift für G. Ress
                     (eds. J. Bröhmer et alii), Cologne/Berlin/Munich, C. Heymanns Verlag, 2005, pp. 223‑233.

                     64

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                     71 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     seems all too proper to rescue, for consideration in the present context,
                     the advances experienced by the jus gentium of our times with the emer-
                     gence and consolidation of individuals as subjects of international law,
                     with their access to justice lato sensu (encompassing procedural equality),
                     with their locus standi in judicio and their jus standi, in the hope that due
                     consideration will be given to them in the operation of international
                     administrative jurisdictions in general (encompassing the review proce-
                     dure in particular) in future developments.

                     IX. The Emergence of Individuals as Subjects of International Law,
                              Endowed with International Juridical Capacity

                        57. Preliminarily, it should be kept in mind that this matter can, in its
                     origins, be traced back to the emerging law of nations, which envisaged
                     the individuals as subjects of rights. In effect, the acknowledgment of the
                     necessity of the legitimatio ad causam of individuals in international law 35,
                     finds support, in historical perspective, in the thinking of the so-called
                     “founding fathers” of the discipline, which should not be forgotten in our
                     times. May I briefly recall the main thrust of their thinking to this effect,
                     within the confines of the present separate opinion. I have done so in my
                     separate opinion (paras. 26-28) in the Court’s Order of 4 July 2011 (con-
                     cerning the intervention of Greece) in the case concerning the Jurisdic‑
                     tional Immunities of the State (Germany v. Italy) ; as the point has again
                     been brought to the fore in the course of the present advisory proceed-
                     ings, I deem it fit to dwell upon it once more herein, in greater detail, in
                     the present separate opinion.

                        58. During the sixteenth century, the conception of Francisco de Vito-
                     ria (author of the renowned Relecciones Teológicas, 1538-1539) flour-
                     ished, whereby the law of nations regulates an international community
                     (totus orbis) constituted of human beings organized socially in States and
                     co-extensive with humanity itself ; the reparation of breaches of (human)
                     rights reflects an international necessity fulfilled by the law of nations,
                     with the same principles of justice applying both to States and to the
                     individuals and peoples who form them 36. Earlier on, in his De Lege,

                         35 A. A. Cançado Trindade, The Access of Individuals to International Justice, Oxford

                     University Press, 2011, pp. 1‑212 ; A. A. Cançado Trindade, Evolution du droit international
                     au droit des gens — L’accès des individus à la justice internationale : le regard d’un juge,
                     Paris, Pedone, 2008, pp. 7‑184 ; A. A. Cançado Trindade, El Acceso Directo del Individuo
                     a los Tribunales Internacionales de Derechos Humanos, Bilbao, University of Deusto, 2001,
                     pp. 7‑96.
                         36 Cf. F. de Vitoria, Relecciones — del Estado, de los Indios, y del Derecho de la

                     Guerra, Mexico, Porrúa, 1985, pp. 1‑101 ; Francisco de Vitoria, De Indis — Relectio Prior
                     (1538‑1539), in Obras de Francisco de Vitoria — Relecciones Teológicas (ed. T. Urdanoz),
                     Madrid, BAC, 1960, p. 675 ; F. de Vitoria, La Ley (De Lege — Commentarium in Primam
                     Secundae), Madrid, Tecnos, 1995, pp. 5, 23 and 77.

                     65

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                     F. de Vitoria sustained the necessity of every law to pursue, above all, the
                     common good ; and he added that natural law is found not in the “will”,
                     but rather in right reason (recta ratio) 37.

                        59. More than four and a half centuries later, his message retains a
                     remarkable topicality. On his turn, Alberico Gentili (author de De Jure
                     Belli, 1598) sustained, by the end of the sixteenth century, that law gov-
                     erns the relationships between the members of the universal societas gen‑
                     tium. In his De Jure Belli Libri Tres (1612), A. Gentili held that the law of
                     nations was “established among all human beings”, being “observed by
                     all mankind” 38. In the seventeenth century, in the outlook advanced by
                     Francisco Suárez (author of the treaty De Legibus ac Deo Legislatore,
                     1612), the law of nations discloses the unity and universality of human-
                     kind, and regulates the States in their relations as members of the univer-
                     sal society 39.
                        60. Shortly afterwards, the conception elaborated by Hugo Grotius
                     (De Jure Belli ac Pacis, 1625), sustained that societas gentium comprises
                     the whole of humankind, and the international community cannot pre-
                     tend to base itself on the voluntas of each State individually ; human
                     beings — occupying a central position in international relations — have
                     rights vis-à-vis the sovereign State, which cannot demand obedience of
                     their citizens in an absolute way (the imperative of the common good), as
                     the so-called “raison d’Etat” has its limits, and cannot prescind from
                     law 40. In this line of reasoning, in the eighteenth century, Samuel Pufen-
                     dorf (De Jure Naturae et Gentium, 1672) sustained as well the subjection
                     of the legislator to reason ; to him, international law was founded on nat-
                     ural law, being a great system of universal law “embracing even private
                     law” 41.
                        61. On his turn, Christian Wolff (author of Jus Gentium Methodo
                     Scientifica Pertractatum, 1749), pondered that, just as individuals ought
                      to, in their association in the State, promote the common good, the State

                         37 F. de Vitoria, La Ley (De Lege — Commentarium in Primam Secundae), Madrid,

                     Tecnos, 1995, pp. 5, 23 and 77.
                         38 A. Gentili, De Jure Belli Libri Tres (1612), Vol. II, Oxford/London, Clarendon

                     Press/H. Milford — Carnegie Endowment for International Peace, 1933, p. 8.
                         39 Cf. Association Internationale Vitoria‑Suárez, Vitoria et Suárez — Contribution des

                     théologiens au droit international moderne, Paris, Pedone, 1939, pp. 169‑170.
                         40 Cf., on his conception of jus gentium, H. Grotius, De Jure Belli ac Pacis (1625), The

                     Hague, Nijhoff, 1948, pp. 6, 10 and 84‑85. Cf. also Hersch Lauterpacht, “The Grotian
                     Tradition in International Law”, 23 British Yearbook of International Law (BYBIL)
                     (1946), pp. 1‑53.
                         41 H. Wehberg, “Introduction”, in S. Pufendorf, Elementorum Jurisprudentiae Univer‑

                     salis Libri Duo (1672), Vol. II, Oxford/London, Clarendon Press/H. Milford — Carnegie
                     Endowment for International Peace, 1931, pp. XIV, XVI and XXII. To him, the standards
                     of justice applied vis-à-vis the States as well as the individuals ; Hersch Lauterpacht, “The
                     Law of Nations, the Law of Nature and the Rights of Man”, 29 Transactions of the Grotius
                     Society (1943), pp. 7 and 21‑31, esp. p. 26.

                     66

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                     for its part has the correlative duty to seek its perfection 42. Stressing that
                     the law of nations was necessary rather than voluntary, Wolff defined it
                     as “the science of that law which nations or peoples use in their relations
                     with each other and of the obligations corresponding thereto” ; it “binds
                     nations in conscience”, in order to preserve society composed of individu-
                     als, and to promote the common good. Wolff stressed that, just as all
                     individuals were free and equal, all nations likewise were “by nature equal
                     the one to the other”, with the corresponding rights and obligations being
                     also the same 43. Already in the presentation of his treatise, Wolff wrote
                     with clarity that natural law
                          “controls the acts of individual men as well as those of nations also,
                          by prescribing duties both toward themselves and toward each other.
                          And just as it has united individual men to each other (. . .) and has
                          established among them a certain society, so that man is necessary to
                          man (. . .) ; so has it united nations, (. . .) so that nation is necessary
                          to nation (. . .). Therefore the entire human race is likened to a living
                          body (. . .), and it retains unimpaired health so long as the individual
                          members perform their functions properly.” 44
                        62. However, the illuminating thoughts and vision of the so-called
                     founding fathers of international law, which conceived it as a truly univer‑
                     sal system, regrettably came to be gradually surpassed by new doctrinal
                     constructions, and mainly by the emergence of legal positivism. Yet, even
                     with the early emergence of this latter, doctrinal constructions such as
                     that of Cornelius van Bynkershoek (De Foro Legatorum, 1721 ; Questio‑
                     nes Juris Publici — Libri Duo, 1737) continued to uphold a multiplicity of
                     subjects of jus gentium. To Bynkershoek, e.g., those subjects were mainly
                     the nations (gentes), but also peoples and other “persons of free will”
                     (inter volentes) ; legal subjectivity, to him, embraced all those who acted
                     in the field of jus gentium of his times, and, to approach this latter, resort
                     was to some extent still made to ratio 45.
                        63. The subsequent personification of the all‑powerful State, inspired
                     mainly in the philosophy of law of Hegel, had a harmful influence in the
                     evolution of international law by the end of the nineteenth century and
                     the beginning of the twentieth century. This doctrinal trend resisted as

                         42 C. Wolff beheld nation-States as members of a civitas maxima, a concept which

                     Emmerich de Vattel (author of Le Droit des Gens, 1758), subsequently, invoking the neces-
                     sity of “realism”, pretended to replace by a “society of nations” (a less advanced concept) ;
                     cf. F. S. Ruddy, International Law in the Enlightenment — The Background of Emmerich de
                     Vattel’s “Le Droit des Gens”, Dobbs Ferry/N.Y., Oceana, 1975, p. 95.
                        43 C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (edition of 1764), Vol. II,

                     Oxford/London, Clarendon Press/H. Milford — Carnegie Endowment for International
                     Peace, 1934, pp. 3, 9‑11, 13 and 15‑16.
                        44 Ibid., p. 3.
                        45 K. Akashi, Cornelius van Bynkershoek : His Role in the History of International Law,

                     The Hague, Kluwer, 1998, pp. 56‑59, 174‑175 and 178‑179, and cf. pp. 68‑69.

                     67

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                     much as it could to the ideal of emancipation of the human being as sub-
                     ject of the law of nations, endowed with international juridical capacity.
                     Legal positivism personified the State and shifted emphasis to its “will”,
                     seeking to reduce the rights of the human person to those “conceded” by
                     the State. It was necessary to wait for the first decades of the twentieth
                     century to witness individuals vindicating their own rights as subjects of
                     the law of nations, endowed with international juridical personality.
                        64. The advent of a permanent international jurisdiction, early in the
                     twentieth century, in fact transcended a purely inter-State outlook of the
                     international contentieux. The projected International [Maritime] Prize
                     Court (1907) foresaw the access to international justice not only by States,
                     but also by individuals. That Court, however, was not established, given
                     the lack of the required number of ratifications for the corresponding
                     Convention to enter into force. Yet, the idea of overcoming the inter-
                     State paradigm was already present at the II Hague Peace Conference of
                     1907. In that same year, in effect the idea found concrete expression, not
                     at universal level, but rather at the regional Latin-American level, by
                     means of the creation of the first (permanent) international tribunal of
                     our era, the Central American Court of Justice.
                        65. Created in 1907 and endowed with a wide jurisdictional basis, the
                     Central American Court of Justice, the pioneer of modern international
                     tribunals, granted jus standi (direct access) not only to States but also to
                     individuals who could present claims against their own States. In fact, the
                     Central American Court of Justice was seized by both States and indi-
                     viduals 46, having operated continuously for one decade (1908-1918),
                     while the Washington Convention which established it remained in force.
                     Once again, Latin America, faithful to its rich international legal heritage,
                     was in the forefront of the evolution of modern international law in this
                     domain.

                        66. The Central American Court of Justice heralded the advent and
                     the first concrete advances of the rule of law (préeminence du droit) at
                     international level, even before the creation of the Permanent Court of
                     International Justice (PCIJ). During its decade of existence, it was
                     regarded as giving expression to the “Central American conscience” 47.
                     The important point to retain here is that, in historical perspective, that
                     pioneering experiment granted jus standi — not only locus standi in judi‑
                     cio — to individuals as the complaining party before it.

                        67. In the era of the League of Nations, other pioneering experiments
                     flourished, going likewise beyond the traditional inter-State dimension,

                        46 A. A. Cançado Trindade, “International Law for Humankind : Towards a New Jus

                     Gentium — General Course on Public International Law — Part I”, 316 Recueil des cours
                     de l’Académie de droit international de la Haye (RCADI) (2005), p. 289.
                        47 C. J. Gutiérrez, La Corte de Justicia Centroamericana, San José, Costa Rica, Ed.

                     Juricentro, 1978, pp. 31, 42, 106, 150‑154 and 157‑158.

                     68

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                     and giving procedural capacity to individuals (jus standi and locus standi)
                     at international level. Such was the case of the systems of minorities and
                     of territories under mandate (infra), and the systems of petitions of
                     Upper Silesia, the Aaland Islands and of the Saar and of Danzig 48. They
                     paved the way for the consolidation, in the era of the United Nations, of
                     the mechanisms of international individual petition, not only in the trust-
                     eeship system, but also, and above all, under the international human
                     rights treaties and instruments 49, which were to be extended also to the
                     regional level (European and Inter-American Courts of Human Rights,
                     lately followed by the African Court of Human and Peoples’ Rights). The
                     individual was erected into subject of international law, endowed with
                     international procedural capacity.

                        68. The individual came to be acknowledged as subject of both domes-
                     tic and international law 50. In fact, he has always remained in contact,
                     directly or indirectly, with the international legal order. In the inter-war
                     period, the experiments of the minorities 51 and mandates 52 systems under
                     the League of Nations, for example, bear witness thereof 53. They were

                        48 J. C. Wittenberg, “La recevabilité des réclamations devant les juridictions internatio-

                     nales”, 41 RCADI (1932), pp. 5‑135 ; J. Stone, “The Legal Nature of Minorities Petition”,
                     12 BYBIL (1931), pp. 76‑94 ; M. Sibert, “Sur la procédure en matière de pétition dans les
                     pays sous mandat et quelques-unes de ses insuffisances”, 40 RGDIP (1933), pp. 257‑272 ;
                     M. St. Korowicz, Une expérience en droit international — La protection des minorités de
                     Haute-Silésie, Paris, Pedone, 1946, pp. 81‑174.
                        49 J. Beauté, Le droit de pétition dans les territoires sous tutelle, Paris, LGDJ, 1962,

                     pp. 1‑256 ; M. E. Tardu, Human Rights — The International Petition System, Binders 1‑3,
                     Dobbs Ferry/N.Y., Oceana, 1979‑1985 ; T. Zwart, The Admissibility of Human Rights Peti‑
                     tions, Dordrecht, Nijhoff, 1994, pp. 1‑237.
                        50 On the historical evolution of the legal personality in the law of nations, cf. H. Mosler,

                     “Réflexions sur la personnalité juridique en droit international public”, in Mélanges offerts à
                     H. Rolin — Problèmes de droit des gens, Paris, Pedone, 1964, pp. 228‑251 ; G. Arangio‑Ruiz,
                     Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9‑268 ;
                     G. Scelle, “Some Reflections on Juridical Personality in International Law”, in Law and
                     Politics in the World Community (ed. G. A. Lipsky), Berkeley/L.A., University of Cali-
                     fornia Press, 1953, pp. 49‑58 and 336 ; J. A. Barberis, “Nouvelles questions concernant la
                     personnalité juridique internationale”, 179 RCADI (1983), pp. 157‑238.
                        51 Cf., e.g., P. de Azcárate, League of Nations and National Minorities : An Experiment,

                     Washington, Carnegie Endowment for International Peace, 1945, pp. 123‑130 ; J. Stone,
                     International Guarantees of Minorities Rights, Oxford University Press, 1932, p. 56 ;
                     A. N. Mandelstam, “La protection des minorités”, 1 RCADI (1923), pp. 363‑519.
                        52 Cf., e.g., G. Diena, “Les mandats internationaux”, 5 RCADI (1924), pp. 246‑261 ;

                     N. Bentwich, The Mandates System, London, Longmans, 1930, p. 114 ; Quincy Wright,
                     Mandates under the League of Nations, Chicago University Press, 1930, pp. 169‑172.
                        53 C. A. Norgaard, The Position of the Individual in International Law, Copenhagen,

                     Munksgaard, 1962, pp. 109‑131 ; A. A. Cançado Trindade, “Exhaustion of Local Rem
                     edies in International Law Experiments Granting Procedural Status to Individuals in the
                     First Half of the Twentieth Century”, 24 Netherlands International Law Review/Nederlands
                     Tijdschrift voor international Recht (1977), pp. 373‑392.

                     69

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                     followed, in that regard, by the trusteeship system 54 under the United
                     Nations era, parallel to the development under this latter, over the years,
                     of the multiple mechanisms — conventional and extra-conventional — of
                     international protection of human rights.
                        69. Those earlier experiments in the twentieth century were of rele-
                     vance for subsequent developments in the international safeguard of the
                     rights of the human person 55. It is beyond the purposes of the present
                     separate opinion to undertake a survey of all these developments. May I
                     limit myself here, once again, to refer to my previous separate opinion in
                     the Court’s recent Order of 4 July 2011 (pertaining to Greece’s interven-
                     tion) in the case concerning the Jurisdictional Immunities of the State
                     (Germany v. Italy) : I have had therein the occasion to dwell upon the
                     distinct aspects of the individuals as titulaires of rights (parallel to States)
                     in the new jus gentium of our times, namely : (a) the legacy of the indi-
                     viduals’ subjectivity in the law of nations (paras. 25‑29) ; (b) their pres-
                     ence and participation in the international legal order (paras. 30‑35) ; (c)
                     their rescue as subjects of international law (paras. 36-49) ; and (d) the
                     historical significance of their international subjectivity (paras. 50‑54).

                                  X. Subjects of Rights : The Outdated Dogmatism
                                           of the PCIJ and ICJ Statutes

                       70. The question of the procedural capacity of the individuals before
                     the ICJ, and its predecessor the Permanent Court of International Justice
                     (PCIJ), was effectively considered on the occasion of the original drafting,
                     by the Advisory Committee of Jurists appointed by the old League of
                     Nations, of the Statute of the PCIJ in 1920 56. Of the ten members of the
                     aforementioned Committee of Jurists, only two — Loder and de La
                     Pradelle — pronounced themselves in favour of enabling the individuals
                     to appear as parties before the Hague Court (jus standi) in contentious
                     cases against (foreign) States. The majority of the Committee, however,
                     was firmly opposed to this proposition : four members 57 objected that the
                     individuals were not subjects of international law (and could not, thus, in
                     their view, be parties before the Court) and that only the States were

                        54 Cf., e.g., C. E. Toussaint, The Trusteeship System of the United Nations, London,

                     Stevens, 1956, pp. 39, 47 and 249‑250 ; J. Beauté, Le droit de pétition dans les territoires sous
                     tutelle, Paris, LGDJ, 1962, pp. 48‑136 ; G. Vedovato, “Les accords de tutelle”, 76 RCADI
                     (1950), pp. 613‑694.
                        55 Cf., e.g., C. Th. Eustathiades, “Une nouvelle expérience en droit international — Les

                     recours individuels à la Commission des droits de l’homme”, Grundprobleme des interna‑
                     tionalen Rechts — Festschrift für J. Spiropoulos, Bonn, Schimmelbusch, 1957, pp. 111‑137,
                     esp. pp. 77 and 121, note 32
                        56 A. A. Cançado Trindade, El Acceso Directo del Individuo…, op. cit. supra note 35,

                     p. 31, and pp. 32‑35.
                        57 Arturo Ricci-Busatti, Baron Descamps, Raul Fernandes and Lord Phillimore.

                     70

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                     juridical persons in the international order — in what they were followed
                     by the other members 58.
                        71. The position which prevailed in 1920 — which has been surprisingly
                     and regrettably maintained in Article 34 (1) of the Statute of the ICJ (for-
                     merly the PCIJ) to date — was promptly and strongly criticized in the
                     more lucid doctrine of the epoch (already in the twenties). Thus, in his
                     thoughtful monograph Les nouvelles tendances du droit international
                     (1927), Nicolas Politis pondered that the States are no more than fictions,
                     composed as they are of individuals, and that all law ultimately aims at the
                     human being, and nothing more than the human being 59: this is something
                     “so evident” — he added, that “it would be needless to dwell on the point
                     had not the mists of sovereignty obscured the most basic of truths”. 60
                        And N. Politis proceeded in the defence of the granting to individuals
                     of the direct appeal to international instances to vindicate their “legiti-
                     mate interests”, as that would to “a true necessity of international life” 61.

                        72. Another criticism to the solution adopted in the matter by the Stat-
                     ute of the PCIJ (Article 34 (1)) was formulated by J. Spiropoulos, also in
                     the twenties. Already in 1928, he had anticipated that the emancipation
                     of the individual from the State was a “question of time” and that the
                     individual should be able to defend himself and his rights at the interna-
                     tional level 62. There was — he added — no impediment for conventional
                     international law to secure to individuals a direct action at international
                     level (there having even been precedents in this sense in the inter-war
                     period) ; if this did not occur and one would limit oneself to judicial
                     actions at domestic law level, not seldom the State would become “judge
                     and party” at the same time, what would be an incongruity.
                        73. To J. Spiropoulos, the international legal order can address itself
                     directly to individuals (as exemplified by the peace treaties of the inter-
                     war period), thereby erecting them into the condition of subjects of inter-
                     national law, to the extent that a direct relationship is established between
                     the individual and the international legal order, which renders him
                     “directly titulaire of rights or of obligations” ; thus, one cannot fail to
                     admit the international legal personality of the individual 63. Without the
                     granting to individuals of direct means of action at international level, his
                     rights will continue “without sufficient protection” ; only with such direct
                     action before an international instance — he added — an effective protec-

                        58 Cf. account in J. Spiropoulos, L’individu en droit international, Paris, LGDJ, 1928,

                     pp. 50‑51 ; N. Politis, op. cit. infra note 59, pp. 84‑87 ; M. St. Korowicz, “The Problem of
                     the International Personality of Individuals”, 50 American Journal of International Law
                     (1956), p. 543.
                        59 N. Politis, Les nouvelles tendances du droit international, Paris, Libr. Hachette, 1927,

                     pp. 76‑77 and 69.
                        60 Ibid., pp. 77‑78.
                        61 Ibid., pp. 82‑83 and 89-90, and cf. pp. 92 and 61.
                        62 J. Spiropoulos, op. cit. supra note 58, p. 44, and cf. pp. 49 and 64-65.
                        63 Ibid., pp. 25, 31-33, 40-41 and 50-51.

                     71

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                     tion of human rights will be achieved, in conformity with “the spirit of
                     the new international order”.
                        74. The option made by the draftsmen of the Statute of the old PCIJ,
                     stratified with the passing of time in the Statute of the ICJ up to the pres-
                     ent time, is even more open to criticism if we consider that, already in the
                     first half of the twentieth century, there were experiments of international
                     law which in effect granted international procedural status to individuals.
                     This is exemplified by the system of the navigation of the Rhine River, by
                     the Project of an International Prize Court (1907), by the Central Ameri-
                     can Court of Justice (1907-1917), as well as, in the era of the League of
                     Nations, by the systems of minorities (including Upper Silesia) and of the
                     territories under mandate, by the systems of petitions of the Aaland
                     Islands and of the Saar and of Danzig, besides the practice of mixed arbi-
                     tral tribunals and of mixed claims commissions, of the same epoch 64.

                        75. This evolution intensified and generalized in the era of the United
                     Nations, with the adoption of the system of individual petitions under
                     some universal human rights treaties of our times, in addition to human
                     rights conventions at regional level, which established international
                     human rights tribunals (the European and Inter-American Courts of
                     Human Rights 65, followed, more recently, by the African Court of
                     Human and Peoples’ Rights). Thereunder the international procedural
                     capacity of individuals came to be exercised, with their direct access to
                     international justice 66. The significance of the right of individual petition
                     can only be properly assessed in historical perspective.

                         64 For a study, cf., e.g., A. A. Cançado Trindade, “Exhaustion of Local Remedies in

                     International Law Experiments Granting Procedural Status to Individuals in the First
                     Half of the Twentieth Century”, op. cit. supra note 53, pp. 373‑392 ; C. A. Norgaard,
                     The Position of the Individual in International Law, op. cit. supra note 53, pp. 109‑128 ;
                     M. St. Korowicz, Une expérience de droit international — La protection de minorités de
                     Haute-Silésie, op. cit. supra note 48, pp. 81‑174 ; among others.
                         65 A. A. Cançado Trindade, El Acceso Directo del Individuo…, op. cit. supra note 35,

                     pp. 34‑35.
                         66 At the beginning of the exercise of the right to individual petition, such right, even

                     if motivated by the search for individual reparation, also contributed to secure the respect
                     for the objective obligations that were binding upon States parties. Cf., under the orig-
                     inal text of Article 25 of the European Convention on Human Rights, e.g., H. Rolin, “Le
                     rôle du requérant dans la procédure prévue par la Commission européenne des droits de
                     l’homme”, 9 Revue hellénique de droit international (1956), p. 9 ; C. Th. Eustathiades, “Les
                     recours individuels à la Commission européenne des droits de l’homme”, Grundprobleme
                     des internationalen Rechts — Festschrift für J. Spiropoulos, Bonn, Schimmelbusch, 1957,
                     p. 121 ; F. Durante, Ricorsi Individuali ad Organi Internazionali, Milan, Giuffrè, 1958,
                     pp. 129‑130 ; K. Vasak, La Convention européenne des droits de l’homme, Paris, LGDJ,
                     1964, pp. 96‑98 ; F. Matscher, “La Posizione Processuale dell’Individuo come Ricorrente
                     dinanzi agli Organi della Convenzione Europea dei Diritti dell’Uomo”, Studi in Onore
                     di G. Sperduti, Milan, Giuffrè, 1984, pp. 601‑620.

                     72

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                                  XI. The Erosion of the Inter-State Outlook
                                          of Adjudication by the ICJ

                        76. The fact that the Advisory Committee of Jurists did not find, in
                     1920, that the time was ripe to grant access to the PCIJ to subjects of
                     rights other than the States, such as the individuals, did not mean a defin-
                     itive answer to the question at issue. The fact that the same position was
                     maintained at the time of adoption in 1945 of the Statute of the ICJ did
                     not mean a definitive answer to the question at issue. The question of
                     access of individuals to international justice, with procedural equality,
                     continued to occupy the attention of legal doctrine ever since, throughout
                     the decades. Individuals and groups of individuals began to have access
                     to other international judicial instances (cf. supra), reserving the PCIJ and
                     later the ICJ only for disputes between States.
                        77. The dogmatic position taken originally in 1920, on the occasion of
                     the preparation and adoption of its Statute, did not hinder the PCIJ to
                     occupy itself promptly of cases pertaining to the treatment of minorities
                     and inhabitants of cities or territories with a juridical statute of their own.
                     In considerations developed in the examination of such matters, the PCIJ
                     went well beyond the inter-State dimension, taking into account the posi-
                     tion of individuals themselves (as in, e.g., inter alia, the Advisory Opinion
                     on the Jurisdiction of the Courts of Danzig, 1928 — cf. infra, para. 88).
                     Ever since, the artificiality of such a dimension became noticeable and
                     acknowledged, already at an early stage of the case law of the PCIJ.

                        78. The exclusively inter-State character of the contentieux before the
                     ICJ has not appeared satisfactory at all. At least in some cases, pertaining
                     to the condition of individuals, the presence of these latter (or of their
                     legal representatives), in order to submit, themselves, their positions,
                     would have enriched the proceedings and facilitated the work of the
                     Court. One may recall, for example, the classical Nottebohm case con-
                     cerning double nationality (Liechtenstein v. Guatemala) (1955) ; the case
                     concerning the Application of the Convention of 1902 Governing the Guard‑
                     ianship of Infants (Netherlands v. Sweden) (1958) ; the cases of the Trial of
                     Pakistani Prisoners of War (Pakistan v. India) (1973) ; of the Hostages
                     (United States Diplomatic and Consular Staff in Tehran case (United
                     States v. Iran) (1980) ; of the East Timor (Portugal v. Australia) (1995) ;
                     the case of the Application of the Convention against Genocide (Bosnia and
                     Herzegovina v. Yugoslavia) (1996) ; and the three successive cases con-
                     cerning consular assistance — namely, the case Breard (Paraguay
                     v. United States) (1998) ; the case LaGrand (Germany v. United States)
                     (2001) and the case Avena and Other Mexican Nationals (Mexico v. United
                     States) (2004).
                        79. In those cases, one cannot fail to reckon that one of their predom-
                     inant elements was precisely the concrete situation of the individuals
                     directly affected, and not merely abstract issues of exclusive interest of the

                     73

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                     litigating States in their relations inter se. Moreover, one may further
                     recall that, in the case of Armed Activities on the Territory of Congo
                     (Democratic Republic of the Congo v. Uganda) (2000), the ICJ was con-
                     cerned with grave violations of human rights and of international human-
                     itarian law ; in the Land and Maritime Boundary between Cameroon and
                     Nigeria (Cameroon v. Nigeria) (1996), it was likewise concerned with the
                     victims of armed clashes. More recent examples wherein the Court’s con-
                     cerns have gone beyond the inter-State outlook include, e.g., the case on
                     Questions relating to the Obligation to Prosecute or Extradite (Belgium
                     v. Senegal) (2009) pertaining to the principle of universal jurisdiction
                     under the UN Convention against Torture ; the Advisory Opinion on the
                     Accordance with International Law of the Unilateral Declaration of Inde‑
                     pendence in Respect of Kosovo (2010) ; the case of Ahmadou Sadio Diallo
                     (Republic of Guinea v. Democratic Republic of the Congo) (2010) on
                     detention and expulsion of a foreigner ; the case of the Jurisdictional
                     Immunities of the State (Germany v. Italy) (counter-claim, 2010) ; the case
                     of the Application of the International Convention on the Elimination of All
                     Forms of Racial Discrimination (Georgia v. Russian Federation) (2011) ;
                     the case of the Temple of Preah Vihear (Cambodia v. Thailand) (2011).

                       80. The artificiality of the exclusively inter-State outlook of the proce-
                     dures before the ICJ is thus clearly disclosed by the very nature of some
                     of the cases submitted to it. Such artificiality has been criticised, time and
                     time again, in expert writing, including by a former President of the Court
                     himself. It was recalled that “nowadays a very considerable part of inter-
                     national law” (e.g., law‑making treaties) “directly affects individuals”,
                     and the effect of Article 34 (1) of the ICJ Statute has been “to insulate”
                     the Court “from this great body of modern international law”. The ICJ
                     remains
                          “trapped by Article 34 (1) in the notions about international law
                          structure of the 1920s. (. . .) [I]t is a matter for concern and for further
                          thought, whether it is healthy for the World Court still to be, like the
                          international law of the 1920s, on an entirely different plane from that
                          of municipal courts and other tribunals.” 67

                       81. To the same effect, S. Rosenne expressed the view, already in 1967,
                     that there was “nothing inherent in the character of the International
                     Court itself to justify the complete exclusion of the individual from appear-
                     ing before the Court in judicial proceedings of direct concern to him” 68.
                     The current practice of exclusion of the locus standi in judicio of the indi-

                         67 R. Y. Jennings, “The International Court of Justice after Fifty Years”, 89 American

                     Journal of International Law (1995), p. 504.
                         68 S. Rosenne, “Reflections on the Position of the Individual in Inter-State Litigation

                     in the International Court of Justice”, in International Arbitration — Liber Amicorum for
                     M. Domke (ed. P. Sanders), The Hague, Nijhoff, 1967, p. 249, and cf. p. 242.

                     74

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                     81 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     viduals concerned from the proceedings before the ICJ — he added — in
                     addition to being artificial, could also produce “incongruous results”. It
                     was thus highly desirable that that scheme be reconsidered, in order to
                     grant locus standi to individuals in proceedings before the ICJ, as

                               “it is in the interests of the proper administration of international
                               justice that in appropriate cases the International Court of Justice
                               should take advantage of all the powers which it already possesses,
                               and permit an individual directly concerned to present himself before
                               the Court, (. . .) and give his own version of the facts and his own
                               construction of the law” 69.

                                    XII. The Early Acknowledgment of the Inequality
                                         of the Parties in the Procedure of Review
                                         of Judgments of Administrative Tribunals

                        82. The fact that a procedure such as the one followed in the cas
                     d’espèce (review procedure) subsists unchanged to date, despite all the
                     insufficiencies it revealed in the course of past decades, and all the criti-
                     cisms raised by some of my predecessors as Members of this Court as well
                     as by expert writers, shows indeed the force of inertia and of mental leth-
                     argy in its maintenance to date. The present review procedure has per-
                     sisted so far, making abstraction of — or even indifferent to — the
                     remarkable advances achieved, in the international adjudication by other
                     tribunals, throughout the last decades, in respect of the equality of the
                     parties in the international legal process.
                        83. Yet, the question was the object of attention, early in the life of the
                     ICJ, shortly after the Court delivered its Advisory Opinion of 1954
                     (cf. supra), particularly when the UN General Assembly considered, in
                     1955, the Report of its Special Committee on Review of Administrative
                     Tribunal Judgments 70. In the debates that followed, during the Tenth
                     Session of the General Assembly, the participating delegations dwelt
                     upon a series of issues, amongst which was the problem of the lack of
                     locus standi in judicio of individuals in the review procedure before the
                     ICJ. The view was expressed that the review procedure should not be
                     used “in a manner that would take undue advantage of a staff member or
                     other interested party” 71.

                       84. In the course of the debates, the “serious practical difficulties” in
                     the review procedure before the ICJ were acknowledged ; the only possi-

                          69
                           Op. cit. supra note 68, p. 250, and cf. p. 243.
                          70
                           Cf. UN/General Assembly, Report of the Special Committee on Review of Adminis-
                     trative Tribunal Judgments, UN doc. A/2909, of 10 June 1955, pp. 1‑46.
                          71   Ibid., p. 11, para. 74.

                     75

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                     82 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     bility of bypassing them, then contemplated, was that of the presentation
                     of documents and written briefs by UN staff members, to be brought to
                     the attention of the ICJ, but not (under Article 66 (2) of the Court’s Stat-
                     ute) their representation at oral hearings before the Court 72. There was
                     thus, admittedly, a lack of equality between the parties 73, as UN staff
                     members had “no locus standi before the Court” ; the view was then
                     expressed that “it would be inequitable to deny a party the right to appear
                     before the reviewing body” 74.

                       85. On the occasion of that exercise of review at the Tenth Session of
                     the United Nations General Assembly (1955), the then UN Secretary-
                     General, Dag Hammarskjöld, pursuant to a suggestion of the Special
                     Committee, presented to the General Assembly an insightful Memoran-
                     dum entitled “Participation of Individuals in Proceedings before the
                     International Court of Justice” 75. He regarded of interest “to examine in
                     some detail the question of [the] possible participation [of] individuals in
                     proceedings before the International Court of Justice” (para. 7) 76. To
                     that end, Dag Hammarskjöld reviewed the work on this matter since the
                     days of the 1920 Advisory Committee of Jurists, focused on
                               “the question of the presentation by individuals of written and oral
                               statements of an argumentative character in contentious cases and in
                               advisory proceedings before the International Court of Justice and its
                               predecessor the Permanent Court of International Justice” (para. 8) 77.
                        86. Despite the fact that the Advisory Committee at the end decided
                     that “individuals should not be able to become parties” (para. 9), and
                     that this position remained unchanged at the San Francisco Conference
                     in 1945 (para. 25), the UN Secretary-General drew attention, in his Mem-
                     orandum, to the actual participation by individuals (who submitted writ-
                     ten statements) in advisory proceedings before the old PCIJ 78 (in the
                     “advisory case” of the Consistency of Certain Danzig Legislative Decrees
                     with the Constitution of the Free City (Advisory Opinion, 1935, P.C.I.J.,
                     Series A/B, No. 65, p. 41) (hereinafter Danzig Legislative Decrees) and in
                     the “advisory case” of the Governing Commission of the Saar Territory,
                     1939 79) (paras. 15-24) 80.
                          72Op. cit. supra note 70, pp. 5‑6, paras. 27 and 31.
                          73Ibid., p. 6, para. 31.
                         74 Ibid., p. 5, para. 27.
                         75 UN doc. A/AC.78/L.10, of 13 April 1955 (submitted to the Tenth Session of the

                     General Assembly, 20 September-20 December 1955), Official Records of the Tenth General
                     Assembly — Plenary Meetings, pp. 26‑28.
                         76 Ibid., p. 26.
                         77 Ibid., p. 26.
                         78 Ibid., pp. 27‑28.
                         79 The proceedings of this latter were never carried through, and the PCIJ had no

                     opportunity to pass on it, because of the disruption caused by the Second World War ;
                     ibid., p. 28, paras. 22-23.
                         80 Ibid., pp. 27‑28, paras. 15-24.

                     76

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                     83 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                        87. It is thus clear that, already in the mid-twentieth century, the afore-
                     mentioned Memorandum of 1955 of the UN Secretary-General acknow
                     ledged that the challenge in the present context — in respect of the
                     procedure of review of judgments of administrative tribunals — was to
                     devise an equitable procedure in this emerging domain. The practice of the
                     international administrative tribunals — of (formerly) the UN (the
                     UNAT) and the ILO (the ILOAT) — led one into the domain of the
                     internal or domestic law of international organizations 81, wherein the
                     individual also marked its presence as a subject of rights.
                        88. May I just, in addition, single out the historical relevance, in my
                     view, of the Advisory Opinion of the PCIJ on the Jurisdiction of the
                     Courts of Danzig (1928, P.C.I.J., Series B, No. 15) followed by its Advi-
                     sory Opinion on Danzig Legislative Decrees of 4 December 1935 (cf.,
                     para. 86 supra). In the view of Poland, the Danzig-Polish Agreement of
                     22 October 1921 (Beamtenabkommen), as an international agreement,
                     created “rights and obligations for the contracting Parties only” (p. 17).
                     The PCIJ, however, did not find that such Agreement could not create
                     “direct rights and obligations” for individuals. In its understanding, the
                     “very object” of the Beamtenabkommen, according to the ascertained
                     intention of the contracting Parties, had been “the adoption by the Par-
                     ties of some definite rules creating rights and obligations and enforceable
                     by the national courts” (paras. 17-18).
                        89. In sum, the PCIJ held that a treaty (the 1921 Danzig-Polish Agree-
                     ment) conferred rights directly upon the individuals concerned (railway
                     employees). They could thus lodge personal pecuniary claims (e.g., sala-
                     ries, and pensions), even though they had passed from the service of the
                     Free City of Danzig into the jurisdiction of Poland. Thus, as early as in
                     1928 — two decades before the proclamation by the UN General Assem-
                     bly of the Universal Declaration of Human Rights — the PCIJ had the
                     courage and vision to determine, in its Advisory Opinion on the Jurisdic‑
                     tion of the Courts of Danzig, that, in the circumstances of the matter
                     brought into its cognizance, individuals can be subjects of rights and
                     bearers of obligations emanating directly from international law, from an
                     international treaty.

                       90. That finding by the PCIJ, recognizing standing to individuals, as
                     early as in 1928, was to have repercussions in the following United
                     Nations era. Thus, the new Court, the ICJ, in its Advisory Opinion of

                        81 Cf. C. W. Jenks, The Proper Law of International Organizations, London/New York,

                     Stevens/Oceana, 1962, pp. 43 and 48 ; M. B. Akehurst, The Law Governing Employment
                     in International Organizations, Cambridge University Press, 1967, pp. 3‑10 ; S. Bastid,
                     “Have the UN Administrative Tribunals Contributed to the Development of International
                     Law ?”, Transnational Law in a Changing Society — Essays in Honour of Ph. C. Jessup
                     (ed. W. Friedmann, L. Henkin and O. Lissitzyn), N.Y., Columbia University Press, 1972,
                     pp. 301‑302, 307 and 309 ; A. A. Cançado Trindade, “Exhaustion of Local Remedies and
                     the Law of International Organizations”, 57 Revue de droit international de sciences diplo‑
                     matiques et politiques (Sottile), Geneva (1979), pp. 86‑87, 92, 96 and 108-109.

                     77

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                     84 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     1950 on the International Status of South West Africa, held that the
                     inhabitants of the mandated territories had (even irrespective of a bilat-
                     eral treaty) a right to petition the [former] UN Trusteeship Council, under
                     Article 80 of the UN Charter 82. From all the aforesaid, it is clear that, by
                     the mid-twentieth century, the individuals’ international legal standing,
                     and the need to secure a procès équitable (also in the emerging law of
                     international organizations) were already recognized.

                       XIII. The Imperative of Securing the Equality of the Parties in
                      the International Legal Process, as a Component of the Right of
                                       Access to Justice Lato Sensu

                        91. The awareness of the need to secure a procès équitable, and the
                     contribution of Secretary-General Dag Hammarskjöld to that end, should
                     not be forgotten in our days. The fact that, ever since, the problem at
                     issue has persisted unchanged to date, is, in my view, cause of concern.
                     Worse still, in our days, the unsettled problem makes abstraction of the
                     considerable contribution — in addition to the UN Human Rights Com-
                     mittee, quoted by this Court in the present Advisory Opinion — of inter-
                     national human rights tribunals operating for many years — the European
                     (ECHR) and the Inter-American (IACtHR) Courts of Human Rights to
                     the basic principle of equality of arms (égalité des armes) in international
                     legal procedure.
                        92. Thus, the ECHR has constructed a vast case law on the right to a
                     fair trial (Article 6 of the European Convention on Human Rights),
                     wherein it has pointed out, in its consistent jurisprudence, that that right
                     encompasses the respect for the principle of equality of arms (égalité des
                     armes), that is, the principle of the procedural equality between the con-
                     tending parties (e.g., case Delcourt v. Belgium, 1970, para. 28 ; case Mon‑
                     nel and Morris v. United Kingdom, 1987, para. 62). In the case Dombo
                     Beheer v. Netherlands (1993), the ECHR observed that the principle of
                     equality of arms implies the reasonable opportunity to be afforded to the
                     contending parties to present, each one, his case and evidence, without
                     being in disadvantage vis-à-vis his opposing party (para. 33). This includes
                     cross-examination of witnesses, as pointed out by the ECHR in the Rowe
                     and Davis v. United Kingdom case (2000, paras. 62 and 65).

                       93. The ECHR has further stressed, in its consistent jurisprudence, the
                     “principle of adversarial procedure”, allowing each party “to have know

                        82 Cf. W. P. Gormley, The Procedural Status of the Individual before International and

                     Supranational Tribunals, The Hague, Nijhoff, 1966, p. 40, note 25 ; and, generally, J. Beauté,
                     Le droit de pétition dans les territoires sous tutelle, op. cit. supra note 49, pp. 48‑136.

                     78

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                     ledge of and comment on all evidence adduced or observations filed with
                     a view to influencing the court’s decision” (cases Mantovanelli v. France,
                     1997, para. 31 ; Lobo Machado v. Portugal, 1996, para. 31 ; Vermeulen
                     v. Belgium, 1996, para. 33 ; Nideröst-Huber v. Switzerland, 1997,
                     para. 24) 83. In the cases of Borgers v. Belgium (1991, para. 24) and of
                     Ekbatani v. Sweden (1988, paras. 28-30 and 33), the ECHR characterized
                     the principle of “equality of arms” (égalité des armes) as one of the ele-
                     ments of the wider notion of “fair trial” (procès équitable).
                        94. In the case of Ruiz-Mateos v. Spain (1993), the ECHR observed
                     that Article 6 (1) of the European Convention on Human Rights encom-
                     passes the principle of “equality of arms” as well as the “fundamental
                     right” to the “caractère contradictoire de la procédure”, which implies, for
                     its part, “la faculté de prendre connaissance des observations ou pièces
                     produites par l’autre ainsi que de les discuter” (para. 63). And, in the case
                     Hentrich v. France (1994), the ECHR deemed it fit to ponder that
                          “one of the requirements of a ‘fair trial’ is ‘equality of arms’, which
                          implies that each party must be afforded a reasonable opportunity to
                          present his case under conditions that do not place him at a substan-
                          tial disadvantage vis-à-vis his opponent” (para. 56).

                        95. In fact, looking back in time, already in the late sixties it was
                     rightly pointed out, in respect of the interrelatedness of the right to a fair
                     trial and the principle of equality of arms, that
                          “Article 6, paragraph 1, of the European Convention on Human
                          Rights guarantees a fair trial, which provides for the principle of
                          equality of arms (. . .) Fair trial and equality of arms demand the
                          parties to a legal dispute to be able to obtain the decision of a court
                          under the same conditions).” 84

                     This understanding has been sustained, not surprisingly, in both the
                     European and the inter‑American systems of human rights protection.

                       96. In Latin America, for its part, the IACtHR has held, in the case of
                     Hilaire, Constantine and Benjamin and Others v. Trinidad and Tobago
                     (2002), that, in order to secure the right to a fair trial, proceedings ought
                     to ensure “the entitlement to a right or the exercise thereof”, and the ade-

                         83 Cf. also, on the principle of equality of arms, ECHR, case Yvon v. France, 2003,

                      paras. 29-37.
                         84 W. P. Pahr, “Die Staatenimmunität und Artikel 6 Absatz 1 der Europäischen

                     Menschenrechtkonvention”, in Mélanges offerts à P. Modinos — Problèmes des droits
                      de l’homme et de l’unification européenne, Paris, Pedone, 1968, p. 231. [Art. 6 Abs. 1 der
                     Europäischen Menschenrechtskonvention garantiert ein fair trial, das dem Grundsatz
                     der Waffengleichheit Rechnung trägt. (. . .) Fair trial und Waffengleichheit gebieten, dass
                     die Parteien eines Rechtsstreites unter gleichen Voraussetzungen die Entscheidung eines
                     Gerichtes erlangen können.]

                     79

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                     86 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     quate protection of those, whose rights are pending of judicial consider-
                     ation (para. 147). In the case Loayza Tamayo v. Peru (1997), the IACtHR
                     warned that a judicial process wherein a party is not able to contradict
                     the evidence produced against her does not meet the standards of a fair
                     trial (juicio justo) (para. 62). In the case of Juan Humberto Sánchez
                     v. Honduras (2003), the IACtHR again held that the right to a fair trial
                     (Article 8 of the American Convention on Human Rights) implies the
                     observance of all requirements to secure the “adequate defense” of all
                     those, whose rights and obligations are under “judicial consideration”
                     (para. 124).

                        97. The IACtHR has stressed that the due process of law is “intimately
                     linked to the right of access to justice” (cases Cantoral Benavides v. Peru,
                     2000, para. 112, and Castillo Petruzzi and Others v. Peru, 1999, para. 128).
                     The IACtHR has further warned that a party (the respondent State) can-
                     not rest on, or take advantage of, the difficulties or impossibility of the
                     other party (the individual complainant) to produce evidence which not
                     seldom cannot be obtained without its procedural co-operation (case
                     Maritza Urrutia v. Guatemala, 2003, para. 128).
                        98. And, in its advisory opinion No. 16, on The Right to Information
                     on Consular Assistance in the Framework of the Guarantees of the Due
                     Process of Law (1999), the IACtHR pondered that
                          “(. . .) for the ‘due process of law’ to exist, it is necessary that a justi‑
                          ciable be able to exercise his rights and defend his interests effectively
                          and in full procedural equality with other justiciables. In effect, it is
                          proper to recall that the judicial process is a means to secure, insofar
                          as possible, an equitable solution of a difference.” (Para. 117.)
                          “(. . .) para que exista ‘debido proceso legal’ es preciso que un justi-
                          ciable pueda hacer valer sus derechos y defender sus intereses en forma
                          efectiva y en condiciones de igualdad procesal con otros justiciables.
                          Al efecto, es útil recordar que el proceso es un medio para asegurar,
                          en la mayor medida posible, la solución justa de una controversia.”
                       99. It is firmly established, in contemporary international procedural law,
                     that contending parties are to be afforded the same opportunity to present
                     their case and to take cognizance of, and to comment upon, the arguments
                     advanced and the evidence adduced by each other, in the course of the pro-
                     ceedings. This has been carefully observed and applied by international
                     human rights tribunals, such as the European 85 and the Inter-American 86
                     Courts of Human Rights, in their well‑sedimented case law on the matter at

                        85 For doctrinal considerations, cf., e.g., P. van Dijk, F. van Hoof, A. van Rijn and

                     L. Zwaak (eds.), Theory and Practice of the European Convention on Human Rights,
                     4th ed., Antwerp/Oxford, Intersentia, 2006, pp. 580‑589.
                        86 For doctrinal considerations, cf., e.g., A. A. Cançado Trindade, El Ejercicio de

                     la Función Judicial Internacional — Memorias de la Corte Interamericana de Derechos
                     Humanos, Belo Horizonte/Brazil, Edit. Del Rey, 2011, pp. 101‑105 and 133-138.

                     80

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                     87 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     issue. Likewise, the principe du contradictoire has marked its presence in the
                     most distinct contemporary international jurisdictions 87.
                        100. Notwithstanding the advances achieved in international procedural
                     law, it is clear that the review procedure, considered by this Court in the pres-
                     ent Advisory Opinion, does not abide by the principle of equality of arms,
                     nor does it meet the aforementioned standards. That review procedure has
                     not accompanied the considerable advances experienced in international legal
                     procedures throughout the last decades. It fails to do justice to the original
                     complainants 88, who have — so anachronistically — to rely upon the oppos-
                     ing party to submit his or her arguments to the consideration of this Court.
                     It regrettably has not at all accompanied the advances of international justice
                     in our times. It is high time that it does, perhaps — and hopefully — as from
                     the present Advisory Opinion of this Court on Judgment No. 2867 of the
                     Administrative Tribunal of the International Labour Organization upon a Com‑
                     plaint Filed against the International Fund for Agricultural Development.

                           XIV. The Need to Secure the Locus Standi in Judicio
                     and the Jus Standi to Individuals before International Tribunals,
                                             Including the ICJ

                        101. In order to secure the equality of the parties in the international
                     legal process, as a component — as already indicated — of the right of
                     access to justice lato sensu (supra), there is need to provide for the jus
                     standi and the locus standi in judicio before this Court, among other inter-
                     national tribunals. Unfortunately, neither of them is granted to individu-
                     als before the ICJ, not even in review procedures such as the present one.
                     There are thus, in fact, two regrettable and longstanding sources of proce‑
                     dural inequality before this Court in review procedures such as the one in
                     the cas d’espèce. First, the lack of jus standi, ensuing from Article XII (1)
                     of the Annex to the ILOAT Statute, whereby only the Executive Board of
                     the international organization concerned (the employer) can lodge a
                     request for an advisory opinion with the ICJ. The original individual
                     complainant, the staff member of the organization (the employee), cannot
                     do so ; he or she is deprived of any jus standi to do so.

                        102. Secondly, and in addition, the lack of locus standi in judicio, ensuing
                     from the ICJ Statute itself, renders unfeasible the participation of individu-

                         87 For a survey, cf., e.g., [Various Authors], Le principe du contradictoire devant les

                     juridictions internationales (Journée d’études de Paris de 2003, eds. H. Ruiz Fabri and
                     J.-M. Sorel), Paris, Pedone, 2004, pp. 1‑195.
                         88 It is thus not surprising to find the suggestion that, the creation of a new appel-

                     late instance, or a regular appellate court, would appear more appropriate and satisfac-
                     tory than to maintain the existing review procedure ; cf., e.g., R. Ostrihansky, “Advisory
                     Opinions of the International Court of Justice as Reviews of Judgments of International
                     Administrative Tribunals”, 17 Polish Yearbook of International Law (1988), pp. 117
                     and 120.

                     81

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                     88 	 judgment no. 2867 of the ilo (sep. op. cançado trindade)

                     als in the procedures before the Court, even in a hybrid procedure such as
                     the review one (advisory procedures disguising a contentious case of inter-
                     national administrative law), wherein the most interested “party”, who
                     claims the violation of a right (the employee), has to rely on the opposing
                     party (the employer), to present his or her submissions to the consideration
                     of the Court. The procedural inequality to the detriment of the employee
                     thus covers the lack of jus standi as well as locus standi in judicio.
                        103. The perfectly avoidable position results from an outdated dogma,
                     imposed upon this Court since its historical origins, whereby individuals
                     cannot appear before the Court itself because they are not subjects of
                     international law. Only the international organization concerned (the
                     employer) has jus standi and locus standi in judicio before the ICJ, the
                     individual (the employee) depends on the decision (as to resorting to this
                     Court) of the employer, and, if the matter is submitted to the Court, he or
                     she cannot appear before it. This is certainly a double procedural inequal-
                     ity before the World Court.

                        104. For decades the ICJ has been considering an alternative of resort-
                     ing to a procedural acrobatie in order to bypass or circumvent this situa-
                     tion, so detrimental to the individual as the subject of international law.
                     The alternative it has considered is not to give the requested Advisory
                     Opinion : this is not a solution, as the Court is bound to clarify — as it
                     does in the present Advisory Opinion — the subject brought before it, in
                     the exercise of its functions. The procedural acrobatie is not to hold oral
                     hearings : this is not a solution either, as the Court thereby ends up depriv-
                     ing itself to instruct better the dossier of the case, by imposing such limit
                     to the freedom of expression of the “parties” concerned.

                        105. In so far as the review procedure is concerned, the solution
                     adopted by the Statute of the PCIJ, which has been affirmed by the ICJ
                     Statute, appears even more problematic, since — as already indicated
                     (cf. supra) — as early as in the first half of the twentieth century there
                     were already experiments of international law which had granted a proce-
                     dural capacity to individuals. Such evolution was triggered in the era of
                     the United Nations, with the adoption of a system of individual petition
                     under the auspices of some human rights treaties of universal character 89.
                     This procedural capacity of the individual has a direct incidence on the
                     individual’s access to justice at international level 90.
                        106. It is thus necessary, still in our days, to have a thorough under-
                     standing of the nature and scope of the individual right to petition under

                        89 A. A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of Inter-

                     national Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI
                     (1987), pp. 21‑412.
                        90 A. A. Cançado Trindade, The Access of Individuals to International Justice, op. cit.

                     supra note 35, pp. 50‑124 and 179‑212.

                     82

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                     the auspices of human rights treaties 91. The experiments during the first
                     half of the twentieth century paved the way to the development, within
                     the United Nations and under the auspices of human rights treaties at the
                     global and regional levels (in addition to extra-conventional mechanisms),
                     of contemporary mechanisms of petitions or communications relating to
                     violations of human rights. Thus, in this context, the individual recovered
                     its presence for the vindication of his rights at international level.

                        107. The appreciation of the individual right of petition as a means of
                     international implementation of human rights has to take into account
                     the basic point of the legitimatio ad causam of the individual petitioners
                     and the conditions of the use and admissibility of their petitions. The
                     solutions given by human rights treaties and instruments to the question
                     of the jus standi of the individual applicant seem to be related to the
                     nature of the proceedings at issue. But differences in the nature of the
                     respective proceedings have not hindered, nor stood in the way of, the
                     development of a converging jurisprudence of distinct international
                     human rights tribunals and supervisory organs striving to secure a more
                     efficient protection of the alleged victims.

                                              XV. Concluding Observations

                        108. Such reassuring development should be kept in mind, to reassess
                     and overcome, once and for all, the pitfalls of the present review proce-
                     dure. Its intrinsic and unjustified imbalance in the proceedings — as dis-
                     closed in the cas d’espèce — is a remnant of the past, revealing a lack of
                     equality of arms. Expressions of discontent have, throughout many years,
                     been uttered by some members of succeeding generations of judges of this
                     Court. Given the unnecessary persistence of the problem, I feel obliged to
                     take my own criticism even further, as for many years I have consistently
                     attached the utmost importance to such matter (also in another interna-
                     tional jurisdiction, wherein positive results have been achieved, that is,
                     results pro persona humana) 92.
                        91 At the historical beginning of the exercise of the right to individual petition, such

                     right, even if motivated by the search for individual reparation, also contributed to secure
                     the respect for the objective obligations that were binding upon States parties. Only subse-
                     quently the right of petition (and no longer the right to petition) came into being within
                     international organizations. The distinction between pétition plainte (based on the violation
                     of a private individual right and the search for reparation before the relevant authorities)
                     and pétition voeu (concerning the general interests of a group and the search of public
                     measures by the authorities) was developed.
                        92 A. A. Cançado Trindade, “Vers la consolidation de la capacité juridique internatio-

                     nale des pétitionnaires dans le système interaméricain des droits de la personne”, 14 Revue
                     québécoise de droit international (2001), pp. 207‑239 ; A. A. Cançado Trindade, “El Nuevo
                     Reglamento de la Corte Interamericana de Derechos Humanos (2000) : La Emancipación
                     del Ser Humano como Sujeto del Derecho Internacional”, 28 Curso de Derecho Interna‑
                     cional Organizado por el Comité Jurídico Interamericano de la OEA (2001), pp. 33‑92.

                     83

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                        109. This unnecessary problem, ensuing from outdated dogmatisms
                     (identified in the present separate opinion), touches on other aspects
                     which are very dear to me, namely : (a) the emergence and consolidation
                     of individuals as subjects of international law ; (b) the imperative of
                     securing the procedural equality of the parties in the course of the pro-
                     ceedings (as a component of the right of access to justice lato sensu) ; and
                     (c) the need to secure the locus standi in judicio and the jus standi to indi-
                     viduals before international tribunals, including the ICJ. Keeping this in
                     mind, — and dogmatisms apart, — it can hardly be denied that there
                     should have been a hearing, with the presence not only of the legal repre-
                     sentative of the IFAD but also of Ms Ana Teresa Saez García.

                        110. This would have better instructed the dossier, and would have
                     avoided the problems that occurred, which prompted two interventions
                     of the Court’s Registry, to secure the proper administration of justice
                     (cf. para. 49, supra). This would, moreover, have been in conformity with
                     the principle of equality of arms, and ultimately of the general principle
                     of la bonne administration de la justice. This would, furthermore, have at
                     last overcome a dogma entirely outdated, which no longer finds any jus-
                     tification to be followed in our days. In an epoch, such as ours, of the rule
                     of law at national and international levels, it is high time to abide firmly by
                     such general principles of law in any procedures and circumstances.

                        111. In the present Advisory Opinion the Court has fortunately, at the
                     end, reached the right decision. But this is not the first time in this Court
                     that I stress the need of holding a public hearing. In my long dissenting
                     opinion in the Court’s Order of 6 July 2010 in the case concerning the
                     Jurisdictional Immunities of the State (Germany v. Italy), whereby the
                     Court dismissed the counter-claim (which purported to link State immu-
                     nities to the factual background of war reparations claims), I allowed
                     myself to warn that :

                            “In summarily discarding the Italian counter-claim as ‘inadmissi-
                          ble as such’, the Court should have at least instructed properly
                          the dossier of the cas d’espèce, by holding, prior to the decision it has
                          just taken, public hearings to obtain further clarifications from the
                          contending Parties. The same treatment is to be rigorously dispensed
                          to the original claim and the counter-claim as a requirement of the
                          sound administration of justice (la bonne administration de la justice).
                          They are, both, autonomous, and should be treated on the same foot-
                          ing, with a strict observance of the principe du contradictoire. Only in
                          this way the procedural equality of the parties (Applicant and Respond-
                          ent, rendered Respondent and Applicant by the counter-claim) is
                          secured. (. . .)
                            The Order that the Court has just adopted has made abstraction
                          of the configuration of the notion of “continuing situation” in inter-

                     84

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                          national legal thinking — in both international litigation and case
                          law, and in international legal conceptualization at normative level.
                          Furthermore, it has not addressed the position of the true bearers
                          (titulaires) of the originally violated rights, oblivious of the pitfalls
                          of State voluntarism. Its emphasis fell solely on waiver of claims,
                          again oblivious of the incidence of jus cogens, rendering certain waiv-
                          ers of claims devoid of any juridical effects (. . .).

                             The Court has discarded the Italian counter-claim on the basis of
                          succinct considerations in the two brief paragraphs 28 and 29, of the
                          present Order. Paragraph 29 is a petitio principii, simply begging the
                          question. The ratio decidendi lies in paragraph 28 of the Order (. . .).

                             This is, in fact, another petitio principii (. . .) The matter summarily
                          disposed of, in the present Order, is not so clear and self-evident as
                          the Court’s majority seems to believe. On the basis of the considera-
                          tions and reflections developed in the present dissenting opinion, I am
                          led to conclude that the Court’s majority position does not stand, and
                          finds no basis, neither as to the facts nor as to the law, to rely upon.
                          It is nothing but a petitio principii.” (I.C.J. Reports 2010 (I), pp. 389-
                          391, paras. 154 and 156-158.)
                        112. There are lessons that can be extracted from the experience with
                     the present Advisory Opinion of this Court, which, at least, has had a
                     happy end 93, unlike the Order of 6 July 2010 in the aforementioned case.
                     The subject of a wider participation in advisory proceedings before this
                     Court has, over the history of the Hague Court — both the PCIJ and the
                     ICJ, — attracted attention from time to time. Much has been written on
                     it, and we live now a historical moment in which I deem it fit to single it
                     out for further reflection, as I have always attached considerable impor-
                     tance to the issue of access to international justice, of all subjects of inter-
                     national law.

                        113. The advisory jurisdiction of the ICJ seems to me to offer an ade-
                     quate framework for the consideration of possible advances in this
                     domain. The high significance of this topic is that it appears to go beyond
                     a strictly inter-State outlook, in the line of recent developments in several
                     domains of contemporary international law. This, in my view, cannot
                     pass unnoticed, or unexplored, in a World Court such as ours. There
                     have indeed been glimpses of enlightenment when our Court itself has
                     taken cognizance of the issue.
                        114. The old PCIJ, for example — as I pointed out in this separate
                     opinion — was attentive to it, in its advisory proceedings concerning the
                       93 After all, one should not lose sight of the fact that international organizations

                     operate day-to-day, due to a large extent to the invisible work of their staff members,
                     human beings of body and soul, and not simply “human resources”, as their post-modern
                     administrations tend to label them.

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                     Free City of Danzig, in the late twenties and early thirties of last century.
                     Forty years later, in the advisory proceedings on Namibia — which led to
                     the adoption of its célèbre Advisory Opinion of 21 June 1971
                     (I.C.J. Reports 1971, p. 16) — the ICJ considered the possibility of receiv-
                     ing amicus curiae briefs (including from individuals), but preferred not to
                     innovate. Yet, well before this, the PCIJ had taken innovative steps and
                     indeed shaped its advisory proceedings largely through practice itself.

                        115. It appears to me that we ought to be attentive to the densely
                     changing world wherein we live, and the adjustments it appears to require
                     from our interna corporis and our practice 94. To count on the public par-
                     ticipation of all subjects of international law — including individuals — is
                     to be faithful to the thinking of the “founding fathers” of our discipline,
                     as indicated in the present separate opinion. As I also deemed it fit to
                     recall herein, many of the matters — including contentious cases —
                     brought into the cognizance of this Court have pertained ultimately to
                     the concrete situations in which the individuals concerned found them-
                     selves (paras. 78-79).
                        116. In the light of such cases at least, one can surely argue that the
                     participation of the individuals concerned in legal proceedings contrib-
                     utes to a better instruction of the process, by giving the Court the oppor-
                     tunity to have a better knowledge of the parties’ perception of the facts
                     and their arguments as to the law. Furthermore, it preserves the principe
                     du contradictoire, essential in the search for truth and the realization of
                     justice, guaranteeing the equality of arms in the whole procedure before
                     the Court, essential to la bonne administration de la justice.

                        117. This is logical, since, to the international legal personality of the
                     parties ought to correspond their full juridical capacity to vindicate their
                     rights before the Court. In addition, their public participation in the pro-
                     ceedings before the Court recognizes the right of free expression of the
                     contending parties themselves, in affording them the opportunity to act as
                     true subjects of law. This provides those who feel victimized and are in
                     search of justice a form of reparation, in directly contributing — with
                     their participation — to the patient reconstitution and determination of
                     the facts by the Court itself.

                        94 Thus, in the advisory proceedings on the Legal Consequences of the Construction of

                     a Wall in the Occupied Palestinian Territory, Palestine was among those which appeared
                     in public sittings before the Court (I.C.J. Reports 2004 (I), pp. 141 and 143, paras. 4 and
                     12). And subsequently, in the advisory proceedings on the Accordance with International
                     Law of the Unilateral Declaration of Independence in Respect of Kosovo, before the Court
                     pronounced on the matter (Advisory Opinion, I.C.J. Reports 2010 (II), p. 403) Kosovo
                     participated in the public sittings (of 1-11 December 2009) before the Court.

                     86

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                        118. All these considerations render the subject-matter at issue —
                     which in my perception has assumed a central position in the proceedings
                     which led to the present Advisory Opinion — in my view a suitable one
                     for further careful consideration from now onwards. Legal instruments,
                     whichever their hierarchy, are a product of their time, and I am sure that
                     we all agree as to the need to work for the realization of justice at the
                     level of the challenges of our time, so as to respond properly to them.
                     And as this Court is to perform its functions at the height of the chal-
                     lenges of our times, as the International Court of Justice, it is bound at
                     last to acknowledge that individuals are subjects of international law, of
                     the jus gentium of our times.

                                           (Signed) Antônio Augusto Cançado Trindade.

                     87

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