COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AVENA ET AUTRES
RESSORTISSANTS MEXICAINS

(MEXIQUE c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 5 FEVRIER 2003

2003

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS

(MEXICO v. UNITED STATES OF AMERICA)

ORDER OF 5 FEBRUARY 2003
Mode officiel de citation:

Avena et autres ressortissants mexicains
(Mexique c. Etats-Unis d'Amérique), ordonnance
du 5 février 2003, C.I.J. Recueil 2003, p. 96

Official citation:

Avena and Other Mexican Nationals
(Mexico v. United States of America), Order
of 5 February 2003, I C.J. Reports 2003, p. 96

N° de vente:

Sales number

ISSN 0074-4441
ISBN 92-1-070971-3

864

5 FEVRIER 2003

ORDONNANCE

AVENA ET AUTRES RESSORTISSANTS MEXICAINS
(MEXIQUE c. ETATS-UNIS D’AMERIQUE)

AVENA AND OTHER MEXICAN NATIONALS
(MEXICO v. UNITED STATES OF AMERICA)

5 FEBRUARY 2003

ORDER
96

INTERNATIONAL COURT OF JUSTICE

YEAR 2003 2003
5 February
General List
5 February 2003 No. 128

CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS

(MEXICO v. UNITED STATES OF AMERICA)

ORDER

Present: President GUILLAUME; Vice-President Sui; Judges ODa,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESH-
CHETIN, HIGGINS, PARRA-ARANGUREN, K90IJMANS, REZEK, AL-
KHASAWNEH, BUERGENTHAL, ELARABY; Registrar COUVREUR.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court, and to
Articles 44 and 45, paragraph 1, of the Rules of Court,

Having regard to the Application filed in the Registry of the Court on
9 January 2003, whereby the United Mexican States instituted proceed-
ings against the United States of America for “violations of the Vienna
Convention on Consular Relations” of 24 April 1963 allegedly com-
mitted by the United States of America,

Having regard to the request for the indication of provisional measures
submitted by the United Mexican States on 9 January 2003,

Having regard to the Order of 5 February 2003 whereby the Court
indicated certain provisional measures;

Whereas in that Order the Court stated that “it is clearly in the interest

4
AVENA AND OTHERS (ORDER 5 II 03) 97

of both Parties that their respective rights and obligations be determined
definitively as early as possible” and that “it is therefore appropriate that
the Court, with the co-operation of the Parties, erisure that a final judg-
ment be reached with all possible expedition” ;

Whereas, in order to ascertain the views of the Parties, the President of
the Court met their representatives on 5 February 2003;

Taking account of the views of the Parties,

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

6 June 2003 for the Memorial of the United Mexican States;
6 October 2003 for the Counter-Memorial of the United States of
America; and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fifth day of February, two thousand
and three, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of the United
Mexican States and the Government of the United States of America,
respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.


DISSENTING OPINION OF VICE-PRESIDENT BADAWI
AND JUDGES BASDEVANT, HSU MO, ARMAND-UGON
-AND MORENO QUINTANA

{ Translation]

.We regret that we are unable to concur in the Opinion of the
Court and we believe it necessary to state the main grounds upon
which we dissent.

+
* *

The Court has usefully defined the meaning which it attaches
to the question which has been put to it by the General Assembly.

In the first place, it has stated that it understood this question
as having reference to the hearing, by the Committee on South
West Africa, of persons having submitted written petitions. This
clarification is useful, for in the debates in the Committee on
South West Africa and in the Fourth Committee there were those
who discussed what have been called ‘‘oral petitions”’.

We shall place ourselves on the same ground as the Court,
namely, that of the hearing of a person who has previously sub-
mitted a written petition in due form. We shall merely make
one observation in this connection. If it be considered that the
grant of a hearing to one who has submitted a written petition
is not consistent with the Opinion of 1950, the same will be true
a fortiori of permission to submit an oral petition. If, on the other
hand, the hearing of one who has submitted a written petition
is found to be consistent with the Opinion of 1950, that view
will leave open the question whether it is consistent with that
Opinion to permit the submission of an oral petition.

It is further stated in the reasoning of the present Opinion,
though not repeated in the operative part, that, while the question
submitted to the Court in terms refers to the grant of oral hearings
by the Committee on South West Africa, the Court interprets
this question as meaning : whether it is legally open to the General
Assembly to authorize the Committee to grant ora! hearings to
petitioners. We accept this interpretation, which seems to us to
follow from the fact that the Committee having requested the
General Assembly to decide whether or not the oral hearing of
petitioners is admissible before that Committee, the General
Assembly considered it desirable to seek the opinion of the Court.

*
* *

The request for an Opinion submitted to the Court on De-
cember 19th, 1955, in stating the question put to it, refers solely

4T
DISSENTING OPINION (OPINION OF I VI 56) 61

to the compatibility with the Opinion of 1950 of a decision to
grant hearings to petitioners. ‘Is it consistent with the advisory
opinion ... [of 1950] for the Committee on South West Africa ...
to grant oral hearings to petitioners... ?”’ It is thus compatibility
with the Opinion of 1950 which is to be appraised, and nothing
else. The Request for an Opinion, in this respect, contains an
exact statement of the question upon which an Opinion is sought,
as required by Article 65, paragraph 2, of the Statute. One can
understand why the General Assembly should have put the
question on this ground, since it had previously adopted the Opin-
ion of the Court as the basis for its action. In putting the question
in this way, it has submitted a legal question to the Court.

It is therefore in the Opinion of 1950 that the Court must seek
the elements for its reply.

The General Assembly has not asked it to seek them in factual
or legal considerations outside the scope of that Opinion, in
particular in the attitude of the Union of South Africa, nor to take
note of the latter’s refusal to submit to the exercise of supervision
by the United Nations. The Request for an Opinion makes no
allusion either to that attitude or to that refusal. These facts were
subsequent in date to the Opinion of 1950, which was confined to
describing the legal position in the light of then existing factors :
they cannot therefore constitute factors to be considered in ascer-
taining the meaning and scope of that Opinion.

The Resolution setting forth the Request for an Opinion twice
refers to Resolution 749 A (VIII). The first reference, in the preamble,
is designed to serve as an indication of a function assigned to the
Committee on South West Africa; the second, in the operative
clause, has as its purpose the identification of that Committee.
There is nothing there which expressly or impliedly indicates the
General Assembly’s intention to reqüest the Court, which is called
upon to determine the meaning and scope of its Opinion of 1950,
to have regard to all that is stated in Resolution 749 A (VIII),
and particularly to what is said concerning the attitude of the
Union of South Africa, its refusal to co-operate in the exercise of
supervision and the sentiments of the General Assembly in this
regard. The facts thus set out and the regret expressed with regard
to them in Resolution 749 A (VIII) are not repeated in the Request
for an Opinion : it is not there stated that the Court should itself
take note of these facts, still less that it should evaluate them for
the purpose of arriving at a conclusion as to the compatibility of
the grant of hearings to petitioners with its Opinion of 1950.

It is not, moreover, clear how a resolution adopted by the General
Assembly in 1953 could, by referring to facts subsequent to the
Opinion of 1950, enlighten the Court as to the meaning and scope
of that Opinion which is precisely what is now the issue.
DISSENTING OPINION (OPINION OF I VI 56) 62

It may furthermore be observed that it is only if it should be
found that a proper interpretation of the Opinion of 1950 leads to
the conclusion that the hearing of petitioners is not consistent with
that Opinion, that the question may arise whether the refusal of
the Union of South Africa to submit to the exercise of supervision
constitutes a new element such as nevertheless to justify such a
hearing. That would be neither to have regard to the meaning of
the Opinion of 1950 nor to ascertain whether the hearing of
petitioners is or is not consistent with that Opinion, which is a
purely legal question and, as such, one suitable for submission to
the Court. It would be to enquire whether that refusal constitutes
a ground justifying the supervising authority in departing in this
respect from observance of the Opinion of 1950. Such a question
might be asked, but the considerations upon which a reply to it
might be based would go beyond the scope of legal considerations
and would involve political elements the appraisal of which is not
within the domain of the Court, and such a question has not been
put to it.

To confine attention to the question which has been put and to
the terms in which it has been stated, where that statement is an
exact one, is the normal course to adopt and one which accords
with the respective réles of the General Assembly, which has put
the question, and of the Court, which is called upon to give its
reply. That was the course adopted by the Court in the case relating
to Conditions of Admission of a State to Membership in the United
Nations (I.C.J. Reports 1947-1948, p. 61). We would gladly repeat
to-day what the Court then said, namely, that it “is not concerned
with the motives which may have inspired [the] request”.

*
* *

Since the reply to the question now put to the Court is to be
sought in the Opinion of 1950, it is necessary to seek, in the
statements made in that Opinion—in anything which may shed
light upon the ideas inspiring it and in the references which it
contains—the elements which will determine that reply.

In answer to the first question then put to the Court, the
Opinion of 1950 stated “that South West Africa is a territory
under the international Mandate assumed by the Union of South
Africa on December 17th, 1920”. The operative clause of the
Opinion there found that the previously existing situation was
maintained.

Having been questioned, in the second place, as to the continued
existence ard as to the nature of the international obligations
upon the Union of South Africa under the Mandate for South
West Africa, the Court, in order to reply to this question, made
use, both in quotations on which it relied and in the considerations
which it directly stated, of expressions such as: ‘continue to

43
DISSENTING OPINION (OPINION OF I VI 56) 63

administer the mandated territories in accordance with their
respective Mandates’, “will continue to administer the Territory
scrupulously in accordance with the obligations of the Mandate’,
“to maintain the status quo and to continue to administer the
Territory in the spirit of the existing Mandate”, ‘“‘recognition by
the Union Government of the continuance of its obligations under
the Mandate’. Passing then to the mandatory Power's obligation
to submit to supervision, the Opinion, in its reasoning, again
adopted this idea of continuity and of maintenance of the status
quo when it said: “It cannot be admitted that the obligation
to submit to supervision has disappeared’’, as the result of the
disappearance of the Council of the League of Nations, which
together with other considerations upon which there is no need
to dwell here, led the Court to “‘the conclusion that the General
Assembly of the United Nations is legally qualified to exercise
the supervisory functions previously exercised by the League of
Nations ... and that the Union of South Africa 1s under an obli-
gation to submit” to such supervision: again the Court speaks
of “supervisory functions exercised by the League” and “‘taken
over by the United Nations”.

This notion of continuity, of maintenance of the status quo, is
found again in the Opinion when it sees the right of petition
admitted by the Council of the League of Nations as a “right
which the inhabitants of South West Africa had ... acquired”
and one which the Opinion regarded as “maintained” by Article 80
of the Charter.

The same idea appears again, still more clearly, when the
Opinion, in view of the fact of the substitution of the United
Nations for the League of Nations in respect of the exercise of
supervision, draws this consequence: “The degree of supervision
to be exercised by the General Assembly should not therefore
exceed that which applied under the Mandates System, and should
conform as far as possible to the procedure followed in this respect
by the Council of the League of Nations’. This wording corre-
sponds exactly to the proposition recalled above, to the effect
that “the supervisory functions exercised by the League would
be taken over by the United Nations’.

In harmony with these considerations set out in its reasoning,
the Opinion states, in its operative clause, that “the Union of
South Africa continues to have” its obligations as a mandatory
Power, both in respect of substantive obligations and in respect
of the exercise of supervision.

There are thus many statements in the Opinion which express
the idea of the maintenance of the former régime in respect of the
position of the Territory of South West Africa, the international
obligations upon the Union of South Africa as a mandatory Power
and the exercise of supervision.

44
DISSENTING OPINION (OPINION OF I VI 56) 64

Is this observation confirmed by the spirit of the Opinion of
1950 ?

*
* +

The spirit of the Opinion, which may serve as a guide to its
interpretation and therefore to the reply to be given to the question
relating to compatibility with that Opinion which has now been
submitted to the Court, may be found from a consideration of
its purpose and of the circumstances in which it was requested
and given.

The purpose of the Opinion of 1950 was to reply to the questions
then put to the Court by the General Assembly. These questions
related to the status of the Territory of South West Africa and to
the obligations of the Union of South Africa. It was necessary to
determine with regard to each point whether the former position
was maintained. The Court's reply was in the affirmative.

The General Assembly had not requested the Court to determine
and to say whether the General Assembly had a part to play in this
connection, nor to what extent and in what way such a réle was
to be performed. The Court was faced with this question only
incidentally, because recognition of the continuance of the Mandate
and of the corresponding obligations on the Union of South Africa
might encounter objections based on the disappearance of the
supervisory organ, the Council of the League of Nations. The Court
then pointed out the importance of ‘‘the administration of mandated
territories” being “‘subject to international supervision’’, but it
did not then seek to determine what the powers of the super-
vising authority should be. It simply sought to ascertain whether,
after the disappearance of the League of Nations, there still existed
an international authority qualified to exercise this function of
supervision. It found it in the General Assembly of the United
Nations, and having reached this solution on the basis of the pro-
visions of the Charter, it went no farther: it was unnecessary for
it to define the powers with which the Council of the League of
Nations had been invested or to have recourse to the notion of a
transfer to the General Assembly of the powers of the Council of
the League of Nations. The provisions of the Charter were sufficient
for the Court to give expression to the main idea to which it held,
namely, the need for the maintenance of the supervisory function,
that is to say, the idea of continuity.

The position, at the time when the Opinion of 1950 was requested
and given, was that resulting from the disappearance of the League
of Nations and the termination of the Covenant under which the
Mandate for South West Africa had been entrusted to the Union of
South Africa. This situation raised the question whether the Mandate
continued to exist and what were the obligations of the Union of
South Africa in this connection. It was to this question that the

45
DISSENTING OPINION (OPINION OF I VI 56) 65

Court was called upon to reply, and the main feature of its reply
was that there had been no change but that there was continuity.

An important element of the situation then existing was referred
to on a number of occasions by the Court in the reasoning of its
Opinion : that is, the willingness expressed by the Union of South
Africa to regard itself as continuing to exercise its Mandate, to
continue to administer.the Territory in accordance with the pro-
visions of the Mandate and to continue to render reports to the
United Nations.

The spirit of the Opinion thus fully confirms what is expressed by
its letter : the continuity of the Mandate and of the international
obligations of the Union of South Africa which resuit therefrom.

*
* *

What is the meaning of this continuity, of this maintenance of
the status guo ? Does it, so far as the point at present under consider-
ation is concerned, refer to the supervision which was in fact applied
during the existence of the League of Nations or does it refer to the
powers possessed by the Council of the League of Nations in the
matter of supervision, whether any such powers had been actually
exercised by the Council or not ?

In dealing with the question to which it gave its reply in 1950, the
Court was not required to express an opinion as to the powers of the
Council of the League of Nations. The Opinion of 1950 nowhere
alludes to these powers or seeks to determine what they were or
what were their limits ; nor is it concerned with the question whether
or not they were exercised by the Council.

A consideration of the powers with which the Council was invested
would have been necessary if the Court had accepted the idea of the
United Nations’ succession to the League of Nations, of the transfer
cf powers from one organization to the other. The Court did not
overlook this particular aspect of the problem.

Resolution 24 (1) adopted by the General Assembly on
February 12th, 1946, had made provision with regard to the method
to be adopted for the examination of any request “that the United
Nations should assume the exercise of functions or powers entrusted
to the League of Nations by treaties, international conventions,
agreements and other instruments having a political character”.
Here appeared the idea of a possible transfer of powers entrusted
to the League of Nations. But the course indicated by that
Resolution was not followed. The Union of South Africa has not
submitted to the General Assembly any request that the latter
should assume the “powers entrusted” to the Council of the
League of Nations. The Opinion of 1950 did not therefore place
itself on the same ground as Resolution 24 (I). On the contrary, it
stated in its reasoning that ‘‘the supervisory functions of ihe League
with regard to mandated territories not placed under the new
Trusteeship System were neither expressly transferred to the United

46
DISSENTING OPINION (OPINION OF I VI 56) 66

Nations nor expressly assumed by that organization”. The Opinion
does not base itself on the idea of succession, on the idea of the
transfer of powers.

The Court, unattracted by the idea of succession, of the transfer of
powers, based itself on the objective elements of the situation—the
importance of international supervision under the Mandates System
as well as the provisions of the Charter of the United Nations. [t was
in these elements that the Court, in its Opinion of 1950, found “‘deci-
sive reasons” for the view that “the General Assembly. of the United
Nations is legally qualified to exercise the supervisory functions
previously exercised by the League of Nations”.

At no time did the Court base itself on the extent of the powers
which the Council of the League of Nations exercised or could have
exercised. An opportunity was in fact offered to it to embark upon
such a consideration when it referred to the innovation brought
about in 1923 by the institution of the right, of petition. But the
Court did not raise the question whether that had constituted
the exercise of a power belonging to the Council of the League of
Nations or whether it was the result of an express or tacit agreement.
Here, as elsewhere, the Opinion did not seek to determine with what
powers the Council was invested. It limited itself to stating the exist-
ing situation for the purpose of asserting the maintenance of the
right of petition, just as it had referred to that situation in saying
that the General Assembly was qualified to exercise the supervisory
functions “previously exercised by the League of Nations’’-—the
functions previously “exercised” and not those which it was entitled
to exercise or could have exercised.

This reference to the existing situation, to the.exercise of the
function of supervision as it had been exercised during the time
cf the League of Nations, is again enccuntéred when the Opinion—
defining the proper exercise of that same function by the General
Assembly of the United Nations—states, not as a new or isolated
proposition but as a consequence of what had previously been
said with regard to the continuance of the obligations of the
Union of South Africa and the competence of the General Assem-
bly, that “the degree of supervision to be exercised by the General
Assembly should not therefore exceed that which applied under
the Mandates System”. The words are “which applied’’—not
“which might have been applied” or “which was applicable”.
These words refer to the practice which was established, whether
that practice remained within or went beyond the powers conferred
upon the Council. The established practice is the only criterion.

This is, moreover, implicitly confirmed by the remainder of
the sentence, if not by its letter, at least in its spirit. This second
part of the sentence introduces an element of flexibility in the
domain of procedure, when it states that the degree of supervision
“should conform as far as possible to the procedure followed in

47
DISSENTING OPINION (OPINION OF I VI 56) 67

this respect by the Council of the League of Nations”. The General
Assembly is thus invited to conform to the procedure previously
followed, but it is given certain discretionary freedom, as indicated
by the words “‘as far as possible”. This restriction is of value
after the principle has been laid down that the degree of super-
vision should not exceed what it was in the former practice. But
if the idea be accepted as a basis that the General Assembly has
the same powers as the Council of the League of Nations, and if
it be admitted that the latter had the power to modify its proce-
dure in respect of supervision, the General Assembly would ipso
facto have the same power of modifying its procedure : the second
part of the sentence in question would then be pointless, since
it purports to confer on the General Assembly a discretionary
power which, on that interpretation, the Assembly would already
possess. Indeed, by the idea of conformity stated in that sentence,
it would limit the freedom of the General Assembly, a freedom
which on that interpretation should remain unimpaired.

This confirms that the Opinion, when speaking of supervision,
intended to maintain the former practice and not to refer to
powers which might subsequently be held to have belonged to
the Council, although the latter never exercised them. It was a
little late in 1950, and it is still later at the present time, to seek
to list such powers for the purpose of ascertaining those of the
General Assembly.

The maintenance of the former régime, that is the dominant
idea in the determination by the Opinion of 1950 of the status
of the Territory of South West Africa and of the obligations of
the Union of South Africa, particularly of that obligation which
relates to the point at present under consideration : the obligation
to submit to the exercise of supervision.

It follows from the maintenance of the former régime that the
functions of the General Assembly, in its capacity as supervising
organ, are limited to those which the Council of the League of
Nations in fact exercised before its disappearance. The General
Assembly cannot introduce any method of supervision which the
Council did not in fact establish, even if it could have done so,
in accordance with the terms of the Covenant and of the Mandate.
Any such new method would exceed “the degree of supervision
which applied under the Mandates System”.

This stabilization of the former régime may be explained by
the fact that the Court was unable to find any decision that it
should be modified at the time of the disappearance of the League
of Nations. That no such decision was taken may be fully explained
by the expectation that the mandatory States would conclude
Trusteeship Agreements, an expectation to which the Court
referred in its Opinion. At the time when it gave that
Opinion, the Court did not regard this expectation as a forlorn
one, since it considered it appropriate to repeat that ‘‘the normal

48
DISSENTING OPINION (OPINION OF I VI 56) 68

way of modifying the international status of the Territory would
be to place it under the Trusteeship System”.

*
a *

Having thus come to the conclusion that the criterion of com-
patibility with the Opinion of 1950 involves ‘reference to the
former practice, it is necessary to determine the position in this
respect with regard to the hearing of petitioners.

The hearing of petitioners is not referred to in the Opinion of
1950, which had to determine what were the obligations of the
Union of South Africa. The Opinion referred to the obligation to
submit to the exercise of supervision: it did not refér to the
hearing of petitioners, nor, consequently, to any obligation to
accept such hearings. This may give rise to a presumption that
such hearings by the Committee on South West Africa would
not be consistent with the Opinion of 1950. It may, however,
be thought that such a presumption should be submitted to closer
consideration.

The Opinion of 1950 having, as has been said, found that the
Mandates System continued to be applicable to South West Africa
and that the obligations of a mandatory Power, including the
obligation to submit to the exercise of supervision and the main-
tenance of the system of supervision in accordance with the
former practice, except for the substitution of the United Nations
for the League of Nations for the exercise of supervision, remained
binding on the Union of South Africa, it is necessary to consider
what was the position, under the system in force in the League
of Nations, with regard to the hearing of petitioners.

The Court has in this connection made two observations with
which we are in agreement. It has stated in the first place that
the functions of the Committee on South West Africa are analogous
to those of the Permanent Mandates Commission established by
the Council of the League of Nations, pursuant to Article 22 of
the Covenant: the Court had already so stated’ in its Opinion
of 1955 (I.C.J. Reports 1955, p. 72). In the second place, the
Court has stated that oral hearings were not granted to petitioners
by the Permanent Mandates Commission at any time.

The Permanent Mandates Commission had, however, been
concerned with the question of such hearings and in 1926 it
expressed the opinion that in certain cases “it might appear
indispensable to allow the petitioners to be heard by it”. It sub-
mitted the question to the Council of the League of Nations,
which considered that there was no occasion to introduce this
innovation (Resolution of March 7th, 1927).

The Report, on the conclusions of which the Councii of the League
of Nations adopted this negative solution, stated, among other
things, that it was important that the Commission should have

49
DISSENTING OPINION (OPINION OF I VI 56) 69

“at its disposal all proper means for obtaining ... information”.
It thus placed the question on the ground of what the Opinion
of 1950 called ‘‘the degree of supervision”. The Report added that
“it would not, however, be desirable to seek to attain this object
by means which might alter the very character of the Commission”.
It tempered the negative conclusion which it reached, or sought to
quiet the fears which that conclusion. might arouse in the minds of
some, by adding: “If in any particular case the circumstances
should show that it was impossible for all the necessary information
to be secured ... the Council could ... decide on such exceptional
procedure as might seem appropriate and necessary in the particular
circumstances.”

This reservation was not repeated in the Resolution adopted by
the Council of the League of Nations. The Council directed the
Secretary-General to transmit copies of the Report, of the Resolution
and of the replies of the mandatory Powers to the Permanent
Mandates Commission. ‘

In the view of the Rapporteur, consideration of a “particular
case” such as he envisaged was to be within the domain of the
Council of the League of Nations, and it was not a matter in respect
of which provision should be made in advance by means of any
“‘general rules”. It would therefore be contrary to the proposal
enunciated by the Rapporteur to proceed by virtue of a delegated
power authorizing the Committee on South West Africa to assess
the requirements of a particular case and to determine the excep-
tional procedure warranted by the particular circumstances, or
for the General Assembly to proceed on the basis of ‘general rules”
authorizing, in greater or lesser measure, the hearing of petitioners.
Lastly, it is to be observed that, although the Report was prepared
with reference to the question of the hearing of petitioners, ‘‘such
exceptional procedure as might seem appropriate and necessary
in the particular circumstances’ which it envisages need not
necessarily involve hearings, but might consist of something else.

If it were necessary to determine what were, in the view of the
Rapporteur, the powers of the Councii, this point would require
more detailed consideration. But having regard to the question
which has been put to the Court and to what is, in our view, the
meaning of the Opinion given by the Court in 1950, it is sufficient
for us to observe that the Report had no practical consequences,
so far as the hearing of petitioners was concerned, and that the
Permanent Mandates Commission continued to refrain from
hearing petitioners.

50
DISSENTING OPINION (OPINION OF I VI 56) 70

*
* *

Since the Opinion of 1950 made reference to the former practice
and since the Permanent Mandates Commission did not have
recourse to the hearing of petitioners, we are compelled to take the
view that such hearings by the Committee on South West Africa
would not be consistent with the Opinion given by the Court in 1950.

In reaching this conclusion, we have not had regard to the fact,
noted by the General Assembly in Resolution 749 A (VIII), that the
Union of South Africa is not submitting to the exercise of super-
vision. Consideration of this fact did not appear to us to fall within
the scope of an examination of the question put to the Court in the
Request for an Opinion submitted to it.

We do not, however, overlook the fact that the question of the
hearing of petitioners by the Committee on South West Africa might
be placed on another ground than that of the compatibility of such
hearings with the Opinion of 1950. The General Assembly might be
led to enquire whether that refusal, which it had noted, of the
Union of South Africa to submit to the exercise of supervision by
the United Nations did not authorize it to allow the hearing of
petitioners, even though it should thereby depart from the Opinion
of 1950 which it had adopted as a rule governing its action. Certain
considerations of a legal character might enter into an examination
of that question : the importance of international supervision under
the Mandates System and the obligation of the Mandatory Power
to submit to the exercise of supervision, both of which were recalled
in the Opinion of 1950. It might also be recalled that, while propo-
sing that the hearing of petitioners should not be sanctioned by any
provision more or less general in character, the Rapporteur indicated
to the Council of the League of Nations in 1927 that in any par-
ticular case it would be open to the Council to ‘‘decide on such
exceptional procedure as might seem appropriate and necessary in
the particular circumstances’’. Whatever the importance of such
considerations, they would not be sufficient by themselves to pro-
vide an answer to such a question : in considering that question the
General Assembly could not avoid taking into account considera-
tions of a political and practical character which are within its own
competence and not within that of the Court.

The question here envisaged, which relates to the possibility of
the General Assembly’s authorizing the hearing of petitioners even
if, by so doing, it should depart from the Opinion of the Court, is,
by reason of its object and of the considerations which its examina-
tion would involve, different from the question of compatibility
with that Opinion. It is the latter question only that the Dissenting
Opinion seeks to answer. The answer which we give cannot prejudge
the General Assembly’s answer to the altogether different question
to which reference has just been made.

51
DISSENTING OPINION (OPINION OF I vi 56) 71

*
* *

For these reasons, it is not possible for us to subscribe to the
Opinion now given by the Court.

(Signed) A. BADAWI.
BASDEVANT.
Hsv Mo.
ARMAND-Ucon.
Lucio M. MORENO QUINTANA.

Declaration by Vice-President Badawi
[Translation]

While subscribing to the above opinion, I feel it proper to add
the following consideration.

In fact, the former practice under the Mandates System in
respect of the hearing of petitioners was as described in the fore-
going opinion. However, the decision of the Council of the League
of Nations to communicate to the Permanent Mandates Com-
mission—together with the Resolution of 1927 according to which
“there is no occasion to modify the procedure which has hitherto
been followed by the Commission in regard to this question’’—
the Report on the basis of which that Resolution was adopted
and the replies of the mandatory Powers, conferred upon these
documents the character of an explanatory note to the Resolution
of the Council. The Report should accordingly, in my view, be
regarded as forming part of the Resolution.

Looked upon in this light, the Report made available to the
Council, and now makes available to the General Assembly, the
possibility, in the particular cases there referred to, of undertaking
the hearing of petitioners as such an ‘‘exceptional procedure as
might seem appropriate and necessary in the particular circum-
stances’, Any decision authorizing such a course would essentially
be a decision on the particular facts of the case and should be
taken by the General Assembly itself wherever it considers that
it would be desirable to authorize such a hearing : in other words,
any general delegation to another organ of the powers of the
General Assembly in this connexion should be excluded.

(Initialled) A. B.

52


145

DISSENTING OPINION OF JUDGE READ

I regret that I am unable to concur in the answers given by the
majority of my colleagues to the Questions submitted in the Request.
In genera] I agree with the position taken by President Hackworth
and Vice-President Badawi, but there are certain aspects of the
matter, which, in my opinion, deserve special consideration.

My difficulties in concurring in the Opinion are fourfold. They
concern: the nature and significance of the notion of competence
or jurisdiction; and the problems of interpretation arising under
Article XII, paragraph 1, of the Statute of the Administrative
Tribunal, the clauses in the Judgments which purport to confirm its
jurisdiction, and Question I.

My first difficulty relates to competence or jurisdiction. This
notion is the principle that a Tribunal must keep within the limits
imposed by law, or by the instrument under which it operates. It
applies at all stages of proceedings: commencement; pleadings;
oral proceedings; and, above all, at the crucial stage, delivery of
judgment.

Lack of competence may be raised by preliminary objection, or
during the examination of the merits. In preliminary proceedings,
the tribunal may simply reject the objection to the jurisdiction, or
it may decide, at that stage, that it is competent: but either
finding is interlocutory. In any event, if, in the course of the exami-
nation of the merits, it is established by a party, or the tribunal
finds of its own motion, that it is incompetent to adjudicate, it
cannot proceed to judgment. This does not mean that the problems
of competence and merits are the same. They are separate in prin-
ciple, although there may be issues of fact and law that are common
to both. What it does mean is that it is the duty of every tribunal—
when the relationship of the parties, the essential character of the
cause of action, and other matters relevant to jurisdiction have
been established—to satisfy itself that it is competent to deliver
the judgment and thus to complete the hearing of the case.

This confirmation of jurisdiction is a finding by the tribunal
that, in adjudicating, it is acting within the scope of its authority
to adjudicate, prescribed by law and by the statute under which it
operates. It has nothing to do with the question whether the decision
is right or wrong: that is merits. It is concerned solely with the
duty of the tribunal to respect and maintain the limits imposed
on its authority; the rightness or wrongness of the decision being
irrelevant considerations.

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144 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

My second difficulty relates to the interpretation of Article XII
of the Statute, which provides that:

“In any case in which the Executive Board ... challenges a
decision of the Tribunal confirming its jurisdiction, ... the question
of the validity of the decision given by the Tribunal shall be sub-
mitted by the Executive Board concerned, for an advisory opinion,
to the International Court of Justice.”

I am disregarding the provision relating to procedural fault,
which was eliminated from the case by Unesco.

Four expressions present problems of interpretation: “challenges” ;
“decision of the Tribunal confirming its jurisdiction” ; “‘the question
of the validity of the decision”; and “‘shall be submitted”. The
first three are directly involved in this case.

There are two ways of construing a text. It can be given its
ordinary and natural meaning; or, when that does not make sense,
it can be given a meaning which, while not doing violence to the
words used, is in conformity with the context and the general
tenor of the document, and which will give effect to the general
intentions of its authors, as indicated by its terms and by attendant

- circumstances. I shall refer to the first as literal, and to the second
way of construing the text as liberal interpretation.

The expression “‘challenges a decision”, if literally construed,
would connote the fact of challenge and not its substantial quality.
Unesco, acting under Article XII, did challenge the whole Judgment,
in terms broad enough to constitute a challenge to the decision
confirming jurisdiction. Literally construing the word “challenges”,
it would follow that the Executive Board was empowered to submit
the validity of the decision to this Court, regardless of whether or
not it could substantiate the challenge. But it has been universally
accepted that Unesco can only require the Court to rule on validity
if the challenge proves to be well-founded. All unite in applying a
liberal interpretation.

Similarly, liberal interpretation has been given to the last two
expressions referred to above. Strictly, “the question of the validity
of the decision” would cover all aspects of validity, but it is univer-
sally accepted that it must, in order to give effect to the general
intention of the authors, be restricted to those aspects of validity
or invalidity which result from the competence or incompetence
of the Tribunal. Literally, “shall be submitted’’ is imperative; but
it is recognized that the Executive Board is under no compulsion
but exercises its political judgment in deciding whether or not to
submit the question to the Court.

71
145 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

The second expression —‘“decision of the Tribunal confirming its
jurisdiction’’—gives more difficulty. It is impossible, on the basis
of literal construction, to confine the words to decisions that the
Tribunals were competent to entertain the complaints, and to
listen to the witnesses and counsel, i.e. to exercise the less important
aspects of jurisdiction, because the authors did not choose to use
the words “‘confirming the preliminary and relatively unimportant
elements of jurisdiction, but ignoring the crucial element, the
delivery of judgment’. But I do not feel justified in giving a liberal
interpretation to the first three expressions with which I have
dealt, and at the same time imposing a literal construction on the
expression now under consideration. Accordingly, I shall examine
the nature and historical background of the Article and its relation
to other parts of the Statute.

A precedent was established in 1946 when the Assembly of the
League of Nations refused to give effect to certain judgments of
the Administrative Tribunal, on grounds of nullity. Some of the
officials were from the International Labour Organisation and
when the Organisation was taking over the League Tribunal and
Statute, it became necessary to cope with the problem presented
by the precedent. This was a serious matter, because it imported
into the relation between official and organization an arbitrary
element, and destroyed security of tenure. It was, however, impos-
sible to reverse the precedent, because many members were not
prepared to accept a position in which a judgment of the Tribunal
which was null and void would be binding on the Organisation. A
compromise was reached and embodied in Article XII.

Prior to the adoption of Article XII, the officials were at the
mercy of the Organisation, because there was no legal sanction
against possible action in treating a judgment as a nullity. Under
Article XII, provided that it is liberally construed, the Organisation
can only treat a judgment as invalid if it has been found to be so
by this Court.

For ten years, the provisions of Article XII have stood out as
the only safeguard giving effective protection to officials from
arbitrary action by the Organizations. Restrictive construction
of the expression under consideration, confining the effect of this
safeguard to cases in which there can be found a decision of the
Tribunal limited to the preliminary and relative unimportant
elements of jurisdiction, would narrow the scope of the safeguard,
and enlarge the field in which officials were at the mercy of the
Organizations. I am compelled to give a broad and liberal inter-
pretation to a remedial measure, designed to ensure justice and to
prevent arbitrary action.

Apart from the historical background, which so strongly indicates
the need for broad and liberal construction, the context suggests
the same need, with equal force. Here I shall mention only one

72
146 DISS, OPIN. OF JUDGE READ (OPIN. 23 X 56)

point: Article VIII. The scope of the judgment to be given by the
Tribunal was rigidly confined. It was given competence to “order
the rescinding of the decision impugned or the performance of the
obligation relied upon”. In the event that these courses proved to
be impossible or inadvisable, competence was given to “award
compensation for the injury caused...”. The language was imper-
ative, and it is clear beyond argument that the authors of the
Statute intended to confine the Tribunal to these forms of redress.
There was no way in which an Organization could know that the
Tribunal was delivering a judgment which, in the matter of redress,
was beyond its competence, until after the judgment had been
delivered. That would be too late for argument, too late fax any-
thing but the procedure under Article XII.

Restrictive construction would thus render nugatory the limi-
tations imposed by Article VIII and it is therefore unacceptable
to me.

It thus appears that a literal examination of the words ‘decision
of the Tribunal confirming its jurisdiction’’, a survey of the histor-
ical background, and the context, all unite in compelling me to
adopt a broad and liberal construction. I am convinced that the
authors of the Statute had in mind all elements of jurisdiction and
that they did not intend to exclude the crucial element, the delivery
of judgment.

My third difficulty in concurring in the Opinion relates to the
interpretation of the clauses in the Judgments of the Tribunal which
deal with jurisdiction. |

The first is the seventh clause appearing under the heading
“ON COMPETENCE’’, which reads:

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

The reference to paragraph (1) is an obvious clerical error. It
must be treated as referring to paragraph (5), but this is of no
importance as the link with Article II of the Statute was abandoned
in the dispositive. To avoid confusion I shall refer to this clause as
the tentative finding on competence.

The second clause, to which I shall refer as the decision confirm-
ing jurisdiction, is in the dispositive. Together with the preceding
and following clauses, it reads :

“ON THE GROUNDS AS AFORESAID

THE TRIBUNAL,

Rejecting any wider or contrary conclusions,
Declares the complaint to be receivable as to form ;

Declares that it is competent ;
Orders the decision taken to be rescinded and detlares in law
147 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

that it constitutes an abuse of rights causing prejudice to the
complainant ;

In consequence, should the defendant not reconsider the decision
taken and renew the complainant’s appointment, orders the
said defendant to pay to the complainant the sum of $15,500,
together with interest at 4 per centum from x January 1955;

Orders the defendant Organisation to pay to the complainant the
sum of $300 by way of participation in the costs of her
defence ; ...”’

(I have italicized the decision confirming jurisdiction.)

There can be no doubt as to the meaning. This clause was an
integral and operative part of the dispositive. Read with the fol-
lowing clause, it was an unequivocal decision by the Tribunal
confirming its jurisdiction to render judgment based, not on the
provisions of Article IT, paragraph 5, but on abuse of rights, a very
different matter.

The use of the present tense, ‘is competent”’, places the construc-
tion beyond doubt. The words cannot possibly be construed as
meaning: ‘Declares that it was competent’’. The tentative finding
on competence was part of the expositive, and it must give way
to the decisive clause which appears in the dispositive. The decision
by which the Tribunal actually confirmed its decision, the decision
which was challenged by Unesco, and the decision which must
be taken into account in answering the Questions in the Request,
is the actual decision which is contained*in the dispositive and not
the tentative finding on competence.

My fourth difficulty relates to the interpretation of Question I
of the Request. In putting the question of jurisdiction to the Court,
Unesco used the expression “Was the Administrative Tribunal
competent ... to hear the complaints...’’. The words used suggest
that Unesco wanted the Court’s Opinion as to the Tribunal’s
competence to hear the complaints in the widest sense. The expres-
sion “‘to hear the complaints’, if given the ordinary and natural
meaning of the words used, would extend to both the reception
and the disposition of the complaints. But the French text, which
is the original, is, perhaps, less free from doubt in this regard.

Accordingly, it becomes necessary to consider the attendant
circumstances, and to ressort to liberal interpretation. In this way
the true position emerges.

In the first place, the Question should be considered in relation
to the scope of Article XII, under which it was put to the Court;
and also in relation to the scope of the clauses in the Judgments
confirming competence. Both the former and the latter extended

74
148 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

to both the reception and the disposition of complaints. It would
not be unreasonable to interpret the question as extending to the
whole field of competence, as included within the Judgments and
the Article.

In the second place, Unesco has throughout made it clear that
it was intended to raise the question of jurisdiction in the widest
sense. This was done in paragraph 93 of the Written Statement, and
reasserted in the letter from the Legal Adviser to the Registrar
of the Court, dated June 2oth of this year.

In the Written Statements, not only Unesco but also the Govern-
ments have discussed the issues on the assumption that the issue
of competence, in the widest sense, was raised by the Questions.
The only doubt arises from some remarks by Unesco, both in para-
graph 93 of the Written Statement and in the letter of June 2oth.
It was there suggested that the issue of competence in one aspect
(competence to entertain the complaints) was being raised by
Question I, and that competence in its other aspect (competence
to dispose of the complaints) was covered by Question II.

To me the question whether the issue of competence to deliver
judgments on matters over which jurisdiction had not been con-
- ferred by the Statute should be regarded as arising under Question I
or II is a matter of slight importance. The important thing is that
the issue has arisen, and must be dealt with.

In my opinion, the proper course to be followed would be to
revise the Questions by striking out Question II, and by giving to
Question I a liberal interpretation, so as to cover both the reception
and the disposition of the complaints. That is the course which the
Permanent Court, and also this Court, invariably followed, when
there was possible discrepancy between the Questions as framed and
the actual legal questions as developed by the Written and Oral
Proceedings.

%
* *

Examination of these four matters has led me to the following
conclusions: |

ist. That Article XII contemplates a decision by the Tribunal
confirming its jurisdiction in its entirety.

and. That the clauses in the Judgments confirming competence
must be construed as confirmation based on the actual
position as established in the proceedings, and as confirm-
ing the competence of the Tribunal to deliver the Judg-
ments of which they are parts.

3rd. That Question I of the Request should be construed as
raising the issue of competence of the Tribunal to deliver
the judgment.
149 DISS, OPIN. OF JUDGE READ (OPIN. 23 X 56)

Accordingly, I am unable to confine my examination of the case
to the seven clauses which come under the heading “on COMPE-
TENCE’, but find it necessary to look at the whole judgment. In
so doing, I shail not consider whether the Tribunal was right or
wrong in any conclusions which it reached concerning the merits.
J shall not consider whether there was or was not, in fact or law,
non-observance of the terms of appointment or of provisions of
the Staff Regulations; or whether there was or was not, in fact or
in law, an abuse of rights. I shall confine myself to the single ques-
tion: did the Tribunal keep within the limits of its competence, as
prescribed by the law and by the Statute? I shall begin with the
limitations on the competence of the Tribunal, and then examine
the course actually followed in delivering the Judgments and end
with my own opinion as to the answers that should be given to
the questions.

As regards limitation, I shall begin with two which were imposed
by the Statute.

By Article Il, paragraph 5, the competence of the Tribunal was
restricted to hearing “complaints alleging non-observance, in
substance or in form, of the terms of appointment of officials and
of provisions of the Staff Regulations...”’.

There are three possible constructions to be placed on these
words. The first, based on literal interpretation, is that the Tribunal
is competent to entertain a complaint, provided that there has been
an allegation of non-observance of the terms and provisions, and
notwithstanding that there is no substantial basis for the allegation.

If this construction is accepted, the inevitable conclusion is that
the Tribunal was without jurisdiction; because the complainants
made no such allegation. They did not allege non-observance of the
terms of appointment, or of provisions of the regulations. They put
their cases on an entirely different basis, which was described by the
Tribunal in the following words:

“Having had referred to it a complaint submitted against the
United Nations Educational, Scientific and Cultural Organisation
of 5 February 1955 by Mr. Peter Duberg, an official of that Organisa-
tion, asking that the Tribunal be pleased to rescind the decision
taken by the Director-General on 13 August 1954 and to enjoin
the Director-General to renew the contract of the complainant
and to pay him the sum of one franc in respect of damages and
legal costs ;”.

There is nothing there about non-observance.

However, I am unable to accept this literal construction, for the
same reasons that led to the universal rejection of a similar construc-
tion of ‘‘challenges’’, in Article XII.

76
150 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

The second possible construction is neither literal nor liberal. It
is that, to sustain jurisdiction, the complainant must make out a
prima facie case, but need not prove that the case is, in reality,
based on non-observance within the meaning of Article II, para-
graph 5. That course has its proper place when an objection is
taken to the jurisdiction in preliminary proceedings. But then, the
decision of the Tribunal is interlocutory, and subject to reversal, as
regards competence when, in dealing with the merits, the Tribunal
finds that the actual cause of action is not based on ‘“‘non-observ-
ance’.

I am unable to accept this construction. There is nothing in the
words used to justify its adoption. I do not think that the authors of
the Statute intended that the Tribunal should be competent to
entertain a complaint, based on a prima facie case of “‘non-observ-
ance’’; and that, after that prima facie case had been disproved or
abandoned, it would be competent to proceed to deal with different
causes of action which they had attempted to exclude from the juris-
diction of the Tribunal by the terms of Article II, paragraph 5. I
am of the opinion that it must be established that the cause of
action is based on “‘non-observance”’ before the Tribunal can be
regarded as competent to render judgment. It is noteworthy that
there is not even a tentative finding of ‘“‘non-observance’’ in the
expositive and that it was abandoned in the dispositive.

The second limitation was imposed by Article VIII; and I do
not need to repeat what I have said with regard to it. The Tribunal’s
competence in regard to the contents of its judgment was subject
to the most stringent limitation. It could not award damages, puni-
tive or otherwise, it could not impose fines or imprisonment or order
equitable reparation; it could only grant the redress for which
Article VIIT made express provision: rescission, specific performance
or competence to ‘‘award compensation for the injury caused”.

The third limitation is imposed by positive law. It is a general
principle of law, recognized in national legal systems and by inter-
national jurisprudence, that a tribunal must base its decision on the
legal rights of the parties. In the absence of a special provision in
its statute, a tribunal is not competent to base its judgment ex
aequo et bono.

*
* *

Keeping these limitations in mind, it is necessary to look at the
course actually followed by the Tribunal in dealing with the cases.
In sor far as the Judgments appeared to be dealing with the question

77
I51 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

of non-observance of the terms and provisions, I shall refrain from
comment, as I am concurring generally with the views expressed by
President Hackworth and Vice-President Badawi. But, after touch-
ing lightly on these matters, the Tribunal was not content to rely
on the grounds set fourth in the Statute. It proceeded to base its
judgment on an entirely different cause of action: “détournement de
pouvoir’ and “abuse of rights’ +. I do not need to discuss the pro-
priety of attempting, without statutory authority, to introduce
these notions into international.administrative law. It is sufficient
to point out that the adjudication of a cause of action based on
them was beyond the competence of the Tribunal under Article IT,
paragraph 5, of the Statute. Further, they were not merely beyond
the scope of this paragraph. They were completely inconsistent with
“non-observance’’. Both notions were based on the assumption that
the Director-General was observing the terms of appointment and
the provisions of the Staff Regulations, and exercising the legal
rights of the Organization, but that he was exercising the rights
unconscionably, or for motives different from those which the
framers of the Regulations had in mind.

Further, in dealing with the problem of redress, the Tribunal
proceeded in disregard of the limits on its competence imposed by
the Statute, and by positive law. It abandoned the idea of awarding
compensation in pursuance of the provisions of Article VIII, and
decided to award ‘‘equitable reparation”, a course which was pre-
cluded by the Statute. It abandoned legal considerations, and
decided “That redress will be ensured ex aequo et bono by the grant-
ing to the complainant of the sum set forth below;”’.

Finally, when it came to the dispositive, the Tribunal jettisoned
the entire cause of action in so far as it was based on “‘non-observ-
ance”, and relied solely on the cause of action based on “abuse of
rights”. The dispositive began with the provision: “Rejecting any
wider or contrary conclusions”. Assuming that this provision has
any meaning at all, it must mean that the Tribunal was rejecting
the contrary conclusions, i.e. the complainant’s objection dealt with
in section “D” under the heading ‘ON THE SUBSTANCE” and the
respondent’s contentions; and also the wider conclusions i.e. con-
tentions based on any ground other than abuse of rights, such as a
claim based on “‘non-observance’’.

1 The expression ‘‘détournement de pouvoir’’, in the unofficial translation furnished
to the Court by Unesco, has been mistranslated as ‘“‘wrongful exercise of powers’’.
While, ordinarily, it has been used as the equivalent, in public law, of the notion of
abuse of right in private law, the four Judgments treat them as synonymous and
interchangeable terms.

78
152 DISS. OPIN, OF JUDGE READ (OPIN. 23 X 56)

But even if the first provision, quoted above, has no meaning, the
matter is put beyond all doubt by the central operative clause of
the dispositive, which reads:

“Orders the decision taken to be rescinded and declares in law
that it constitutes an abuse of rights causing prejudice to the com-
plainant ;”.

The words used in this, the crucial clause of the dispositive, leave
no room for doubt that the Tribunal had abandoned the complaint,
in so far as it was based on any consideration other than abuse of
rights.

Before leaving the dispositive, it is necessary to refer to the
declaration which immediately precedes this clause:

“Declares that it is competent ;””.

It is unnecessary to repeat the comments already made with regard
to this declaration. It is sufficient to point out that the actual deci-
sion confirming jurisdiction challenged by the Executive Board of
Unesco and presented to this Court for consideration was a declara-
tion by the Tribunal that it was competent to render a judgment
based, not on non-observance of the terms of appointment of officials
and of provisions of the Staff Regulations, but on abuse of rights, a
matter which was plainly beyond the competence of the Tribunal
as established by the provisions of its Statute.

It has been suggested that the foregoing considerations are part
of the merits, and not relevant to the competence of the Tribunal.
But I am unable to accept this view because it does not take full
account of what really happened when the four Judgments were
rendered.

Before there had been a position, under the Constitution, the
Staff Regulations and Rules, and the Statute of the Administrative
Tribunal, in which there was an orderly distribution of authority
and functions among the Organs of Unesco as regards staff matters.
Sovereign power was reserved to the Member States, but, subject
to this reservation, general and paramount power was given to
the General Conference and, to a more limited extent, to the Exe-
cutive Board.

By recognizing the jurisdiction of the Administrative Tribunal
of the International Labour Organisation, a field was established
within which disputes between officials and Unesco were to be
dealt with by the Tribunal. But this field, while broad and extensive,
was strictly limited. The Tribunal could not go beyond «non-
observance ... of the terms of appointment of officials and of pro-
visions of the Staff Regulations...”’, and there was no authority to
disregard the legal rights of either officials or Organization.

The Director-General, under the Constitution, was “the chief
Administrative officer of the Organization”. The Constitution was

79
153 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

based on the principle of separation of the powers, and his task was
simply to give effect to the common will of Unesco, as expressed by
the General Conference and Executive Board. That common will, as
regards staff matters, was largely embodied in the Regulations and
Rules, in which some discretionary powers were conferred on the
Director-General. The General Conference did not choose to
submit these discretionary matters to judicial review, but re-
tained them within its own authority. They were matters in
which the exercise, by the Director-General, of his discretionary
powers was neither absolute nor arbitrary, but subject to control
through the political organs, the General Conference and the
Executive Board.

Henceforth, and as a result of the four Judgments, the orderly
distribution of authority and functions among the Organs—as
established under the Constitution, the Regulations and the Statute
—has been destroyed. By its assertion of competence to proceed
ex aequo et bono, the subjective appreciation of the Tribunal has
been substituted for the rule of law in deciding disputes between
officials and Organization. By asserting its competence to base its
judgments on abuse of rights, the Tribunal has substituted its own
notions of “‘the good of the service’’ and ‘‘the interest of the Organi-
sation’ for the control by the General Conference and Executive
Board over the exercise by the Director-General of discretionary
powers conferred on him by the General Conference.

In my opinion the bringing about of such a revolutionary change
went far beyond the disposition of the cases on the merits, and
transcended the competence conferred on the Tribunal by the
provisions of Article II, paragraph 5, of its Statute.

Having dealt with the limitations imposed on the competence of
the Tribunal, and the course actually followed in delivering judg-
ment, it is necessary for me to give my own opinion as to the answers
that ought to be given to the Questions set forth in the Request.

I have interpreted Question I as raising the issue of the compe-
tence of the Tribunal to deliver the Judgments, as well as its
competence to deal with the less important parts of the hearing.
Accordingly, my answer is in the negative.

The problem of dealing with Question II does not arise for me.
But if Question I is not interpreted as raising the issue of the compe-
tence of the Tribunal to deliver the Judgments, it follows that

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154 DISS. OPIN. OF JUDGE READ (OPIN. 23 X 56)

this issue would be raised by Question II. In that event, my answer
to Question IT, clauses (a) and (b), would be in the negative.

My answer to Question III is that the decisions given by the
Administrative Tribunal are invalid, by reason of lack of juris-
diction under the Statute.

(Signed) J. E. READ.

&1