123

DISSENTING OPINION OF VICE-PRESIDENT BADAWI
[Translation]

I regret that I am unable to concur in the Opinion of the
Court upholding the jurisdiction of the Administrative Tribunal
of the International Labour Organisation in the four cases
concerning Unesco. I agree with the conclusions reached by Presi-
dent Hackworth and Judge Read for the following reasons :

The Request for Advisory Opinion submitted to the Court
consists of three questions.

The first question is expressed in terms of jurisdiction, and
the third in terms of validity. Both these questions use the wording
of Article XII of the Tribunal’s Statute. Both represent the same
order of ideas considered from different angles: from the angle
of cause and the angle of effect. The link between the two questions
is therefore indissoluble. The two questions in fact constitute
but one.

Question IE is put in the event of the reply to Question I being
in the affirmative. It would therefore be premature to examine it
before answering Question I, for the purpose of giving an answer
to it or of stating that it does not arise.

+

Mw se
* ES

The Administrative Tribunal of the International Labour
Organisation has held that it had jurisdiction to hear the com-
plaints of four Unesco officials. In order to examine these four
judgments which, apart from the particular facts of each case,
are identical, it will suffice to take Judgment No. 17 in the Duberg
case as an example.

It is obvious that to enable the Executive Board of Unesco
to challenge the decision of the Administrative Tribunal confirming
its jurisdiction and to request the advisory opinion provided
for in Article XII of the Statute of the Tribunal, the grounds
on which the Tribunal bases its jurisdiction must, independently
of the merits, be in themselves sufficient to establish the precise
legal basis of its jurisdiction. It would indeed be inconceivable
that the Tribunal should be able to declare itself competent on
the basis of reasons not subject to legal evaluation.

However, it is sometimes the case that jurisdiction can only
be established by reasons which are bound up with the merits.
In such a case, a court orders the joinder of the objection to the
jurisdiction and of the merits and deals with them together,
giving its decision first on the issue of jurisdiction and then on

50
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 124

the merits. Such joinder facilitates a better ordering of the judg-
ment and is conducive to greater clarity. It also makes possible
the avoidance of repetitions which are inevitable in the statement
of the reasoning of the decision if the issue of jurisdiction and
the merits are separately dealt with.

A joinder of objection and merits, however, would only be
possible if the tribunal dealing with the case has no superior
court above it or, if it is a court of first instance, if its judgments
are subject to appeal, that is to say if the whole judgment is
subject to review. In the latter case, its decision, both as
regards jurisdiction and merits, will be subject to review by the
higher court.

But in the case of Article XII of the Statute of the Adminis-
trative Tribunal, the Tribunal’s decision is subject to examination
by the Court only with regard to the question of jurisdiction;
the Court has no power of review with regard to the merits, the
Tribunal’s judgments, so far as they are concerned, being final
and without appeal.

In order, however, to exercise its power of control over the
jurisdiction of the Tribunal, the Court must necessarily base its
Opinion on the Tribunal’s interpretation and application of the
provisions of its Statute.

Where an objection to the jurisdiction is joined to the merits,
the Court will seek this interpretation and application in the
reasoning as a whole. But where the tribunal deals with the two
questions, that of jurisdiction and that relating to the merits,
separately, the Court will confine its examination to the reasoning
on which the tribunal has based its finding that it has jurisdiction.

If, however, the tribunal, while not ordering the joinder of the
objection and of the merits, fails to observe the necessary distinc-
tion between the two questions and is satisfied with a mere division,
in two sections in which the reasons are mingled, the Court is
bound, if the section relating to jurisdiction does not contain ade-
quate reasoning, to seek further in the other section. Although mixed
up with the examination of the merits, the legal reasoning supple-
menting that specifically referable to jurisdiction itself properly
pertains to the issue of jurisdiction and is, therefore, subject to
review by the Court.

In the present case, no joinder was ordered by the Tribunal, but
the Tribunal, while not deciding on that course, has in fact mixed up
the grounds relating to the two questions, jurisdiction and merits.
That part of the Judgment devoted to jurisdiction contains—apart
from certain observations which are not relevant and a mere refer-
ence to the Memorandum of July 6th, 1954—nothing but a recital
of the complaint, followed by an assertion of the competence of the
Tribunal. The part of the Judgment which deals with the merits
gives a clearer indication of the Tribunal’s ideas with regard to
jurisdiction.

51
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 125

This method of operation on the part of the Administrative
Tribunal is clearly revealed by an examination of the two succeeding
parts of the Judgment.

But before undertaking this examination, it is desirable to
establish the border line between jurisdiction and merits. The
distinction between the two is fundamental for the exercise by the
Court of its power of review. |

In order to determine the jurisdiction of the tribunal, it is
unnecessary for the claimant to prove his right (that pertains to the
merits), but it is essential to define the basis of his action in order
to ascertain whether it falls within the sphere of activity of the
tribunal or, in other words, whether the tribunal is or is not
competent to hear it. |

But, according to the words of Article II, paragraph 5, of the
Statute of the Administrative Tribunal of the International Labour
Organisation, the Tribunal is competent to hear complaints alleging
non-observance, in substance or in form, of the terms of appoint-
ment of officials and of provisions of the Staff Regulations (of
Unesco).

The expression ‘in substance or in form” (soit quant au fond,
soit quant à la forme) does not here refer to the underlying meaning
of the terms and provisions, as opposed to their liberal meaning.
Such a contrast, indeed, would be odd in a legislative text. It-is
merely a reference to the well-known concept of “‘substantive rules”?
as contrasted with “adjectival or procedural rules” {règles de fond,
règles de forme ou de procédure). This coupling of the two categories
of rules is designed to put them on a footing of equality, in the sense
that non-observance of either will give rise to judicial proceedings
and that it is the duty of the Tribunal to safeguard and protect
officials against their non-observance. |

According to paragraph 6 (a) and (b) of the same article, which
lays down to whom the Tribunal shall be open, an official alleges
non-observance of the terms of appointment or of the Staff Regula-
tions for the purpose of asserting a right.

It is therefore necessary for the official to state the right which
he is claiming and to invoke the term non-observance of which has
given rise to that right, to enable the Tribunal to find that it has
jurisdiction after it has checked each of these, without, however,
going into the facts relied upon to prove the case (the merits),
from the point of view of their correctness, truth or reality, and
without forming a judgment on the interpretation or application
put forward by the official.

This does not constitute an excessive requirement, but the
complaint and the Tribunal’s decision must, clearly, indicate the
nature of the right claimed by the official and state the terms
and provisions the interpretation or application of which might
serve as a basis for that right and the probable, or possible, weight
of these.

52
DISS, OPIN, OF VICE-PRES. BADAWI (OPIN. 23 X 56) 126

The right claimed by the four officials is undoubtedly the renewal
of their contracts. But what is the term or provision entitling them
to that right which has not been observed by the Director-General ?

It has been thought that the word “‘alleging’’, which is used in
Article II of the Statute of the Tribunal, is not the same as the
expression “‘based on” and that it has a wider and more flexible
meaning. If the purpose of this observation is to show that it is
unnecessary for the complainant to prove that the right which he
claims is well-founded, the distinction 1s quite correct, and no one
would disagree that the question of jurisdiction is clearly different
from that of the merits.

But if this distinction between the words has as its purpose to
enable the complainant—who has to allege—to refer generally to
the terms of appointment and the Staff Regulations, without indi-
cating the precise terms and provisions the non-observance of which
has given rise to his complaint, such an interpretation would fail
to take into account certain necessities inherent in the drafting of
legislative texts which commonly use the plural to include the
singular.

For the purposes of greater precisions, it was thought possible to
interpret the provision relating to the “‘allegation of non-observ-
ance ... of the terms of appointment ... and of provisions in the
Staff Regulations’ as meaning that it was enough that there should
be a legal relationship (without indicating either its name or its
nature) between renewal and the original contract, between non-
renewal and the legal position of the complainant at the time when
renewal was refused, for the Tribunal to have jurisdiction.

No doubt renewal is something different from an original appoint-
ment. In this connexion it is sufficient to observe that a fixed-term
appointment may be transformed after five years into an indeter-
minate appointment, and that a fixed- term appointment not so
transformed may not be renewed beyond a maximum period of
five years.

This difference itself makes it possible to say that renewal is
different in character from original appointment, but this difference
does not make it possible-—quite obviously and in spite of all the
possible resources of legal dialectic—to give the official any title
or right to renewal on the expiry of each fixed-term appointment.
Every renewal amounts to a new appointment, without prejudice
to the fact that a number of renewals would permit of the transfor-
mation of a fixed-term appointment into an indeterminate appoint-
ment if the Director-General, in his entire discretion, should wish
to retain the services of the official.

This is an argument similar in character to the statement that
a fixed-term appointment does not cease, on its expiry, to produce
legal effects. Apart from the fact that it begs the question, which

53
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 127

is precisely that of ascertaining, in spite of the terms of Rule
104.6 (d), the extent of these legal effects and their source, this
argument fails to reveal any definite concept of a right, although
what has to be alleged is a right in the true sense of the word.

In fact, there is no real difference between the words “‘alleging”’
and “based on’’. In each case, a precise term or provision ought to
be cited, together with an indication of the right which it is claimed
would enure from its non-observance and of the “‘substantial and
not merely artificial connexion” between that right and the pro-
vision invoked.

How, moreover, is it possible for the Court to check the existence
or non-existence of a legal relationship or of legal effects which have
not been relied upon by the complainants or found to exist by the
Tribunal as a basis for its jurisdiction? In any event, it is certain
that if this interpretation should be accepted the result would
be that there would be practically no case in which the Tribunal
lacked jurisdiction, and review by the Court, provided for in
Article XII, would in fact be impossible or useless.

Let us now consider the reasons given in the Judgment on com-
petence, which are the subject of seven paragraphs.

The first paragraph draws a distinction between probationary
and fixed-term appointments. The Tribunal perhaps wished to
indicate that the former may be terminated at any moment ad
nutum, whereas this is not the case of the latter. Apart from the
fact that there is no such thing as a probationary appointment as
an autonomous contract, but merely a probationary period in the
first year of a fixed-term contract, this reason is irrelevant and
constitutes a mere assertion by implication.

The second paragraph quotes Unesco Staff Rule 104.6 (d), which
provides that:

“A fixed-term appointment shall expire, without notice or
indemnity, upon completion of the fixed term unless a renewal is
offered and accepted three months before the expiry date in the
case of an initial fixed-term appointment of one year, and six
months before the expiry date in other cases 1”?

and states that this text only deals with the duration of the appoint-
ment and in no way bars the Tribunal from being seised of a com-
plaint requesting the examination of the validity of the positive
or negative decision taken regarding the renewal of the appointment.

1 The text in force at the time when the Director-General took his decision reads
as follows :

“A fixed-term appointment shall expire upon completion of the fixed term
unless a new appointment is offered and accepted three months before the
expiry date, if the staff member has served for less than one year or six months
before the expiry date, if he has served for more than one year.”

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DISS. OPIN, OF VICE-PRES. BADAWI (OPIN. 23 X 56) 128

To begin with, it is incorrect that the provision deals only with
the duration of the appointment, since it determines the legal
situation as between Unesco and the officials. Again, a complaint
requesting the examination of the validity of a positive decision
regarding renewal is inconceivable. The Tribunal is in fact only
open to officials and those claiming through them, and it is difficult
to see how an official could attack the validity of a decision to
renew his contract, since there can be no renewal in the absence
of an acceptance by him.

The Tribunal, nevertheless, states that Rule 104.6 (d) in no way
bars it (notwithstanding its categorical terms) from considering the
validity of a decision of non-renewal.

Unesco has been at pains to explain that non-renewal does not
constitute a decision, and it has relied for this purpose on the ©
terms of Staff Rule 104.6 (d) and on the nature of the legal rela-
tionship between Unesco and the official. But without pausing to
dwell on an examination of this aspect of the question, it is to be
observed that at the end of June 1954 it could be known that
Duberg’s contract, which was due to expire on December 31st,
1954, would not be renewed because no offer of renewal had been
made to him by that date, the offer being one which had to be
made six months before the expiry of his contract. Providentially,
there was the Administrative Memorandum of July 6th, which was
followed, on August 13th, by a letter from the Director-General to
Duberg informing him that his contract would not be renewed.
There is therefore no difficulty in admitting that there was a
decision not to renew.

In fact, the Tribunal’s declaration that Rule 104.6 (d) was not
a bar to its adjudication on the validity of a decision not to renew
showed that it was preparing to say that, in spite of that provision,
there existed, within certain limits, either a right of the official
to renewal, or an obligation upon the Director-General in this
respect.

The following paragraph appears to lend substance to this idea.
That paragraph cites the Administrative Memorandum of July 6th,
1954, which is referred to as ‘‘a general measure” (une mesure
d'ensemble) and in the next paragraph as ‘‘a general measure”
(une mesure générale) to which the complainant was made an excep-
tion.

In the fourth paragraph, the Tribunal summarizes Duberg’s
complaint in these words: ‘The Director-General could not
legitimately thus make an exception of him on the sole ground which
he invoked against him as justification for the view that he did not
possess the quality of integrity recognized in those of his colleagues
whose contracts had been renewed, and in the absence of any contes-
tation of his qualities of competence and efficiency.”

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 129

(In his complaint the complainant maintained that ‘he had—in
circumstances clearly determined by the Administration—an
acquired right to the renewal of his contract and that this assurance
was more than a mere hope”. He relied on the Administrative
Memorandum of July 6th, 1954, and dealt at length with the facts
relating to his career and with the concept of integrity, the reason
invoked by the Director-General for not renewing his contract.)

The following paragraphs of the Judgment (relating to jurisdic-
tion) add nothing to the reasoning already given: paragraph 5
states the submissions of the complainant; paragraph 6 says that
the question is thus a dispute concerning the interpretation and
application of the Staff Regulations and Rules of Unesco, and
paragraph 7 states that, by virtue of Article IT, paragraph 1},
the Tribunal is competent to hear it.

Apart from the reference to the Memorandum of July 6th, 1954,
these seven paragraphs, which constitute the whole of the reasoning
on the question of jurisdiction, fail completely to state the basis
of that jurisdiction.

The one and only ground on which the Tribunal founds its juris-
diction therefore appears to be the Memorandum of July 6th.

By placing the emphasis on the Memorandum of July 6th, in its
reasoning on the question of jurisdiction, and by its description of
it as a ‘general measure”, the Tribunal seems to be adding it to the
sources of the officials’ rights (contract and Staff Regulations and
Rules). Did this Memorandum really constitute a new source of such
tights, to the extent to which it modified the Staff Regulations and
Rules?

A lively controversy has been engendered as to the scope of the
Memorandum. In the view of some, it was merely a declaration
of policy, an obviously expedient statement which did not and
could not alter the character of relationships created by the contracts
and the Staff Regulations and Rules.

The Director-General found himself in a dilemma:

he either had to transform fixed-term contracts into indetermin-
ate appointments without regard to programme requirements,
or else not to renew such contracts.

Since he had to seek directives from the Conference, which was to
meet in November 1954, the Director-General proposed, pending a
settlement of the question on a solid foundation involving the estab-
lishment of a permanent cadre, to grant a general one-year renewal
in the circumstances which he indicated. This announcement in no
way implied that the normal rules would not be observed, namely,
the necessity for an offer and an acceptance, or that he had aban-
doned his rights, since surrender of a right cannot be presumed.

1 The Tribunal’s reference is incorrect, since this paragraph relates to the Inter-
national Labour Organisation, whereas it is paragraph 5 which applies to Unesco.

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 130

For those holding this view, it is difficult to understand how
a declaration made after the date prescribed for an offer of renewal—
as in the case of the four complainants—can give rise to new rights.
In their view, Rule 104.6 (d), even in its revised form, consequently
remains in force and should be applied. Failing an offer and an
acceptance, the appointment expired on December 31st, 1954,
without notice or indemnity. According to this interpretation,
there was no right to renewal and, in the absence of non-observ-
ance of any term or provision, the Tribunal was incompetent to
hear the complaint.

This obviously was not the opinion of the Tribunal, which
regarded the Memorandum as having the character of a general
measure or of a regulation provisionally modifying the régime
then in force and which considered that the officials were entitled
to the benefit thereof.

The Tribunal, however, was unable to hold that the Memo-
randum gave right to a renewal of the appointment or to an
obligation on the part of the Director-General to renew it, as
claimed by the applicant in his complaint. The Tribunal contented
itself with stating that ‘‘an official who combines all the necessary
qualities has a legitimate expectancy (espoir légitime) of being
offered a new appointment in the position which he occupied”’.

But does the disappointment of a legitimate expectancy or
hope constitute non-observance of the terms of appointment or
of the provisions of the Staff Regulations? So to hold would
be to attribute to legitimate expectancies a legal substance not
warranted by any legal principle.

However that may be, is it necessary for the Court to choose
between these two conflicting views—a “declaration of policy”
on the one hand, which would involve a finding that the Tribunal
lacked jurisdiction on the ground that it had incorrectly defined
the legal position, or “‘a general measure” on the other hand,
which would involve a finding that the Tribunal had jurisdiction?

Such a choice would not in fact resolve the problem of juris-
diction, for, even regarded as a general measure, the Memorandum
could not by itself serve as a basis for the Tribunal’s Judgment
confirming its jurisdiction.

The Memorandum indeed did not envisage an offer of renewal
to all professional staff members in an absolute manner. The
offer was made subject to conditions covering the need for their
services and the achievement of the required standards which
necessarily were to be determined by the Director-General.

In these circumstances, there could not be any non-observance
of the terms of appointment or of the provisions of the Staff
Regulations if non-renewal was based on the absence of any need
for the services of the official or on the failure to achieve the
required standards, and in such a case there could be neither

37

DIS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56)  I3I

any right nor any legitimate expectancy or hope on the part of
the official that his contract would be renewed.

The Memorandum, which made renewal subject to these con-
ditions of need for the services and of achievement of the required
standards, cannot justify an assumption of jurisdiction in pro-
ceedings based upon some right of an official, providing it be
granted that judgment of the satisfaction of the conditions is
within the discretion of the Director-General.

But the Tribunal does not appear to admit this so far as the
condition of integrity is concerned. It appears not to have had
any difficulty about admitting it so far as the other conditions
are concerned ! The whole section devoted to an examination
of the merits deals only with the discretionary power of the
Director-General and at the outset the Tribunal states that ‘7
the Director-General 1s granted authority not to renew a fixed-term
appointment and so to do without notice or indemnity, this 1s clearly
subject to the tmplied condition that this authority. must be exercised
only for the good of the service and in the interest -of the Organization”.

The Tribunal, postulating that the exercise of this power,
subject to the implicit conditions which it has indicated, should
be subjected to its judicial control, proceeds to an examination
of the facts and to a definition of the condition of integrity, and
it concludes “that the decision not to renew the appointment
is one which should not only be rescinded in the present case,
but also constitutes a wrongful exercise of powers and an abuse
of rights which consequently involves the obligation to make
good the prejudice resulting therefrom” ?.

_ *
* #

Since the Court must review all the grounds on which the
jurisdiction of the Tribunal is founded, and since it must seek
them wherever they may be found, the Court must stress this
ground as being the principal ground on which the Tribunal
relied in declaring that it had jurisdiction and in dealing with
the merits. In the portion of the Judgment devoted to the question
of jurisdiction, the Tribunal stated that “the question is a dispute
concerning the interpretation and application of the Staff Regula-
tions and Rules of Unesco’’, but it did not indicate the provision
involved, apparently leaving this to the examination of the merits.

1 This distinction was not, however, justified by the Tribunal, in spite of the fact
that in an international political organization such as Unesco the concept of
integrity should have, apart from its etymological meaning, a relative and wider
meaning.

? The wording here used implies the existence of two grounds, but a careful
reading of the Judgment reveals no ground other than that of détournement de
pouvoir which is the natural conclusion following from the implied conditions
postulated and gone into at length by the Tribunal.

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 132

The reference in this part of the Judgment to the Memorandum
of July 6th was merely paving the way for these implied conditions
inasmuch as the Memorandum constitutes the document to which
reference must be made and which contains the conditions to
which the Director-General made his general offer of one-year
renewals subject. The Tribunal did not rely on the Memorandum
in any other way, nor did it draw any other conclusion from it.

«

It will, however, be observed at the outset that the Tribunal did
not seek to base its Judgment on any right enjoyed by the official
himself, by virtue of his contract or of the Staff Regulations, but
on conditions relating to the Director-General’s right or to his
discretionary power which, if not satisfied, would give rise to a
wrongful act (détournement de pouvoir) involving a right of the
official to be compensated (by money or otherwise).

It may next be observed that these “implied conditions” have
nothing to do with good faith, which is the basis of any contract
and, accordingly, an implied condition inherent in its performance.
In fact, the Tribunal’s analysis of the good of the service and the
interest of the Organization reveals an appreciation by the Tribunal
of these criteria which differs from that of the Director-General but
which does not go so far as to question his good faith.

Finally, it may be observed that “implied conditions” cannot be
regarded as provisions non-observance of which would constitute a
basis for the jurisdiction of the Tribunal. Such provisions clearly
cannot be anything but express and positive provisions. That this
is so appears clearly from the use in the article of the words “in
substance or in form”.

But if these implied conditions do not constitute the terms and
provisions referred to in Article II of the Statute of the Tribunal,
is it possible that they might constitute the interpretation or
application of such terms and provisions? Interpretation is
undoubtedly of the essence of the administration of justice, but
judicial interpretation presupposes the existence of a text to be
interpreted. Moreover, interpretation is subject to certain rules
which are susceptible of control.

What is the term or provision which the Tribunal, in the cases
submitted to it for judgment, has interpreted or applied and what
are the rules which it followed?

The Tribunal proclaims the existence of implied conditions by
way of a mere assertion, and it fails to explain the paradox of a
discretionary power subject to judicial control. The conclusion
reached by the Tribunal that non-renewal constitutes a détourne-
ment de pouvoir, shows that it regarded itself as having jurisdiction
to deal with a défournement de pouvoir, But such a power cannot be
presumed to be inherent in administrative justice. Though the

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 133

French Conseil d'État may have exercised it after a lengthy evolu-
tion and as a result of a series of decisions which may be described
as praetorian, the administrative tribunais established in various
countries only exercise it by virtue of express provisions.

So far as the French Conseil d'État is concerned, the concept of
détournement de pouvoir is a theory of historical growth due to the
rôle which the Conseil has played in French life, to its structure, to
its functions and, above all, to the successive extensions of its
competence due to its power to build up a veritable case law 1, Even
in France, resort to the theory is in general less frequent.

A writer, Professor Jean de Soto, in an article entitled “Recours
pour excès de pouvoir et interventionnisme économique”, published in
the Collection “Conseil d'État, Etudes et Documents”, 1952, No. 6,
pages 77-78, seeks to explain this fact:

“\.. What is the explanation for this disaffection with regard to
détournement de pouvoir ? Perhaps a certain disillusionment, for a
form of control of this sort may seem deceptive... Above all, no
doubt, administrative tribunals have thought that by themselves
precisely determining the special purpose which professional and
economic authorities should have in mind in forming their decisions
in respect of their every act, they were adjudicating upon matters
outside their ken and that their official assertions with regard to the
ultimate purpose might endanger their prestige in the eyes of the
public ; it should be added that it was not always easy to ascertain
this ultimate purpose and that the necessary experience was often
lacking for the forming of any sure opinion.”

However that may be, when, as a result of the development of
the French institution of the Conseil d’ Etat, certain countries desired
to establish Councils on the French model, ‘they deemed it necessary
to crystallize the case law which had been developed by the Conseil
d’État over a century and a half, by conferring on their new Coun-
cils a jurisdiction which was at once wide and well-defined, in order
to avoid the incoherence and uncertainty involved in the building
up of a case law, the direction of which was in any event unsure, and
in order to avoid any resistance on the part of the Administration
or any conflicts with it.

By way of examples of such texts, which are to be found in many
countries in Europe, I shall content myself with citing Article 22
of the Greek Law of December 22nd, 1928; Articles rr and 23 of the
Turkish Law of December 26th, 1938; Article 9 of the Belgian Law
of December 23rd, 1946; Article 33 of the Treaty establishing the
European Coal and Steel Community of April 18th, 1951 (cf.
Article 3 of the Egyptian Law No. 9 of 1949, amending Law No. 112
of 1946 which brought the Conseil d’Etat into being). (See Annex.)

1 Cf. an article by President Josse, in the Livre jubilaive du Conseil d'État pour
commémorer son r50me anniversaire, 1949. See also an article by Professor Pierre
Lampué, published in the Revue internationale des Sciences administratives, 1954,
p. 383.

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DISS. OPIN. OF VICE-PRES BADAWI (OPIN. 23 X 56) 134

These provisions which recognize the doctrine of détournement de
pouvoir entrust the necessary judicial control to the Conseil d'État
or to the Court of the Community.

If these various laws have considered it necessary to make express
provision for détournement de pouvoir as an element of jurisdiction
and not as a substantive rule, that is because such a ground of
appeal cannot be regarded as automatic and because it is nota
necessary consequence of the general power of annulment conferred
on Conseils d'État. This form of appeal in fact relates to the exercise
of the discretionary power of the Administration, and it involves,
independently of judicial control over the interpretation and
application of legislative provisions and regulations, a searching
enquiry into the purpose of such provisions and into the way in
which that purpose has been circumvented or disregarded, as well
as an enquiry into the reason for the misuse of the power.

There are indeed two possibilities: either in the absence of a
provision conferring special competence in respect of détournement
or abus de pouvoir, these Conseils d’État may exercise such a special
competence by virtue of their general power of annulment for
breach of the law, in which case it may be asked why, in framing
the Statutes establishing the Conseils, it was considered necessary
to make provision for such special competence, ov such provision
was necessary and without it the Conseils could not exercise the
power in question. It is the second of these alternatives which
clearly must be accepted.

The seriousness of such interference in administrative matters
and of the substitution of the views of courts for those of respons-
ible administrators clearly militates against the presumption that
such a power can be deemed to be included within the normal
concept of the interpretation and application of laws and regula-
tions. Accordingly, apart from the case of the French Conseil d’ Etat,
which in the course of the development of its case law over a period
of more than 150 years has elaborated so many theories which
constitute the foundations of that unwritten law, administrative
law, an express provision has always beeri considered necessary.

But the jurisdiction of the administrative tribunals of inter-
national organizations is in no way comparable to that of the
various national judicial systems which include a body of the
Conseil d’Etat type. No one will dispute that the jurisdiction of the
Tribunal, as defined by Article II of its Statute, is a limited juris-
diction and that it is restricted to questions of non-observance of
terms of appointment and of the Staff Regulations. It is this very
restriction which provides the raison d’être for the procedure for
requesting an advisory opinion of the Court, which is provided for
by Article XII of the Statute of the Tribunal.

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 135

* *

Might it nevertheless be considered that since it is not a tribunal
deciding as between States, in which case a restrictive interpreta-
tion will be necessary as a result of the principle of the sovereignty
of States, the jurisdiction of the Tribunal of the International
Labour Organisation should be liberally interpreted on the basis
of the Charter and of the modern tendencies to provide certain
guarantees for the status of officials, or that it should be interpreted
in such a way as to provide security for the international civil
service?

It is clear that the constitution of the Tribunal, even with its
limited competence (compétence d'attribution) reflects these tenden-
cies. It would then be necessary to determine at what point such a
liberal interpretation should cease in order not to bring about a
change in the character of the Tribunal, altering it from a tribunal
with a limited competence to one having full administrative juris-
diction including powers of annulment in cases of détournement
de pouvoir. Such a liberal or extensive interpretation would not thus
lead to any precise conclusion. .

Such a liberal or extensive interpretation is the less acceptable
in the present case in that the jurisdiction of the Administrative
Tribunal of the International Labour Organisation, so far as the
staff of Unesco are concerned, is the result of an agreement between
the latter Organization and the International Labour Organisation
under which the former is entitled to rely on the precise limits to
the jurisdiction as defined in Article II, paragraph 5, of the Tribu-
nal’s Statute.

Moreover, it is difficult to conceive that, in the case of a tribunal
starting out without any traditions and whose only function is to
ensure respect for the contracts and the status of a civil service in
the process of formation, it can have been the intention to grant it
powers as wide as those which may be involved by the concept of
détournement de pouvoir in relation to administrative heads (the
Secretary-General or Director-General), subject to the hierarchical
control of higher bodies (in this case, the Executive Board and the
General Conference of Unesco) and acting on the instructions or
with the agreement of those bodies.

It is true that in the days of the League of Nations M. Albert
Thomas suggested the establishment of an administrative tribunal
on the model of the French Conseil d’État. But after this suggestion,
and: before its implementation, the question passed through a
number of committees which did not proceed on the basis of this
idea. It is not therefore possible to place reliance on administrative
decisions or on the administrative law of the various countries in an
effort to attribute to the administrative tribunals of international
organizations the same powers as are enjoyed by national legal
systems.

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DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 136

The fact that the Tribunal was called an administrative tribunal
does not automatically confer upon it the powers of Conseils d’ Etat
in various countries. The Tribunal is “administrative” because it
has no powers beyond those which relate to the administration
and the officials. By reason of this intrinsic character, it is nothing
more than a judicial organ with limited powers which it must
exercise in the same way as any other judicial tribunal, that is to
say, it must interpret and apply the terms of appointment of officials
and the provisions of the Staff Regulations. The Tribunal itself
said so in the sixth paragraph of the section of the Judgment devoted
to competence.

An entirely different matter is the judicial control of the discre-
tionary exercise of the powers of the Administration; this is a
quite special matter which can only appertain to a type of court
which bears the same relationship to the Administration as do the
Conseils d’Etat in the various countries which have adopted that
institution,

In fact, the duality of their functions as an advisory body and
as a court having jurisdiction to annul decisions, in the words of
MM. Puget and Maleville, in a study on the “Revision des décisions
administratives sur recours des administrés”, undertaken by the
Institut international des Sciences administratives for the United
Nations (1953), “effects a conciliation which is perhaps illogical
but certainly felicitous between the contradictory necessities of
keeping the administrative judge apart from the power to decide
issues in the continual activity and operation of departments and
of allowing him to plunge constantly into the realities of adminis-
trative tasks... This duality ensures that he is at all times in close
contact with living realities, and it is favourable to flexibility and
progress. It is to the benefit both of those who administer and those
who are administered.”

There is not only this duality of the functions of the Conseil
d'État as a basis for the extension of its competence and of its
control penetrating to the acts of the Administration, but as a basis
for this extension and control there is also the duality of a judicial
jurisdiction and an administrative jurisdiction: the former limited
to the interpretation and application of existing texts, the latter
developing administrative law, to a great extent unwritten law,
particularly from the point of view of its general principles.

The case of the Administrative Tribunal of the International
Labour Organisation is, however, something quite different from a
Conseil d’Etat. It is an exclusively judicial tribunal, although
administrative in name. There is not here, therefore, any duality
of function or of jurisdiction.

The difference between the Tribunal and a Conseil d’Etat is
fundamental, and it cannot be otherwise both as regards the
atmosphere in which the Tribunal exercises its jurisdiction and as

63
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 137

regards the complex conditions of the functioning of international
organizations.

As justification for the extraordinary powers which international
administrative tribunals claim to possess, one of the defenders of
the system, Professor Georges Langrod, speaking of the Adminis-
trative Tribunal of the United Nations, said: ‘“The Administrative
Tribunal, that newborn judicial body, with limited jurisdiction and
without direct traditions on the inter-governmental plane, should
not only impose its authority in the face of repeated attempts to
cast doubt on the character of res judicata of its judgments, that is,
undertake a mission of a ‘pedagogical’ order, but it should go
farther—in view of the meagreness, so far as substance is concerned,
and of the endless fluctuation, so far as the form of the internal
law of the United Nations is concerned—and bring about, almost
ab nthilo, a real body of case law, as did the Roman praetor.”
(Rivista di Dtritio Internazionale, 1954, p. 245.) The author of
these words fails to indicate the legal provisions or the authority
which would justify such an extended and praetorian power of
administrative tribunals. This conception of the powers of adminis-
trative tribunals is obviously without any foundation. The present
state of international administrative law provides no sanction or

authority therefor.

*
* *

Other arguments have been invoked in order to justify the
competence of the Administrative Tribunal of the International
Labour Organisation to exercise a judicial control over the dis-
cretionary powers of the Director-General, such as the statistics
of fixed-term appointments, the special features of such appoint-
ments, the general (but by no means absolute) practice that
they are renewed 1, the necessity of ensuring stability and security
within the international civil service. These are extra-legal, I
might even say political, considerations. International organizations
have an undoubted interest in settling these questions by general
measures and have more effective means of dealing with them
than administrative tribunals, dealing with individual cases, can
possibly have. |

%
* *

In support of the jurisdiction of the Administrative Tribunal
of the International Labour Organisation, decisions of other
administrative tribunals have been cited, in particular:

1 There was no examination by the Court nor discussion before the Administrative
Tribunal of the precise scope of this practice or of the facts relevant thereto,
namely, the part played in the formation of the practice by the examination in each
individual case of the need for the services of the official and his having achieved
the necessary standards (of efficiency, competence and integrity). In any event,
while it is always desirable in interpreting texts not to have regard only to the
letter of the provision but to bear in mind the spirit of the texts, this so-called
practice cannot be assimilated to the spirit of the provisions of the Staff Regulations.

64
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 138

1. Howrani v. Secretary-General of the United Nations, Judg-
ment No. 4—September 14th, 1951.

2. Robinson v. Secretary-General of the United Nations, Judg-
ment No. 15—April 11th, 1952.

3. Kergall v. European Coal and Steel Community—July 18th, ‘
1955.

Without examining these judgments in detail, it may be pointed
out that none of these judgments adopted the doctrine of détowr-
nement de pouvoir as openly as the four judgments now in
question.

Moreover, neither the Statutes of these Tribunals nor the Staff
Regulations of these Organizations are identical with the Statute
of the Administrative Tribunal of the International Labour
Organisation and the Staff Regulations of Unesco.

Furthermore, the instrument establishing the European Coal
and Steel Community expressly confers on the Court of the
Community the power of annulment on the ground of détournement
de pouvoir in certain cases (Art. 33) (see Annex).

Finally, it is difficult to see how the decisions of tribunals of
the same standing as the Administrative Tribunal, whose judgments
are subject to review by the Court, decisions never sanctioned by
this Court, can serve as authorities justifying the present
judgments.

It is necessary to remember in connexion with these arguments
and similar arguments referred to at the beginning of the present
Opinion that they were not relied on by the Administrative
Tribunal itself, which placed itself on an altogether different
ground, that not of a right of the official but of a wrongful act
relating to the exercise of the Director-General’s power—détour-
nement de pouvoir.

Since the task of the Court is to give an Opinion on the challenge
raised against à concrete decision of the Tribunal confirming its
competence, the Opinion should naturally relate to the grounds on
which the Tribunal held that it had jurisdiction. In general, the
Court’s rôle should not be to examine the Tribunal’s jurisdiction
and to adjudicate upon it proprio motu.

This limitation is necessary particularly in a case where the
Tribunal adopted an element of jurisdiction such as défournement
de pouvoir, which has not been conferred upon it, in the guise of a
ground for its finding on the merits.

05
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 139

The Tribunal’s judgment on the merits has thus been influenced
by this arbitrary arrogation of jurisdiction. The result is an inextri-
cable confusion between jurisdiction and merits.

The Court has several times stated that it is not called upon to
give an Opinion on the merits of the case the judgments of which
have been submitted to it, but it has at the same time sought bases
for the jurisdiction of the Tribunal other than those relied upon by
the Tribunal itself.

In upholding the jurisdiction of the Tribunal, however, on differ-
ent grounds, the Opinion of the Court cannot fail to clothe the
Tribunal’s judgment on the merits with an authority in no way
intended by the Court.

In fact, even if the Tribunal had founded its jurisdiction on the
practice with regard to fixed-term appointments, on the special
position which that practice occupies in international organizations,
on the Memorandum of July 6th, 1954, it could not, without the
assistance of détournement de pouvoir, have done otherwise than
dismiss the complaints of the officials. Keither the practice, the
legal relationship between renewal and the original contract or the
legal effects which a fixed-term appointment continues to produce
after its expiry, nor an examination of the terms of appointment or
of the Staff Regulations or of the Rules or of the Memorandum of
July 6th, would have provided the Tribunal with a basis for a right
resulting from non-observance of the terms of appointment or of the
provisions of the Staff Regulations.

The Tribunal seems to have examined all these possibilities itself.
But all it could deduce was “that an official who combines all the
necessary qualities has a legitimate expectancy (espoir légitime) of
being offered a new appointment in the position which he occupied”’.

A détournement de pouvoir alone—a special competence which it
did not possess—was able to provide the Tribunal with the bases
for its Judgment.

In the conditions in which international organizations operate,
mistakes are possible. But these mistakes, however serious they
may be, cannot justify an extension of the jurisdiction of inter-
national administrative tribunals which is contrary to their Stat-
utes, to the conditions in which they operate and to the conditions
in which international organizations operate.

The formative period through which international administra-
tion is at present passing will in due course come to an end. It is
then that it will be possible and practicable to adopt rules which
are applicable to national administrative courts. Among such rules,
that relating to détournement de pouvoir might become a part of the
law of the future. That it will is the hope expressed by Professor
F. Chiesa, in a report to the Ninth International Congress of Admin-

66
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56)  I40

istrative Sciences, 1953, which is published in the Revue inter-
nationale des Sciences administratives, 1954, n° I, page 67:

“Moreover, all administrative tribunals should be given a general
jurisdiction to control the validity of all administrative measures
taken by the United Nations and other international Organizations
in order to eliminate from the field of law all measures vitiated by
lack of competence, abus de pouvoir or breach of the regulations or
tules, as well as a jurisdiction of appraisal, a jurisdiction on the
merits, to enable the tribunals to proceed to a consideration of the
substance of the case and the law involved.”

“In the present situation, it is not yet justifiable to think of an
administrative jurisdiction, on an international level, in terms of its
definition as it is given in national legal texts. Most of the inter-
national administrative jurisdictions now in existence are confined
in their competence to litigations pertaining to international
officialdom, whereas it should be permissible to refer to a judge the
question of whether or no an organ of an international organisation
has exceeded its powers or has misused its competence within its
powers.”

But until then it is to the international legislator and not to the
administrative tribunal that the right or the duty pertains to choose
the public law doctrine (défournement de pouvoir) or the private
law doctrine (abus de droit) which the Administrative Tribunal saw
fit to include together in one of the recitals of its Judgment.

*
* *

For all these reasons, J am of opinion, so far as Question I is
concerned, that the Administrative Tribunal of the International
Labour Organisation was not competent, because the essential basis
on which it held itself competent is what it called the ‘implied
conditions” of the Director-General’s power, a postulate designed

Summary of
the article
in English
given in the
Revue

to enable it to deal with acts reserved for his discretion, in order to -

submit them to judicial review and to rescind these discretionary
administrative acts on the ground of a détournement de pouvoir.
Such a competence was not conferred upon it by Article II of its
Statute.

Question II does not arise.

The reply to Question III is that the Judgment, based on a
foundation which does not exist, are nullities.

(Signed) BADAWI.

07
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56)  I4I

Annex
Greece
Law of December 22nd, 1928.
Article 22.

“The full Council shall sit : ‘
{a) when considering applications for rescission of administrative
measures on the ground of excès de pouvoir or for breach of a law.”

Turkey
Law of December 26th, 1038.
Article II.

“The functions of the Conseil d’État include :

(4) dealing with and deciding applications and appeals in contentious
administrative matters.”

Article 23.
“The Sections du contentieux shall finally and definitively consider

the following matters:

A. Proceedings brought by those claiming to have suffered injury as
a result of acts and decisions of an administrative character
relating to questions outside the jurisdiction of judicial tribunals ;

C. Proceedings for annulment brought by those claiming to have
sufferedinjury asaresult ofactsand decisionsofan administrative
character alleged to be in conflict with the provisions of laws and
regulations, so far as their purpose and their substance are con-
cerned, and from the point of view of procedure and jurisdiction;”

Belgium
Law of December 23rd, 1946.
Chapter Il.— Judgments.

“9. The Administrative Section shall adjudicate by means of judg-
ments on claims for annulment on the ground of a defect of
procedure which is ofasubstantial character or where thesanction
for departure therefrom is annulment, on the ground of excés or
détournement de pouvoir, alleged against the acts or regulations of
the various administrative authorities or against contentious
administrative decisions.”

Egypt
Law of 1946 on the Conseil d’État, as amended in 1940.
Article 3.
“The Contentious Administrative Court is alone competent to adjudi-
cate upon the following questions and possesses unlimited jurisdiction
over these questions.
6. Appeals lodged by private persons or corporate bodies for the
rescission of final administrative decisions.
The appeals referred to under 3, 4, 5, 6 must be based on lack
of jurisdiction, on a formal defect or on a breach or erroneous
application or interpretation of laws or regulations, or on a
détournement de pouvoir.” ‘

68
DISS. OPIN. OF VICE-PRES. BADAWI (OPIN. 23 X 56) 142

Treaty establishing the European Coal and Steel Community, of April 18th, .

IQ5I

Article 33.

“The Court shall have jurisdiction over appeals by a member State or
by the Council for the annulment of decisions and recommendations
of the High Authority on the grounds of lack of legal competence,
major violations of procedure, violation of the Treaty or of any rule
of law relating to its application, or abuse of power. However, the
Court may not review the High Authority’s evaluation of the situa-
tion, based on economic facts and circumstances, which led to such
decisions or recommendations, except where the High Authority is
alleged to have abused its powers or to have clearly misinterpreted
the provisions of the Treaty or of a rule of law relating to its
application.

The enterprises, or the associations referred to in Article 48,
shall have the right of appeal on the same grounds against individual
decisions and recommendations affecting them, or against general
decisions and recommendations which they deem to involve an
abuse of power affecting them.

The appeals provided for in the first two paragraphs of the present
article must be lodged within one month from the date of noti-
fication of publication, as the case may be, of the decision or
recommendation.”

59