| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.11. | United Nations Administrative Tribunal |
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Application for Review of Judgement No. 333 of the
United Nations Administrative Tribunal, Advisory Opinion
Advisory Opinion 27.5.1987
[pp. 78-79 S.O. Elias] It is clear that the Court may sometimes find
itself in a strait-jacket if it follows closely the limit set in Article 11;
nevertheless, to allow the Court to raise any legal issue analogous, but not
strictly relevant, to the ones specifically asked of it by the Committee might
not always give satisfaction. A flexible procedure is, therefore, called for
which enables the Court to raise all legal issues considered by it to be
relevant and necessary for the proper disposal of the problem at issue, so long
as it satisfies the requirement of the judicial process.
A sensible way out will be for the preliminary problems arising in a given
case to be dealt with first by a tribunal of first instance and then for legal
issues to be raised later on appeal to the Administrative Tribunal in the normal
system of adjudication, which the latter would be obliged to deal with as a
court of appeal. The whole question would then turn on the judicial rather than
on the present almost non-judicial manner of the Committee on Applications for
Review. The political overtone of the Committee's deliberations would be
minimized, if not completely eliminated, because the present composition of the
Committee does not lend itself to strictly legal adjudications of issues. At
present, the framing of questions to be put to the Court is often tinged with
meta-legal conceptions of particular State Members of the Committee, which are
often reflected in the manner of the categorization of the questions to be asked
of the Court. The result has often been to make the question in the end either
irrelevant or patently obscure. The Court has accordingly been put to the
trouble of having to find out what the Committee did in fact mean by the
questions as put to it, thereby wasting judges' time and effort, before coming
round to the real issues involved in a particular case. The new procedure of
using a tribunal of first instance would entail a recast of the present Statute
of the Administrative Tribunal, inter alia, to require its members to
possess legal qualifications. The present Article 11 would in particular need to
be modified. The body operating at this level should do so as a court. For the
purpose the General Assembly might establish a study group to submit necessary
changes, which must allow appeals to the Administrative Tribunal, the functions
of which might have to be suitably modified.
[pp. 135-136 D.O. Jennings] What then is the Committee's role when
an objection to a judgement of the Tribunal comes before it? This is stated in
paragraph 2 of the same Article, namely to "decide whether or not there is
a substantial basis for the application". Presumably this means that,
provided that the application raises one or more of the valid grounds of legal
challenge set out in Article 11.1, the Committee must then decide whether the
case is important enough, and sufficiently substantiated by the evidence, to
justify being referred to the International Court of Justice. Such an assessment
is appropriate for an essentially political body like the Committee. It is more
doubtful whether it is also part of the task of the Committee to determine
whether the Applicant's objection or objections to the Tribunal's Judgement
properly fall within the particular categories of Article 11.1 in which he
himself has expressed them. That is, ultimately at least, the task of this
Court; furthermore, being an essentially juridical task and a technically
difficult one at that, it would be a curious task for a committee whose
procedures are neither judicial nor even quasi-judicial in character.
However that may be, the present questions seem to exhibit a tendency to
assume that the questions to be put to this Court should themselves be couched
in, or very nearly couched in, the language of one or more of the categories of
grounds of valid objection set out in Article 11.1. The grounds of objection,
expressed inevitably in the most general terms, have thus become in practice the
language of permissible questions to the Court. It is rather as if, to take an
analogous series of grounds of jurisdiction, an applicant to the Court's
contentious jurisdiction under paragraph 2 of Article 36 of the Court's Statute
were to assume that his case must not only fall within that provision, but that
his submissions should finally be reduced to the actual language of the famous
list in that paragraph of Article 36.
The effect of this interpretation of Article 11 is that questions are put to
this Court, not in the terms of the applicant's specific grievance, but in
abstract and conceptual terms of the list of grounds of objection in Article
11.1. This manner of proceeding can easily transform a simple grievance into a
jurisprudential problem of some complexity and doubt.
