III. | The International Court of Justice |
5. | ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE |
5.5. | Review of Decisions of the 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. 29-30] The competence of the Court to give an advisory opinion
at the request of the Committee on Applications for Review of Administrative
Tribunal Judgements (hereinafter called "the Committee") derives
immediately from Article 11, paragraphs 1 and 2, of the Statute of the United
Nations Administrative Tribunal, which provides as follows:
"1. If a Member State, the Secretary-General or the person in respect
of whom a judgement has been rendered by the Tribunal (including any one who has
succeeded to that person's rights on his death) objects to the judgement on the
ground that the Tribunal has exceeded its jurisdiction or competence or that the
Tribunal has failed to exercise jurisdiction vested in it, or has erred on a
question of law relating to the provisions of the Charter of the United Nations,
or has committed a fundamental error in procedure which has occasioned a failure
of justice, such Member State, the Secretary-General or the person concerned
may, within thirty days from the date of the judgement, make a written
application to the Committee established by paragraph 4 of this article asking
the Committee to request an advisory opinion of the International Court of
Justice on the matter.
2. Within thirty days from the receipt of an application under paragraph I
of this article, the Committee shall decide whether or not there is a
substantial basis for the application. If the Committee decides that such a
basis exists, it shall request an advisory opinion of the Court, and the
Secretary-General shall arrange to transmit to the Court the views of the person
referred to in paragraph 1."
The fundamental text in this respect is however Article 96 of the United
Nations Charter:
"1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their
activities."
Similarly, Article 65, paragraph 1, of the Statute of the Court provides
that
"The Court may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the Charter
of the United Nations to make such a request."
In two previous advisory opinions (Application for Review of Judgement
No. 158 of the United Nations Administrative Tribunal, I.C.J. Reports 1973,
p. 166; Application for Review of Judgement No. 273 of the United Nations
Administrative Tribunal, I.C.J. Reports 1982, p. 325), the Court has
examined the question of its competence under these provisions. In one of these
cases the request for opinion originated, as in the present case, from an
application by a staff member; in the other the request originated from an
application to the Committee by a member State. In the first of those cases, the
Court concluded that
"the Committee on Applications for Review of Administrative Tribunal
Judgements is an organ of the United Nations, duly constituted under Articles 7
and 22 of the Charter, and duly authorized under Article 96, paragraph 2, of the
Charter to request advisory opinions of the Court for the purpose of Article 11
of the Statute of the United Nations Administrative Tribunal. It follows that
the Court is competent under Article 65 of its Statute to entertain a request
for an advisory opinion from the Committee made within the scope of Article 11
of the Statute of the Administrative Tribunal." (Application for Review
of Judgement No. 158 of the United Nations Administrative Tribunal, I.C.J.
Reports 1973, p. 175, para. 23.)
That conclusion presupposes that in any specific case the conditions laid
down by the Charter, the Statute, and the Statute of the Administrative Tribunal
are complied with, and in particular that a question on which the opinion of the
Court is requested is a "legal question" and one "arising within
the scope of [the] activities" of the requesting organ. The question
whether a judicial body failed to exercise jurisdiction is clearly a legal
question, as is also the question whether it erred on a question of law.
Furthermore, the questions put to the Court by the Committee in the present case
"clearly arise out of the performance of [its] primary function of
screening the applications presented to it. They are therefore questions which,
in the view of the Court, arise within the scope of the Committee's own
activities; for they arise not out of the judgements of the Administrative
Tribunal but out of objections to those judgements raised before the Committee
itself." (Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, I.C.J. Reports 1973, p. 174, para. 21.)
[pp.32-33] When a request was first made to the Court for an
advisory opinion pursuant to Article 11 of the Statute of the Administrative
Tribunal, the Court subjected the machinery established by that Article to
critical examination, in order to satisfy itself that it would be right to give
an opinion in such a case. Inspired by its own previous approach to the question
of reviewing in an advisory opinion a decision of the ILO Administrative
Tribunal, it was reluctant to "imperil the working of the régime
established by the Statute of the Administrative Tribunal for the judicial
protection of officials" and concluded that
"although the Court does not consider the review procedure provided by
Article 11 as free from difficulty, it has no doubt that, in the circumstances
of the present case, it should comply with the request by the Committee on
Applications for Review of Administrative Tribunal Judgements for an advisory
opinion" (Application for Review of Judgement No. 158 of the United
Nations Administrative Tribunal, I.C.J. Reports 1973, p. 183, para. 40).
This conclusion is qualified by a reservation as to the merits of the
procedure established by Article 11 of the Tribunal's Statute. In its 1973
Advisory Opinion the Court examined a number of criticisms addressed to this
procedure, and in particular the fact that "being composed of member
States, the Committee is a political organ", yet discharged "functions
which, in the Court's view, are normally discharged by a legal body" (I.C.J.
Reports 1973, p. 176, para. 25). Ultimately the Court however considered
that it should give an advisory opinion at the request of the Committee
established under Article 11; it noted that
"A refusal by the Court to play its role in the system of judicial
review set up by the General Assembly would only have the consequence that this
system would not operate precisely in those cases in which the Committee has
found that there is a substantial basis for the objections which have been
raised against a judgement." (Ibid., p. 177, para. 28.)
Similarly in the present case it is clear from the request made by the
Committee, from the written statements submitted to the Court by the Government
of Italy and the Government of the United States of America, and from the
statement of views of the Applicant transmitted to the Court, that objections
have been raised against Judgement No. 333, and that their examination is
appropriate to secure "the judicial protection of officials" of the
United Nations. Accordingly, while renewing reservations made in previous cases
as to the procedure established by Article 11, the Court concludes that it
should give an advisory opinion in the present case.
[p. 36] A preliminary point arises from the wording of the first
question put to the Court by the Committee, whereby the Court is asked
specifically whether the Administrative Tribunal failed to exercise jurisdiction
"by not responding to the question whether a legal impediment existed"
to the Applicant's further employment. It has been suggested that the Committee
intended the Court to take as established that the Tribunal did in fact not
respond to that question, and to give its opinion solely on the legal question
whether the Tribunal thus failed to exercise jurisdiction. This problem is one
of interpretation, in the sense that it is appropriate to ascertain what the
Committee intended to ask of the Court; but it is also one relating to the
respective competences of the Committee and of the Court. In the view of the
Court, it is in fact the latter consideration which prevails. Such a restrictive
interpretation of the Committee's question as suggested above seems prima facie
unlikely, and "It is not to be assumed" that the body requesting an
opinion of the Court "would thus seek to fetter or hamper the Court in the
discharge of its judicial functions" (Certain Expenses of the United
Nations, I.C.J. Reports 1962, p. 157). Even if such had been the intention
of the Committee, however, in the view of the Court it would nevertheless be
bound to examine the question in all its aspects: "the Court must have full
liberty to consider all relevant data available to it in forming an opinion on a
question posed to it for an advisory opinion" (ibid.). The Court cannot
therefore simply assume that the Tribunal did in fact fail to respond to the
question of the alleged legal impediment, and consider solely whether by not
doing so it failed to exercise jurisdiction.
[pp. 42-43] The Court would recall that in appropriate cases it is
entitled to look behind the strict terms of the question as presented to it. In
its Advisory Opinion concerning the Interpretation of the Agreement of 25 March
1951 between the WHO and Egypt, the Court, following the line of its earlier
jurisprudence, observed that
"if it is to remain faithful to the requirements of its judicial
character in the exercise of its advisory jurisdiction, it must ascertain what
are the legal questions really in issue in questions formulated in a request"
(I.C.J. Reports 1980, p. 88, para. 35).
The Court in that case, as to some extent also in other cases, found it
necessary to reformulate the question submitted for advisory opinion in order to
deal with "the questions really in issue". As the Court made clear in
a later case, such reformulation must remain within the limits on the powers of
the requesting body: the Court cannot, by reformulating the question put,
respond to a question which that body could not have submitted, for example
because it was not a legal question "arising within the scope of the
activities" of the requesting body. In the case concerning the Application
for Review of Judgement No. 273 of the United Nations Administrative Tribunal,
where the Court had occasion to reformulate the question put by the Committee,
it observed that its jurisdiction under Article 11 of the Tribunal's Statute is
limited to the four specific grounds of objection there specified and recalled
its previous dictum that
"Consequently, the Committee is authorized to request, and the Court to
give, an advisory opinion only on legal questions which may properly be
considered as falling within the terms of one or more of those four 'grounds'."
(Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, I.C.J. Reports 1973, p. 184, para. 41.)
In considering what questions are "really in issue", the Court
must of course have regard also to the intentions of the requesting body as they
emerge from such records as may be available of the discussions leading up to
the decision to request an opinion. This was the course which the Court followed
in 1980 in its Advisory Opinion on the Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt (I.C.J. Reports 1980, pp. 85 to 88,
paras. 28 to 34), in order to define "the true legal question submitted to
the Court" (ibid., p. 89, para. 36). In the present case, as noted above
(paragraph 22), application was made to the Committee on all four of the grounds
set out in Article 11 of the Statute of the Tribunal; and the Committee took a
formal decision on each of those grounds as a separate question. It decided that
there was no substantial basis for the Application on the ground either that the
Tribunal had exceeded its jurisdiction, or that it had committed a fundamental
error in procedure which had occasioned a failure of justice (A/AC.86/XXIV/PV.5,
pp. 2-3). The Court accordingly concludes that it is not open to it to enter
into these grounds, by reformulating the question put to it or otherwise,
because it cannot be said that it was the intention or wish of the Committee to
have an opinion of the Court on these points.
On the other hand, it was the intention of the Committee to have the opinion
of the Court on the question whether the Administrative Tribunal failed to
exercise jurisdiction vested in it, one of the four grounds of objection
contemplated by Article 11 of the Tribunal's Statute. Without going beyond the
limits of this ground, it is open to the Court to redefine the point on which it
is asserted that the Tribunal failed to exercise its jurisdiction, if this will
enable it to give guidance on "the legal questions really in issue".
It thus seems to the Court essential to examine whether the Tribunal addressed
its mind to both the questions defined at the end of the paragraph 42 of this
Opinion.
[p. 44] Similarly in the present case, the Judgement of the Tribunal
does not state specifically that it was the view of the Tribunal that, while a
fixed-term appointment on secondment cannot be renewed or extended without the
consent of the seconding Government, there is no automatic bar to the holder of
such appointment being given a career appointment on its expiration. Nor does
the Tribunal ever specifically reject or uphold the contention that the
Secretary-General, because he was convinced that there was such a bar, could not
have given "every reasonable consideration" to the Applicant's
application for appointment. If however it can be established with sufficient
certainty that "the Tribunal addressed its mind" to the matters on
which these contentions were based, "and drew its own conclusions therefrom",
then, whatever view be taken of the conclusion reached by the Tribunal on the
evidence available, there was no failure to exercise jurisdiction in that
respect.
[p. 45] In order to interpret or elucidate a judgement it is both
permissible and advisable to take into account any dissenting or other opinions
appended to the judgement. Declarations or opinions drafted by members of a
tribunal at the time of a decision, and appended thereto, may contribute to the
clarification of the decision. Accordingly the wise practice of the Tribunal,
following the example of the Court itself, has been not only to permit such
expressions of opinion but to publish them appended to the judgement. It is
therefore proper in the present case, in order better to grasp the position of
the Tribunal on the point now under examination, to refer not only to the
Judgement itself, but also to the "Statement" of Mr. Endre Ustor and
the dissenting opinion of Mr. Arnold Kean.
[p. 52] In the statement of his views transmitted to the Court the
Applicant has expressed his objections to the Judgement of the Tribunal in terms
of "principles" of the Charter rather than as breaches of specific
provisions; he contends that "a failure [by the Tribunal] to reconcile its
conclusions with principles of the Charter constitutes no less of an error of
law than an erroneous interpretation of a Charter provision". In the view
of the Court, however, there was good reason for the wording chosen for the
relevant passage in Article 11 of the Tribunal's Statute, referring to an error
on "a question of law relating to the provisions of the Charter". A
claim of error of law in a Judgement of the Tribunal based on alleged lack of
respect for principles, without reference to any specific texts, might well
serve as a cover for a generalized attack on the merits of the Tribunal's
decision, and an invitation to the Court to "retry the case and to attempt
to substitute its own opinion on the merits for that of the Tribunal" (I.C.J.
Reports 1982, p. 356, para. 58), which the Court has declared is not its
proper role.
[p. 63] It is clear that the expression "the paramount
consideration" (in French, la consideration dominante) in Article 101 of
the Charter is not synonymous with "the sole consideration"; it is
simply a consideration to which greater weight is normally to be given than to
any other. Nor does it mean that "efficiency, competence and integrity"
together constitute a sufficient consideration, in the sense that a high enough
standard of each gives rise to an entitlement to appointment. It is also clear,
since paragraph 1 of the Article provides that "The staff shall be
appointed by the Secretary-General under regulations established by the General
Assembly", that the task of balancing the various considerations, in cases
where they incline in different directions, is for the Secretary-General,
subject to any general directions which might be given to him by the General
Assembly. Resolution 37/126 itself constitutes such a direction, and one which
operated in favour of the Applicant as compared with any outside candidate, or
one without his record of more than "five years' continuing good service".
Both on this basis, and on the basis of Article 101, paragraph 3, of the
Charter, it is material to observe that the Applicant's efficiency and
competence were highly spoken of by his superiors. The Tribunal did not make any
finding reflecting on his integrity; it did however discuss the consequences of
a change of nationality by a staff member in another connection to be considered
below.
The decision was that of the Secretary-General; and it was not for the
Tribunal, nor indeed for the Court, to substitute its own appreciation of the
problem for that of the Secretary-General. The Court could only find that the
Tribunal had in this respect "erred on a question of law relating to the
provisions of the Charter" if it found that the Tribunal had upheld a
decision of the Secretary-General which could not be reconciled with the
relevant article of the Charter. That does not appear to the Court to be the
case. The decision of the Secretary-General cannot be said to have failed to
respect the "paramount" character of the considerations mentioned in
Article 101, paragraph 3, simply because he took into account "all the
circumstances" enumerated in his Answer (paragraph 80 above) in order to
give effect to "the interests of the Organization".
[p. 66] It is the Judgement of the Tribunal, not the action of the
Secretary-General giving rise to the application to the Tribunal, which has to
be reviewed by the Court; and it is the Court's duty to point out any error "on
a question of law relating to the provisions of the Charter" in a judgement
of the Tribunal referred to it on that ground, whether or not such error
affected the disposal of the case. This is clear from the wording of Article 11
of the Tribunal's Statute: it is only where what is alleged is "a
fundamental error in procedure" - the fourth ground specified in that
Article - that there exists the additional requirement that that error should
have "occasioned a failure of justice". The other errors mentioned
therefore constitute grounds of objection in themselves, regardless of their
impact on the operative part of the Tribunal's decision.
Having considered the passage in question carefully, the Court is however
unable to find that the Tribunal there committed an error of law "relating
to the provisions of the Charter". The question is of course not whether
the Judgement in the Fischman case contained such an error, but whether the
reasoning of the Tribunal in Judgement No. 333, in support of which it quoted
its decision in the earlier case, erred on such a question of law. The
Secretary-General had in effect argued that the retention of the Applicant in
service notwithstanding his severance of his ties with his own government did
not imply that a "new contractual relationship" had come into
existence. For the Secretary-General, the change of nationality was an act
having no specific legal or administrative consequences. The Tribunal upheld the
Secretary-General's main contention, but at the same time pointed out that,
according to one view, the change of nationality was not necessarily such an
act, but one which in some circumstances "may adversely affect the
interests of the United Nations" (ST/AFS/SER.A/238 quoted in the Judgement
in the Fischman case). This is very far from saying that a change or attempted
change of nationality may be treated as a factor outweighing the "paramount"
consideration defined by Article 101, paragraph 3, of the Charter, which is what
the Applicant accuses the Secretary-General of having done.
[pp. 113-114 D.O. Schwebel] The terms of Article 11 of the Statute
of the Tribunal, as well as its travaux préparatoires, make clear that an
error of law "relating to" provisions of the United Nations Charter
need not squarely and directly engage a provision of the Charter. It is
sufficient if such an error is "in relationship to" the Charter, "has
reference to" the Charter, or "is connected with" the Charter.
[p. 114 D.O. Schwebel] When the Secretary-General fails to apply a
provision of a resolution binding upon him which the General Assembly has
adopted in pursuance of its authority under Article 101, paragraph 1, of the
Charter, which provides that, "The staff shall be appointed by the
Secretary-General under regulations established by the General Assembly",
and when the Administrative Tribunal omits to recognize that failure - and
consequently accepts a failure to apply the governing regulation - the Tribunal
errs on a question of law "relating to" the Charter. That is exactly
the instant case. It is exactly the kind of case which the General Assembly had
in mind when it adopted Article 11 of the Statute of the Administrative
Tribunal, as the foregoing quotations from the travaux préparatoires
show.
[p. 122 D.O. Schwebel] But since the Court, as the Court
acknowledges, is obliged to assign error relating to a Charter provision
regardless of its impact on the operative part of the Tribunal's decision, and
whether or not it "has occasioned a failure of justice", the Court
should have held that, in this respect, the Administrative Tribunal erred on a
question of law relating to a provision of the Charter. The Court's failure to
do so is the more regrettable in view of the importance of upholding a principle
of the Charter which is vital to the maintenance of the independence and
exclusively international responsibility of the Secretariat.
[pp. 140-141 D.O. Jennings] The relevant provisions of the Charter
are to be found in Chapter XV, and in Articles 100 and 101; but these Charter
provisions lay down general principles. They are not expressed in self-executing
language, but need to be implemented by the Staff Regulations and Rules, and
indeed by the jurisprudence of the Administrative Tribunals acting under the
terms of their statutes. Moreover it is clear from the preparatory work of the
UNAT Statute that
"The words 'relating to the provisions of the Charter' covered not only
interpretations of the provisions of the Charter but also the interpretation or
application of staff regulations deriving from Chapter XV of the Charter"
(statement on behalf of the sponsors of the text; see A/AC.78/SR.10, p.
3, and also I.C.J. Reports 1982, p. 469).
There must also be included in this corpus of applicable law the General
Assembly's decision in paragraph 5, section IV, of resolution 37/126, which the
Respondent acknowledges to have been binding on him at the material time. The
question is, therefore, whether the Tribunal in its Judgement No. 333, erred in
interpreting and/or applying the relevant parts of this body of law to the facts
of the present case? In so adjudging the Court is entitled to render an opinion
which "is to have a conclusive effect with regard to matters in litigation
in that case" before the Administrative Tribunal (I.C.J. Reports 1973,
p. 182, para. 39).
[pp. 172-173 D.O. Evensen] There may exist an inherent conflict
between the provisions in Article 100 of the United Nations Charter on the
independence and integrity of the Secretariat and the practice of secondment if
the principle of secondment is too rigidly applied. At least in cases of career
appointments, lack of secondment cannot constitute a legal impediment for
further employment in the United Nations. In my opinion, it must also be open to
a staff member, whose appointment is based on a contract of secondment, to apply
for a new stint in the Secretariat on the basis of a career contract.
In view of the foregoing, I find that the Administrative Tribunal in its
Judgement No. 333 of 8 June 1984 erred on questions of law relating to
provisions of the Charter of the United Nations. It erred in acquiescing in the
Secretary-General's apparent failure to apply regulations binding upon him under
Article 101, paragraph 1, of the Charter. It erred in not finding that the
administrative measures taken against Mr. Yakimetz were inconsistent with
Article 100 of the Charter. And it erred under Article 101, paragraph 3, of the
Charter in treating government consent to Secretariat appointments as a
paramount consideration.
[p. 82 S.O. Elias] One can hardly escape the feeling that the
criticism that the Administrative Tribunal has too easily accepted the decision
of the Secretary-General in approving the exercise of his discretion seems to
imply that the Tribunal, and even this Court, should substitute its own
discretion for that of the Secretary-General in concluding that the Applicant's
employment should not be renewed. This would of course amount to requiring the
Court to go into the merits of the entire case under the guise of the review
asked of it under the present Statute. As we have pointed out earlier in this
opinion the Court should not do that. In Application for Review of Judgement No.
273 of the United Nations Administrative Tribunal (I.C.J. Reports 1982,
p. 356, para. 58), the Court warns against the procedure when it said that its
proper role in the review proceedings is not to retry the case or "to
attempt to substitute its own opinion on the merits for that of the Tribunal".
The Court, therefore, has no other choice than to affirm the judgement of
the Administrative Tribunal and to answer the two questions put to it by the
Committee in the negative.
[p. 107 S.O. Ago] I must say that I have always felt some
dissatisfaction - although no more in the case now in question than in previous
ones - whenever the Court has been called upon to give an opinion in the context
of proceedings for review of a decision of the United Nations Administrative
Tribunal or of other similar tribunals. This is because such requests, or so I
cannot help feeling, place the Court in an uncomfortable position. It is, so to
speak, caught between two conflicting requirements. On the one hand, it must
scrupulously avoid the temptation to carry out any of the functions which might
be proper to an administrative appeal court, but which would be wholly
incompatible with its nature as the supreme judicial organ of the United
Nations, whose role is to settle international legal disputes between States. On
the other hand, given the narrow limits to which its powers of appraisal in such
cases are confined - and quite rightly, let me hasten to say - by the governing
texts, including the Statute of the United Nations Administrative Tribunal, it
can scarcely be denied that the Court has very little scope for exercising any
decisive concrete influence in the interest of ensuring that administrative
justice is genuinely done.
That something had to be done to counteract the drawbacks which might result
from the decisions of the Administrative Tribunal, established in order to
ensure observance of the law in the mutual relations between the United Nations
administration and its staff, was clear from the outset to those responsible for
setting up this essential judicial body. This was the reason why a review
procedure was devised and put into operation. But it may be wondered whether
this procedure, which is undeniably complex, requiring as it does the successive
and combined intervention of two high-level bodies, is the most appropriate one
for the particular ends in view. Under this system, the forum which is
immediately available to an individual considering himself injured by a
judgement of the Administrative Tribunal is the Committee on Applications for
Review of Administrative Tribunal Judgements. The members of this Committee are
the representatives of all the member States on the General Committee of the
most recent regular session of the General Assembly. This extremely broad
composition, and the type of procedure followed by the Committee in reaching its
decisions, do not correspond very closely to the sort of composition and
procedure one expects of a body entrusted with judicial functions. And yet the
functions entrusted to it are certainly judicial, or at least quasi-judicial. It
has to (a) sift and examine the applications received for review of judgements
of the Administrative Tribunal; (b) decide whether or not there is a "substantial
basis" for each application; (c) select, among the various grounds for
review laid down in the Statute of the Administrative Tribunal, those which it
considers applicable to the case in hand, thereby taking the responsibility of
excluding the others outright; (d) request, in such cases, an advisory opinion
of the International Court of Justice on the grounds not rejected. Moreover, the
competence bestowed upon the Court for the rendering of an advisory opinion to
that Committee following such a request is necessarily confined to certain
clearly-defined legal aspects, and nobody anxious to avoid distorting the
Court's proper functions would seriously contemplate widening these limits. Then
again, I leave unuttered all that might be said about the, to say the least,
curious aspects, in legal logic, of a procedure which consists of requesting a
tribunal to rule by means of an advisory opinion upon a decision handed down by
another tribunal.
[p. 89 S.O. Oda] As the Statute of UNAT provides that an advisory
opinion may be sought of the Court because of the objection of a staff member to
the Tribunal's judgement on four grounds, including ground III that "the
Tribunal ... has erred on a question of law relating to the provisions of the
Charter of the United Nations" (Art. 11 (1)), I would suggest that the
Court is expected in this case to function in substance similarly to an
appellate court vis-à-vis UNAT, to review the actual substance of the
Secretary-General's decision and, if necessary, to substitute its own opinion on
the merits for that of UNAT.
[pp. 117-118 D.O. Schwebel] In view of the terms of the Tribunal's
Statute and the foregoing intentions of its draftsmen, and in view of the
Court's proper holding that it may examine "in full liberty the facts of
the case" and check "the Tribunal's appreciation of the facts" (I.C.J.
Reports 1973, p. 207, para. 85), I believe that today's opinion of the
Court, and previous opinions to like effect, are on weak ground when they
shelter behind the conclusion that, "the Court's proper role is not to
retry the case and to attempt to substitute its own opinion on the merits for
that of the Tribunal" (I.C.J. Reports 1982, p. 356, para. 58,
adopted in this opinion in paras. 27 and 89). On the contrary, the Court, when
seised of a case of this kind, exercises "judicial review... The opinion of
the Court is to be given a reformatory character." Since an objection on
the ground that the Tribunal has erred on a question of law relating to a
provision of the Charter "relates not to the validity of the judgment but
to the merits of the judgment" of the Tribunal, this ground affords the
Court "true appellate jurisdiction" (Leo Gross, "Participation of
Individuals in Advisory Proceedings before the International Court of Justice:
Question of Equality between the Parties", 52 American Journal of
International Law (1958), p. 36.)
This is the conclusion which Judge Oda, in his separate opinion, and which
I, in my dissenting opinion, reached in 1982 in the Mortished case, after an
examination of the drafting history of Article 11 of the Statute of the
Administrative Tribunal; it remains correct today (see I.C.J. Reports 1982,
pp. 393-397,468-470,471, and Judge Oda's separate opinion in the current case,
paras. 14-18). It is fully justified by the intent of the General Assembly in
adopting Article 11 of the Statute of the Administrative Tribunal, as that
intent is shown by the quotations from the travaux préparatoires set out
above and in the cited Mortished opinions. In such a case, the Court is entitled
- if not required - to substitute its opinion for that of the Tribunal on the
merits; and both the Secretary-General and the Tribunal are bound to conform
their judgments to the Court's opinion. What is at issue in the Yakimetz case is
the Administrative Tribunal's "interpretation or application" - or
misinterpretation or misapplication - "of staff regulations deriving from
Chapter XV of the Charter", an issue explicitly declared by the drafters of
Article 11 of the Statute to be within the Court's competence. The Court is
fully empowered to give an opinion on the merits of that issue. Its failure to
do so constitutes a failure to exercise a responsibility validly entrusted to it
by the General Assembly.