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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

¤ 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.