Re International Fund for Agricultural Development (Advisory Opinion)
| Jurisdiction | Derecho Internacional |
| Judge | Skotnikov,Yusuf,Tomka,Owada,Keith,Koroma,Sepulveda-Amor,Bennouna,Xue,Greenwood,Cançado Trindade,Donoghue,Abraham |
| Date | 01 February 2012 |
| Court | International Court of Justice |
International Court of Justice.
(Owada, President;Tomka, Vice-President;Koroma, Abraham, Keith, Sepulveda-Amor, Bennouna, Skotnikov, Canado Trindade, Yusuf, Greenwood, Xue and Donoghue, Judges)
International organizations Personality Legal capacity Capacity to enter into contracts Arrangements whereby one organization hosted by another Nature of hosting arrangements Employment of staff members Global Mechanism of the United Nations Convention to Combat Desertification Arrangement for hosting by International Fund for Agricultural Development
International organizations Staff members Appeals International Labour Organization Administrative Tribunal Jurisdiction International Fund for Agricultural Development Acceptance of jurisdiction of Tribunal Whether extending to complaints brought by persons employed to work on programme of body hosted by Fund Challenges to Tribunal judgments Challenge by means of request for advisory opinion of International Court of Justice Binding character of opinion
International Court of Justice Advisory jurisdiction Scope and nature of jurisdiction Discretion of Court not to reply to request International Labour Organization Administrative Tribunal Statute of Tribunal providing for challenge to judgments of Tribunal by way of request for advisory opinion Whether contrary to principle of equality of arms Whether appropriate for Court to respond to request
Summary:2The facts:The United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (the Convention or the UNCCD) was adopted in 1994. It created a Conference of Parties (the Conference or the COP) and a Permanent Secretariat, which were expressly established as institutions and given certain powers, including to enter into contractual arrangements, and a Global Mechanism. The COP was required to conclude arrangements with an international organization that would act as host to the Global Mechanism. In 1999 the COP concluded a Memorandum of Understanding (the MOU) with the International Fund for Agricultural Development (IFAD or the Fund), a specialized agency of the United Nations, which provided that IFAD would house the Global Mechanism. Under the terms of the MOU, while the Global Mechanism was described as possessing an identity separate from IFAD, it was to be integrated into the structure of IFAD. The Managing Director of the Global Mechanism was to be appointed by, and answerable to, the President of IFAD.
In 2000, Ms Saez Garca, a national of Venezuela, was sent a letter by IFAD offering her a fixed-term appointment for a period of two years with the International Fund for Agricultural Development. The position was that of a Programme Officer with the Global Mechanism. The letter stated that her appointment would be governed by the terms set out in the IFAD personnel manual and would be terminable by notice to, or from, IFAD. The appointment was renewed on the same terms in 2002 and 2004. In December 2005, a decision was made not to renew her contract after it expired in March 2006, allegedly on the basis that the position was being abolished. Ms Saez Garca challenged that decision before the Joint Appeals Board of IFAD, which recommended that she be reinstated and awarded a payment of lost salary, allowances and entitlements.3 The President of IFAD rejected that recommendation. Ms Saez Garca then commenced proceedings against IFAD before the International Labour Organization Administrative Tribunal (ILOAT). IFAD maintained that ILOAT lacked jurisdiction, because Ms Saez Garca was employed by the Global Mechanism, not IFAD, and that IFAD's acceptance of the jurisdiction of ILOAT had not extended to complaints brought by staff members of other organizations hosted by IFAD. ILOAT dismissed the jurisdictional objection, set aside the decision of the President of IFAD and awarded Ms Saez Garca damages and costs.4
Relying upon Article XII of the Annex to the ILOAT Statute,5 IFAD submitted to the International Court of Justice a request for an advisory opinion by way of a challenge to the judgment of ILOAT. In its request IFAD submitted nine questions to the Court.6 IFAD challenged the competence of ILOAT to hear Ms Saez Garca's complaint and asked whether
various findings made by ILOAT in that case constituted an excess of jurisdiction or a fundamental fault in the procedure followedMs Saez Garca transmitted her written statements to the Court through IFAD. She referred to the one-sided procedure under Article XII, by which the organization which was the respondent in a case before ILOAT but not the staff member who was the claimant could challenge the ILOAT judgment before the International Court of Justice. She maintained that this procedure was inconsistent with modern concepts of equality of arms, and that the Court should decline the request for an advisory opinion. In response, IFAD argued that the question before the Court related not to any dispute between Ms Saez Garca and IFAD, but rather to a dispute between IFAD and ILOAT.
On the merits of the questions put to the Court, IFAD contended that Ms Saez Garca had been a staff member of the Global Mechanism and not of IFAD, and that her employment status had to be assessed in the context of the arrangement for the housing of the Global Mechanism made between IFAD and the COP. It argued that IFAD and the Global Mechanism were separate legal entities, and that ILOAT should have taken into account the consequences of this separation for its jurisdiction with respect to the complaint filed by Ms Saez Garca. Ms Saez Garca maintained that she was at the material time a staff member of IFAD and that the staff regulations and rules of IFAD applied to her. She also contended that the Managing Director of the Global Mechanism was an officer of IFAD and that, as held by ILOAT, his actions were, in law, the actions of IFAD.
Held:(1) (unanimously) The Court had jurisdiction to give the advisory opinion requested.
(a) The power of the IFAD Executive Board to request, and the jurisdiction of the Court to give, an advisory opinion were founded on the Charter of the United Nations and the Statute of the Court, and not on the Statute of ILOAT alone. Under Article 96(2) of the Charter, only those UN organs and specialized agencies which had been so authorized by the General Assembly had the power to request an advisory opinion. The 1977 Relationship Agreement between the UN and IFAD recognized the latter as a specialized agency of the UN, and authorized the IFAD Governing Council to request advisory opinions on legal questions arising within the scope of IFAD's activities, other than questions concerning the relationships between IFAD and the UN or other specialized agencies. That power was subsequently delegated by the Governing Council to the IFAD Executive Board, and the Board's 2010 request for an advisory opinion was consistent with the terms of the Relationship Agreement (paras. 1927).
(b) The scope of the Court's jurisdiction was, nevertheless, limited by the terms of Article XII of the Annex to the ILOAT Statute. Under this provision, the Court could review Judgment No 2867 on two grounds only: that the Tribunal had wrongfully confirmed its jurisdiction, or that the decision was vitiated by a fundamental fault in the procedure followed. The Court's review was not an appeal on the merits (paras. 2831).
(2) (unanimously) The Court would comply with the request for an advisory opinion.
(a) The Court had a discretion whether or not to reply to a request for an advisory opinion. In exercising that discretion, the Court had to have regard to its character, both as a principal organ of the UN and as a judicial body. While in principle a request should not normally be refused, the Court had to maintain its integrity as a judicial body (paras. 334).
(b) The Article XII procedure raised concerns regarding the principle of equality before the Court of the organization on the one hand, and the official on the other. There was inequality of access to the Court in that it was only the organization, and not the official, which could request an advisory opinion under Article XII. This contrasted with the provisions for review by the Court of judgments of the UN Administrative Tribunal, in force from 1955 to 1995. Also, the principle of equality of access to courts and tribunals had developed significantly since 1946, when the ILOAT review procedure was established. The Court saw no justification for the one-sided nature of the ILOAT provision, which favoured the employer to the disadvantage of the staff member (paras. 3644).
(c) Moreover, the organization and the staff member did not enjoy equality before the Court, since only the organization had the right to present evidence and argument. In the present case, this inequality had been substantially alleviated by procedural decisions taken by the Court, to the effect that IFAD would transmit to the Court any statements of Ms Saez Garca, and there would be no oral proceedings. While this process had not been without difficulties, by the end the Court had all the information it required, both the Fund and Ms Saez Garca had had adequate and in large measure equal opportunities to present their case, and in essence the principle of equality in proceedings before the Court had been met. As such, while concerns remained regarding inequality of access to the Court, the reasons that could lead the Court to decline to give an advisory opinion were not sufficiently compelling (paras. 458).
(3) (unanimously) ILOAT had been competent to hear the complaint against IFAD by Ms Saez Garca.
(a) The Global Mechanism lacked legal personality. While the COP and the Permanent Secretariat...
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