court: icj

doctype: dom

caseName: Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America)

decisionType: judgment

procedure: Preliminary question

publisher: International Court of Justice

reportsCitation: I.C.J. Reports 1954, p. 19

title: Judgment of 15 June 1954

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: 1954 June 15th

type: stycke

text: General List :

text: No. 1g

text: CASE OF THE MONETARY GBLD REMOVED FROM ROME IN 1943

text: (PRELIMINARY QUESTION) (ITALY v. FRANCE, UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND UNITED STATES OF AMERICA)

text: Part I I I of Agreement of Paris of 1946 on Reparation.--Washington Agreement of 1951 for arbitration.-Washington Statement accompanying Washington Agreement.-Italy's Application : claim to gold and claim of priority ocer claim of United Kingdom.-Preliminary Question fikd by Applicant.-Efject on Application of Italy's objection to jurisdiction.-Raising of Objection does not i m p l y non-conformity of Application with Washington Statement nor withdrawal or cancellation of Application. Parties conferred jurisdiction on Court.- Jurisdiction not coextensive with Cour2's task.-Vital issue : alleged international responsibility of Albania to Italy.-Necessity of Albania's consent.-Question of inten1ention.-Avticle 59 of Statute.-Jurisdiction conferred o n Court does not authorize i t to decide Italian claim fo gold.-Dependeme o f question of priority u p o n question of Italian claim to gold.-Court cannot decide question of priority.

text: JUDGMENT

text: Present : Vice-President GUERRERO, Acting President ; President Sir Arnold MCNAIR ; Jzedges BASDEVANT, HACKWORTH,

text: WINIARSKI, ZORICIC, KLAESTAD, BADAWI, READ, HSU Mo, LEVI CARNEIRO, ARMAND-UGON, KOJEVNIKOV; M. G. MORELLI, Judge ad hoc; Registrar L ~ P E ~ OLIVAN.

text: In the case of the Monetax-y Gold removed from Rome in 1943,

text: betw een

text: the Italian Republic, represented by : M. Casto Caruso, Italian Ambassador to the Netherlands, as Agent, assisted by : M. Tomaso Perassi, Professor of International Law of the Law Faculty of the University of Rome, as Counsel,

text: and

text: the French Repubiic, represented by :

text: M. André Gros, Professor of the Faculties of Law, Legal Adviser

text: of the Ministry for Foreign Affairs, as Agent, assisted by : M. Philippe Monod, Minister Plenipotentiary, as Counsel and Acting Agent, the United Kingdom of Great Bntain and Northern Ireland, represented by : Sir Gerald Fitzmaurice, K.C.M.G., Legal Adviser of the Foreign Office, as Agent, assisted by : Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar, as Counsel, the United States of Amenca, represented by : The Honorable Herman Phleger, Legal Adviser of the Department of State, as Agent,

text: THE COURT,

text: composed as above, hlivers the following Jzcdgment :

text: In a Statement signed by them a t Washington on Aprii 25th, 1951, the Govemments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of Arnenca, envisaging the eventuality that, in accordance with a n arbitral opinion which they were seeking, a certain'quantity of gold removed from Rome by the Germans in 1943 might be held to belong t o Albania, agreed t o deliver the gold which, in accordance with this opinion, would fall to Albania, not to Albania herself but to the United Kingdom, in partial satisfaction of the Judgment in the Corfu Channel case, delivered by this Court on December 15th, 1949B "unless within 90 days from the date of the communication of the arbitrator's opinion to Italy and Albania, either

text: (a) Albania makes an application to the International Court of Justice for the determination of the question whether it is proper that the gold, to which Albania has established a claim under Part III, should be delivered to the United Kingdom in partial satisfaction of the Corfu Channel judgment ; or ( b ) Italy makes an application to the International Court of Justice for the determination of the question whether, by reason of any right which she claims to possess as a result of the Albanian law of 13th January 1945, or under the provisions of the Italian Peace Treaty, the gold should be delivered to Italy rather than to Albania and agrees to accept the jurisdiction of the Court to determine the question whether the claim of the United Kingdom or of Italy to receive the gold should have priority, if this issue should arise." The three Governments a t the same time stated that they would accept as defendants the jurisdiction of the Court, for the purpose of the determination of such Applications by Italy or by Albania or by both. The opinion of the Arbitrator stating that the gold in question belonged in 1943 to Albania was given on February zoth, 1953. I t was communicated the same day t o the three Govemments, as well a s t o the Italian Government and t o the Albanian Govemment. The Albanian Government has made no application to the Court as provided for in paragraph (a) of the Washington Statement. On May ~ g t h , 1953, that is to Say, before the expiry of the timelimit prescribed by the Statement of the three Governments, the diplomatic representative of the Italian Republic in the Netherlands filed in the Registry of the Court a Declaration by which the Italian Government, invoking the ResoIution of Qctober rgth, 1946, of the Sècurity Council of the United Nations, accepted the

text: jurisdiction of the Court in respect of the disputes referred to under paragraph (b) of the Statement of April zgth, 1951. The Italian Government expressly gave the undertakings required by the Security Council Resolution. The same day, the diplomatic representative of the Italian Republic in the Netherlands, duly authorized by his Government, and in his capacity as Agent, filed in the Registry an Application instituting proceedings against the Governments of the French Republic, the United Kingdom and the United States of America in the matter of the disposal of the monetary gold removed from Rome. The Application contains the following Submissions : "(1) that the Governments of the French Republic, Great Britain and Northern Ireland and the United States of America should deliver to Italy any share of the monetary gold that might be due to Albania under Part III of the Paris Act of January 14th, 1946, in partial satisfaction for the damage caused to Italy by the Albanian law of January 13th, 1945 ; (2) that Italy's right to receive the said share of monetary gold must have priority over the claim of the United Kingdom to receive the gold in partial satisfaction of the Judgment in the Corfu Channel case." The Application was transmitted by the Registry t o the three defendant Governments on the same day on which it was filed, namely, May ~ g t h , 1953, and to the Albanian Government on May 20th. I t was also communicated to other States entitled t o appear before the Court, in accordance with the provisions of its Statute and Rules. Qy Order of July ~ s t , 1953, the time-limit for the filing of a Memorial by the Italian Government was fixed for November znd, 1953, and Counter-Memorials by the three respondent Governments were to be filed by March znd, 1954. On October 3oth, 1953, the Agent of the Italian Government filed in the Registry a document entitled "Preliminary Question". I n this document, he drew the attention of the Court to the fact that Submission No. I of the Application invited the Court to pass upon the international responsibility of Albania to Italy, as a result, in the view of the latter State, of the Albanian law of January 13th, 1945. He pointed out that doubts might arise as to the jurisdiction of the Court to adjudicate upon such a question without the consent of Albania and therefore presented a submission, by which the Italian Government :

text: "requests the Court to adjudicate on the Preliminary . Question of its jurisdiction to deal with the merits of the claim set forth under No. I of the Submissions of the Application submitted to the Court on May ~ g t h , 1953".

text: By Order of November 3rd, 1953, the Court, without prejudging the question of the interpretation and application of Article 62 of the

text: Rules of Court, and deeming it appropriate to give the Italian Government an opportunity to defme its position and to submit documents in support thereof, suspended the proceedings on the merits and fked two time-limits : one for the presentation of a written statement by the Italian Government and the other for the presentation by the three respondent Governments of their observations and submissions. The latter time-limit was subsequently extended by Order of January 26th, 1954. These Pleadings having been duly deposited within the prescribed time-limits, the case, in so far as the Preliminary Question was concerned, became ready for hearing on March 31st, 1954. Public hearings were held from May 10th to May ~ q t h , 1954. The Court was presided over by the Vice-President, in accordance with Article 13, paragraph 1, of the Rules, and included on the Bench M. Gaetano Morelli, Professor of International Law of the Faculty of Political Science of the University of Rome, appointed by the Italian Govemment to sit as Judge ad hoc. The Court heard the oral arguments and replies of M. Casto Caruso and M. Tomaso Perassi on behalf of the Italian Government, kpplicant ; on behalf of the Respondents, MM. André Gros and Philippe Monod for the French Govemment, and Sir Gerald Fitzmaurice and Jlr. J. E. S. Fawcett for the Cnited Kingdom Government. Mr. Herman Phleger, Agent of the Government of the Cnited States, had informed the Court that, since his Govemment did not expect to supplement its written Statement by an oral statement on the Preliminary Question, he would not be present a t the oral proceedings ; however, he remained a t the disposal of the Court. As regards the Preliminary Question, the following Submissions

text: were presented by the Parties :

text: On behalf of the Italian Government ; in the Preliminary Question itself : "For the foregoing reasons, The Italian Govemment, Having regard to the Order of July ~ s t , 1953, by the Ilce- President of the International Court of Justice, Acting President in this case, Having regard to Article 62 of the Rules of Court, Requests the Court to adjudicate on the preliminaq question of its jurkdiction to deal with the merits of the c l a h set forth under No. I of the Submissions of the Application submitted to the Court on May ~ g t h , 19 53 ;"

text: in the Statement on the Preliminary Question : "For the foregoing reasons, May it please the Court To adjudge and declare :

text: That the Statement t o accompany publication of the Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the submission t o an arbitrator of certain claims with respect to gold looted by the Germans from Rome in 1943 is not a sufficient basis upon which to found the 'urisdiction of the Court to deal with the merits of the claim set i' orth under

text: No. I of the Submissions of the Application submitted to the Court by the Govemment of the Italian Republic on May ~ g t h , 1953 ; That the Court is consequently without jurisdiction to adjudicate upon the merits of the said claim;"

text: as final Submissions at the hearing on May 13th, 1954:

text: "May it please the Court To adjudge and declare : That the Statement to accompany publication of the Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the submission t o an arbitrator of certain claims with respect to gold looted by the Germans from Rome in 1943 is not a sufficient basis upon which t o found the jurisdiction of the Court to deal with the merits of the c l a h set forth under No. I of the Submissions of the Application submitted t o the Court by the Government of the Italian Republic on May ~ g t h , 1953 ; That the Court is consequently without jurisdiction to adjudicate upon the merits of the said claim ; That the Court, whatever may be its decision on the question of jurisdiction referred t o above, is without jurisdiction to adjudicate upon the claims contained in No. I and No. 2 of the Submissions of the Government of the United Kingdom dated March 26th, 1954."

text: On behalf of the United Kingdom Government ; in the Observations and Submissions on the Preliminary Question :

text: "For the reasons given above, the United Kingdom Government, while reserving the right, if necessary, to present argument a t a later stage on the merits of the question of competence, requests the Court to find and declare : (1) that, in view of the Italian Government's Objection on the question of competence, its Application t o the Court of May ~ g t h , 1953, does not conform, or no longer conforms, to the conditions and intentions of the Tripartite Washington Statement of April 25th, 1951, and is accordingly invalid and void, so that there is

text: nation of' the question which, under the Tripartite Statement, Italy was entitled to put to the Court;

text: Alternaticely, that the action of the Italian Government in objecting to the competence of the Court amounts to a withdrawal or cancellation of its Application of May rgth, 1953, and disqualifies Italy from proceeding any further under the Tripartite Washington Statement ;

text: (2) that, in consequence, the United Kingdom is entitled by the Tripartite Washington Statement to receive a transfer of the gold in the same manner as if Italy, as well as Albania, had not applied to the Court under the relevant provisions of the Statement ;"

text: .as final Submissions a t the hearing on May 14th, 1954 : "(1) That, in view of Italy's objection on the ground of the alleged lack of competence of the Court, her Application to the Court of May ~ g t h , 1953, (a) does not conform to the conditions and intentions of the Tripartite Washington Statement of April 25th, 1951, or

text: alternatively

text: (b) has been in effect withdrawn or cancelled by Italy, and is therefore invalid and void ; (2) that Italy is, in the circumstances, to be deemed not to have made any application to the Court within the meaning and for the purposes of the Tripartite Washington Statement.

text: Alternatively

text: (3) that, if the Court holds, contrary to the contentions of the United Kingdom, that the Italian Application is still valid and subsisting, the Court has jurisdiction to determine on their merits the questions put to the Court in the Italian Application."

text: The French Government and the Government of the United States of America have not deposited formal Submissions.

text: The origin of the present case is to be found in Part I I I of the Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, signed a t Paris on January 14th, 1946. Part III, in its single Article, contains provisions relating to the restitution of monetary gold found in Germany or in third countries. I n accordance with these provisions, ail such monetary gold "shall be pooled for distribution as restitution" among the countries which can establish that a definite amount of monetary gold belonging to them "was looted by Germany or, a t any time after 12th March, 1938, was wrongfully removed into German territory". The French Republic, the United Kingdom and the United States of America, as well as Albania and other States, are signatories of the Paris Agreement ; Italy adhered to the provisions of Part I I I of the Agreement by a Protocol signed a t London on December 16th, 1947. The implementation of the provisions of Part I I I of the Paris Agreement having been entrusted to the Governments of the French Republic, the United Kingdom and the United States of America, I O these Govemments appointed a Tripartite Commission to assist them in the distribution of the pool of monetary gold. One problem, however, that of the gold of the National Bank of Albania, removed from Rome in 1943 and claimed on the basis of Part I I I of the Paris Agreement by Albania, on the one hand, and by Italy on the other, involved "disputed questions of law and fact" which neither the Tripartite Commission nor the three Govemments were in a position to resolve. In these circumstances, the three Govemments signed on April 25th, 1951, the Washington Agreement, by which they decided to submit to an arbitrator for his opinion the question whether the gold belonged to Albania or to Italy or to neither. On February zoth, 1953, in reply to the only question submitted to him, the Arbitrator gave his opinion that the gold in question belonged in 1943 to Albania, within the meaning of Part I I I of the Paris Agreement. The three Govemments signatories of the Washington Agreement of Aprilz5th, 1951, had accompanied it by a Statement of the same date in which they declared that if the finding of the Arbitrator should be in favour of Albania, "the three Powers are confronted by another question", since Italy and the United Kingdom claimed the gold for different reasons not covered by Part III of the Paris Agreement. With regard to this question, the three Govemments took a decision which is a t the root of the present case. They agreed that, if the opinion of the Arbitrator should be that Albania had "established a claim under Part I I I of the Act" to the gold in question, "they will deliver the gold to the United Kingdom in partial satisfaction of the judgment in the Corfu Channel case unless within 90 days from the date of the communication of the Arbitrator's opinion to Italy and Albania" either of the following two conditions should be fulfilled : either Albania made an application to the Court for the determination of the question whether it was proper that the gold should be delivered to the United Kingdom ; or Italy made an application to the Court for the determination of the questions whether by reason of any rights which she claimed to possess as a result of the Albanian law of January 13th, 1945, or under the provisions of the Italian Peace Treaty, the gold should be delivered to Italy rather than to Albania and whether the claim of the United Kingdom or of Italy to receive the gold should have priority, if this issue should arise. The three Govemments accepted as respondents the jurisdiction of the Court for the purpose of the determination of such applications by Italy or by Albania or by both, and undertook to conform with any deckions of the Court. Albania, which has not accepted the jurisdiction of the Court, refrained from making any application to it. Italy, in accordance with the Statement and within the prescribed time-limit, submitted a n Application to the Court in which she formulated two claims with regard to the gold, but, instead of presenting a Memorial II on the merits within the time-limit fixed for that purpose by the Court, she raised -an issue as to the Court's jurisdiction to deal with the first claim in her Application. The question of the jurisdiction of the Court was first raised in the form of a "preliminary question". As a result of the Order of November 3rd, 1953, the Italian Government submitted a written Statement on the Preliminary Question in which it put fonvard a Submission which was repeated at the end of its oral reply as its first final Submission ; in this Submission the Court 1s asked to adjudge and declare that the Washington Statement "is not a sufficient basis upon which to found the jurisdiction of the Court to deal with the merits of the claim set forth under No. I of the Submissions of the Application" ; the ground on which Italy's Submission is based is that the proceedings contemplated by the Washington Statement and instituted by Italy in conformity with the Statement are in reality directed against Albania, which is not a party to the suit.

text: At the present stage of the case the Court must adjudicate upon the validity of this Submission presented by Italy ; certain special features of the proceedings, however, make necessary a preliminary examination of the questions raised by the Submissions of the United Kingdom. Of the three respondent Governments, the Governments of the French Republic and of the United States of America, without going beyond certain general observations with regard to the solution of the questions now before the Court, expressed a desire that the Court should decide the merits of the case which had been referred to it. As regards the United Kingdom Govemment, it saw in the challenge to the Court's jurisdiction made by Italy a ground for questioning the validity of the Application. Its main Submissions seek a declaration by the Court that "(1) in view of Ital 's objection on the ground of the alleged lack cf competence o r the Court, her Application to the Court of May 19th~ 1953, ( a ) does not conform to the conditions and intentions of the Tripartite Washington Statement of April 25th, 1951, or

text: alternatively

text: (bj has been in effect withdrawn or cancelled by Italy, and is therefore invalid and void ; (2) Italy is, in the circumstances, to be deemed not to have made any application to the Court within the meaning and for the purposes of the Tripartite Washington Statement." With these Submissions of the United Kingdom there should be contrasted the last Italian Submission formulated by Counsel for the Italian Government a t the hearing on May rsth, 1954: 12

text: "That the Court, whatever may be its decision on the question of jurisdiction referred to above, is without jurisdiction to adjudicate upon the claims contained in No. I and No. 2 of the Submissions of the Government of the United Kingdom, dated March 26th, 1954."

text: In its Observations and Submissions on the Preliminary Question, the United Kingdom Govemment asked the Court to find that, in view of the Preliminary Objection raised by the Italian Govemment, the Application did not conform or no longer conformed to the conditions and intentions of the Washington Statemeiit ; that there was no longer any Application before the Court and that Italy must be considered as not having made an Application, in accordance with the conditions laid down by the Statement.. The second Submission was explicit : "(2) That, in consequence, the United Kingdom is entitled by the Tripartite Washington Statement to receive a transfer of the gold in the same manner as if Italy, as well as Albania, had not applied to the Court under the relevant provisions of the Statement."

text: This Submission threw light upon the intention of the previous Submission ; but it was not reproduced in the final Submissions, and the Court is consequently not called upon to deal with it. There remain, however, the United Kingdom's final Submissions (1) and ( z ) , of which the wording has been modified in relation to the Submissions of the United Kingdom as stated in its written Observations, though the sense and scope remain unchanged ; it is therefore reasonable to assume that the third Italian final Submission applies to the altered Submissions of the United Kingdom. The Italian Govemment contends that the Court has no jurisdiction to adjudicate upon these Submissions of the United Kingdom. The Court cannot consider itself as lacking jurisdiction to adjudicate upon the validity, withdrawal or cancellation of an application which has been submitted to it : to adjudicate upon such questions with a view to deciding upon the effect to be given to the Application falls within the purview of its judicial task. I t is indeed unusual that a State which has submitted a claim by the filing of an Application should subsequently challenge the jurisdiction of the Court to which of its own accord it has applied. In the present case it is Italy which, after having seised the Court, has raised an issue as to the Court's jurisdiction. This is, however, to be understood in the light of the circumstances of the case. The three Govemments which signed the Washington Statement made a collective offer in respect of the present proceedings, and Italy accepted that offer. I t was in that Statement that the subjectmatter of the suit was pre-determined and it was in the same Statement that the three Govemments accepted as defendants

text: 13 the jurisdiction of the C.ourt. I n these circumstances, Italy, after having taken the initial step, felt some doubt as t o whether the subject-matter of the dispute was such that the Court c o d d deal with it. She finally raised the issue in the form of a genuine Preliminary Objectio~i. Article 62 of the Rules is couched in t e m s which do not limit t o the Respondent the right to present preliminary objections. This Article does not preclude the raising of a Preliminary Objection by an Applicant in circumstances such as those in which the present case haç arisen. The Preliminary Objection of Italy is therefore not c ~ n t r a r y to the Rules or to the Statute.

text: The United Kinpdom contends that in consequence of Italy's objection to the jiirisdiction of the Court, her Application does not conform to the conditions and intentions of the \iTashington Statement. In support of this contention, the Agent of the United Kingdom Government advanced certain argriments : First, the unequivocal acceptance of the Court's jurisdiction by Italy is one of the conditions in the Washington Statement ; in view of her greliminary objection, her acceptance of jurisdiction could not be considered a s unequivocal. Second, another condition in the Washington Statement is that Italy could only make an application for the determination of certain questions ; but Italy is now suggesting that the Court should not determine those questions. Third, ucdcr the \Vashington Statement, Italy's -4pplication should be a real one ; it is not real because of her objection to jurisdiction.

text: The Court finds that Italy's acceptance of jurisdiction is one thing, while her raising of a Iegal issue on jurisdiction is quite aiiother. I t cannot be inferred from the making of the Pi-eliminary Objection that Jtaly's acceptance of jurisdiction has become less complete or less positive than was contemplated in the \tTashington Statement. She continues to hold herself out as being subject to the Court's jurisdiction in these proceedings after the raising of the Preliminary Objection a s much as she did before taking that step. The szme cor?siderations apply to her request for the determination of the questions siibmitted in her Application. She has reauested the Court t o settle the aroblem of iurisdiction before detemining those questions. This d e s not mean that she is askjng the Court ~zot to determine those questions uncier any circumstances. As to the real character of Italy's Application, the Court has only t o observe that her Application, once properly deposited, must be considered as real and as r e m a i n i n ~ real unless it is u formally withdrawn. Consequently, the Court cannot accept the contention of the United Kingdom regarding non-conformity of the Application with the conditions and intentions of the Washington Statement.

text: Nor can the Court accept the contention in final Submission No. I (b) of the United Kingdom that the Application has been in effect withdrawn or cancelled by Italy. Article 69 of the Rules deals with the case where, in the course of proceedings instituted by an Application, the Applicant informs the Court in writing that it is not going on with the proceedings ; in this event the provisions of Article 69 apply. The raising of the Preliminary Question by Italy cannot be regarded as equivalent to a discontinuance. As to the Submission that the Italian Application should be held to be "invalid and void", it is enough to state that the Application, if not invalid a t the time when it was fded, cannot subsequently have become invalid by reason of the preliminary question which Italy raised with regard to the Court's jurisdiction in this case. The Court accordin~lv finds that it has been validv seised of the Application and chat this Application, contrary t'o the submissions of the United Kingdom Government, still subsists. Therefore, the Court must now proceed to consideration of the Preliminary Objection of Italy in order to decide whether it can adjudicate upon the ments of the claims set forth in the Application.

text: The Preliminary Objection raised by Italy assumes precise form in the main Submission by which the Court is asked

text: "To adjudge and declare : That the Statement to accompany publication of the Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of Ameriea for the submission to an arbitrator of certain claims with respect to gold looted by the Germans from Rome in 1943 is not a sufficient basis upon which to found the jurisdiction of the Court to deal with the merits of the claim set forth under No. I of the Submissions of the Application submitted to the Court by the Govemment of the Italian Republic on May ~ g t h , 1953 ; That the Court is consequently without jurisdiction to adjudicate upon the merits of the said claim."

text: On the other hand, the United Kingdom Govemment, in its alternative Submission, asks the Court to adjudge and declare

text: "that, if the Court holds, contrary to the contentions of the United Kingdom, that the Italian Application is still valid and subsisting, the Court has jurisdiction to determine on their merits the questions put to the Court in the Italian Application".

text: The Italian Government, in making its Application, stated that it was relying on the provisions of paragraph (b) of the Washington Statement. The subject-matter of the suit is the same as that defined in the Statement. The Parties against whom the suit was brought, namely France, the United Kingdom and the United States of America, are those who have declared that they accept the jurisdiction of the Court for the purpose of the determination of Italy's Application. The three States have not named any other Party in the Statement "for the determination of the question" relating to Italy's claim to the delivery of the gold. The Court notes therefore that in respect of the relations between these three States and Italy the Application is in conformity with the offer made in the Washington Statement. The Governments of France, the United Kingdom and the United States of America, and the Government of Italy, by their separate and successive acts-the adoption of the Washington Statement, in the one case, and in the other case, the deposit on May ~ g t h , 1953, of the Declaration of acceptance of the jurisdiction of the Court and the filing of the Application-have referred a case to the Court within the meaning of Article 36 (1) of its Statute. They have thus conferred jurisdiction on the Court to deal with the questions submitted in the Application of the 1 talian Government . The Court must, however, examine whether this jurisdiction is CO-extensive with the task entrusted to it. The Agent of the United Kingdom Government stated during the oral proceedings that : "Albania's consent is not, in our view, necessary to the determination of the questions affecting Italy under head (b) of the Washington Statement, because the only issue raised under that head-a decision on which by the Court would be binding on the Parties to it-is the question of whether Albania's share should go to the United Kingdom or to Italy ; and both those countries, as well as the two remaining Washington Govemments, have given their consent and are before the Court."

text: This seems to be an over-simplification of the problem with which the Court is confronted. The Court is not merely called upon to Say whether the gold should be delivered to Italy or to the United Kingdom. I t is requested to determine first certain legal questions upon the solution of which depends the delivery of the gold. By the first claim in the Application the Court is requested to decide that the three respondent States "should deliver to Italy any share of the monetary gold that might be due to Albania under Part III of the Paris Act of January 14th, 1946, in partial satisfaction for the damage caused to Italy by t l y Albanian law of January 13th, 1945". The Washington Statemknt specified in advance one of the

text: 16 purposes of Italy's Application, namely, the "determination of the question whether, by reason of any right which she claims to possess as a result of the Albanian law of 13th January, 1945, or under the provisions of the Italian Peace Treaty, the gold should be delivered to Italy rather than to Albania". The Court will not deal with the Italian Peace Treaty since its provisions have not been invoked during the present proceedings. The first Submission in the Application centres around a claim by Italy against Albania, a claim to indemnification for an alleged wrong. Italy believes that she possesses a right against AIbania for the redress of an international wrong which, according to Italy, Albania has committed against her. In order, therefore, to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obligation to pay compensation to her ; and, if so, to determine also the amount of compensation. In order to decide such questions, it is necessary to determine whether the Albanian law of January q t h , 1945, was contrary to international law. In the determination of these questions-questions which relate to the lawful or unlawful character of certain actions of Albania vis-à-vis Italy-only two States, Italy and Albania, are directly interested. To go into the merits of such questions would be to decide a dispute between Italy and Albania. The Court cannot decide such a dispute without the consent of Albania. But it is not contended by any Party that Albania has given her consent in this case either expressly or by implication. To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.

text: I t has been suggested that Albania might have intervened. The provisions of Article 62 of the Statute give to a third State, which considers that it "has an interest of a legal nature which may be affected by the decision in the case", the right to request permission to intervene. I t has been contended that the inclusion of the provisioiis for intervention indicate that the Statute contemplates that proceedings may continue, notwithstanding that a third State may have an interest of a legal nature which might enable it to intervene. I t is argued that the fact that a third State, in this case Albania, may not choose to intervene should not make it impossible for the Court to give judgment on rights as between the Parties. Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albania's legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.

text: I t is also contended that any decision of the Cmrt on the questions submitted by Italy in her Applicaticm will be binding only upon Italy and the three respondent States, and not upon Albania. I t is true that, under Article 59 of the Statute, the decision of thr Court in a given case only binds the parties to it and in respect of that particular case. This rule, however, rests on the assumption that the Court is a t least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without the consent of that third State, give a decision on that issue binding upon any State, either the third State, or any of the parties before it. The Court accordingly finds that, although Italy and the three respondent States have conferred jurisdiction upon the Court, it cannot exercise this jurisdiction to adjudicate on the first claim submitted by Italy.

text: The Court will now consider wheiher it can adjudicate upon the second claim in the Italian Application. This claim, which is also based on the Washington Statement, is that "Italy's right to receive the said share of monetary gold must have priority over the claim of the United Kingdom to receive the gold in partial satisfaction of the Judgment in the Corfu Channel case". I t might seem that the second claim, unlike the first, only concerns Italy and the United Kingdom, both of whom have already accepted the jurisdiction of the Court. According to the Washington Statement, however, the question of priority between the claim of Italy and that of the United Kingdom will only arise when it has been decided that, as between Italy and Albania, the gold should go to Italy. For the words "if this issue [the issue of priorityj should arise" usrd in the Statement could only mean that the issue of priority would call for a decision o~ily if the Court had already decided that Italy had a valid claim to the gold in question against Albania, thus creating, in the minds of the three Governments, a competitive claim with the claim of the United Kingdom.

text: The dependence of the second claim upon the first is confirmed by the Italian Submission itself. When the Italian Government speaks of "Italy's right to receive the said share of monetary gold", it is not refemng to any hypothetical right : it must be refemng t o a right which it believes it possesses and which, by the first Submission in its Application, it requests the Court to uphold. This dependence is further borne out by the statements made by the Parties in the course of the written and oral proceedings. In the document deposited on October 3oth, 1953, in which the Italian Government raised the Preliminary Question, it is stated that the I 8 second question submitted in its Application will only arise in the event that the Court has decided on the merits of the first question, as requested by the Italian Government. The United Kingdom Government, in its Observations and Submissions on the Preliminary Question, also said that the priority issue could only arise if the Court went into the question of Italy's claim against Albania, and decided that in favour of Italy. At the hearings, Counsel for the Italian Government and the Agent of the United Kingdom Government both spoke in a similar vein.

text: Counsel for the Italian Government added, however, that "if the Court considers that the question of priority between the respective rights of the United Kingdom and Italy can be examined in a hypothetical form, independently of the examination of the first Italian claim, the Italian Government, for its part, would have no objection". Apart from the fact that this statement, which is conditional in form, can hardly be construed as a formal request for consideration by the Court of the second claim on a hypothetical basis, it would, in any event, constitute a new proposition which is not based on the Washington Statement and to which the respondent States have not expressed agreement. I t is evident that the Court could not act upon such a proposition.

text: The Court accordingly finds that inasmuch as it cannot adjudicate on the first Italian claim, it must refrain from examining the question of pnority between the claim of Italy and that of the United Kingdom.

text: For these reasons,

text: unanimously,

text: finds that the jurisdiction conferred upon it by the common agreement of France, the United Kingdom, the United States of America and Italy does not, in the absence of the consent of Albania, authorize it to adjudicate upon the first Submission in t,he Application of the Italian Government ;

text: by thirteen votes to one,

text: finds that it cannot adjudicate upon the second Submission in the Application of the 1 talian Government .

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this fifteenth day of June, one thousand nine hundred and fifty-four, in five copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Govemment of the Italian Republic, the Govemment of the French Republic, the Govemment of the United Kingdom of Great Britain and Northern Ireland and the Govemment of the United States of America, respectively.

text: (Signed) J. G. GUERRERO, Vice-President .

text: (Signed) J. LOPEZ OLIVAN,

text: Registrar.

text: Sir Arnold MCNAIR, President, after voting for the Judgment, made the following declaration : 1 concur in the finding of the Court that it is unable to adjudicate upon the two questions submitted to it by the Application of the Italian Government, but the reasons which have led me to this conclusion are different from those stated in the Judgment of the Court. In my opinion, there is a fundamental defect in the Application and in the constitution of these proceedings. The Court is asked to adjudicate upon an Italian claim against Albania arising out of an Albanian law of January 13th, 1945. Albania is therefore an essential respondent. But these proceedings are not brought against Albania, nor does the Application name Albania a s a respondent, although there is nothing in the Washington Statement which could preclude the Italian Govemment from making Albania a respondent. 1 cannot see how State A, desiring the Court to adjudicate upon its claim against State B, can validly seise the Court of that claim unless it makes State B a respondent to the proceedings-however many other States may be respondents.

text: Judge READ, availing himself of the right conferred on h i . by Article 57 of the Statute, appends to the Judgment a statement of his individual opinion. Judge LEVI CARNEIRO, avaiiing himself of the right conferred on him by Article 57 of the Statute, appends to the Judgment a statement of his dissenting opinion.

text: (Initialled) J. G. G. (Initialled) J. L. O.

type: avgorande


doctype: rådgivande yttrande

identifier: ICJ 21 (Advisory opinion, 1954-07-13)

caseName: Effect of Awards of Compensation Made by the United Nations Administrative Tribunal

decisionType: advisory opinion

reportsCitation: I.C.J. Reports 1954, p. 47

title: Advisory Opinion of 13 July 1954

text: INTERNATIONAL COURT O F JUSTICE

text: 1954 YEAR 1954

text: J u l y 13th General List : No. 21

text: EFFECT O F AWARDS O F COMPENSATION MADE BY T H E UNITED N A T I O N S ADMINISTRATIVE TRIBUNAL

text: Definition of first question put to the Court : its limited scope.

text: E x a m i n a t i o n of the texts u p o n wlzich the anszoer depends : Statute of the Administrative T r i b u n a l , S t n f Regulatimzs and S t a g Rules.

text: -Nature of the Tribunal.-Character and egect of its awards.-

text: Parties to the contract of service.-Parties bound by the awards.- Question of pozoer of review. Exanzination of principal arguments in favour of the view that the General lissenzbly i s entitled to refz~se to give egect to awards : provisions of Charter ; power of the Organization, and in particular of the General Assembly, to establisk a tribunal to deal with disputes between the Organization and stag meinbers ; egect of awards of this T r i b u n a l as regards the General Assembly itself ; nature and consequences of the budgetary powers of the General Assembly ; delimitation b y the General Assembly of tlze respective powers of the Secretary-General and of the T r i b u n a l ; relevance of decision of the League of N a t i o n s in 1946.

text: ADVISORY OPINION

text: Present : President Sir Arnold MCNAIR ; Vice-President GUERRERO ; Judges ALVAREZ, HACKWORTH, WINIARSKI, KLAESTAD, BADAWI, READ, HSU MO, LEVI CARNEIRO, ARMAND- UGON, KO JEVNIKOV ; Deputy-Registrar GARNIER-COIGNET.

text: AWARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54) 48

text: I n the matter of the Effect of Awards of Compensation made by the United Nations Administrative Tribunal, submitted t o the Court for advisory opinion a t the request of the General Assembly of the United Nations,

text: THE COURT,

text: composed as above,

text: gives the following Adzzisory O p i n i o n :

text: With a letter of December 16th, 1953, which was filed in the Registry on December zrst, the Secretary-General of the United Nations transmitted t o the Court a certified true copy of a Resolution of the General Assembly of the United Nations of December gth, 1953, which was in the following terms :

text: " T h e General Assembly,

text: Considering the request for a supplementary appropriation of $179,420, made by the Secretary-General in his report (A/2534) for the purpose of covering the awards made by the United Nations Administrative Tribunal in eleven cases numbered 26, and 37 to 46 inclusive, Considering the concurrence in that appropriation by the Advisory Committee on Administrative and Budgetary Questions contained in its twenty-fourth report to the eighth session of the General Assembly (A/z580), Considering, nevertheless, that important legal questions have been raised in the course of debate in the Fifth Committee with respect to that appropriation,

text: Decides

text: To submit the following legal questions to the International Court of Justice for an advisory opinion : (1) Having regard to the'statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated withoiit his assent ? (2) If the answer given by the Court to question (1) is in the affirmative, what are the principal grounds upon which the General Assembly could lawfully exercise such a right ? "

text: The letter of the Secretary-General of the United Nations with the annexed Resolution was communicated on December q t h , 1953, t o al1 States entitled to appear before the Court, in accordance with Article 66, paragraph 1, of the Statute. The Court was not sitting and the President considered that the States Members of

text: AWARDS O F ADMIK. TRIBITNAL (OPINION O F 13 VI1 54) 49 the United Nations and the International Labour Organisation were likely to be able to furnish information on the questions referred to the Court. Accordingly, the Registrar, in conformity with Article 66, paragraph 2, of the Statute, notified these States and the International Labour Organisation on January ~ q t h , 1954, that the Court was prepared t o receive written statements from them within a time-limit fixed by an Order of the same date a t March 15th, 1954. The following availed themselves of this opportunity t o present written statements : The International Labour Organisation and the Governments of France, Sweden, the Netherlands, Greece, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Philippines, Mexico, Chile, Iraq, the Republic of China, Guatemala, Turkey and Ecuador. The Governments of Canada, the Union of Soviet Socialist Republics, Yugoslavia, Czechoslovakia and Egypt, while not submitting written statements, drew attention to the .I iews expressed by their representatives in the General Assembly when the question which has given rise to the request for an Advisory Opinion was debated there. In accordance with Article 65, paragraph 2 , of the Statute, the Secretary-General of the United Nations transmitted to the Court the documents likely t o throw light upon the question. He also submitted a written statement. Public hearings were held on June ~ o t h , th, 12th and 14th, 1954, for the purpose of hearing oral statements. The following addresied the Court in the order which was decided by the President of the Court in consultation with them : Mr. C. A. Stavropoulos, Principal Director in charge of the Legal Department of the Secretariat, representing the Secretary-General of the United Nations ; The Honorable Herman Phleger, Legal -4dviser of the Department of State, representing the Government of the Cnited States of America ; M. Paul Reuter, Professor of the Faculty of Law of Paris, Assistant Legal Adviser of the Ministry for Foreign Affairs, representing the Government of the French Republic ; Professor Jean Spiropoulos, Legal Adviser of the Ministry for Foreign Affairs, representing the Hellenic Government ; The Right Honourable Sir Reginald Manningham-Buller, Q.C., M.P., Solicitor-General, representing the Government of the Cnited Kingdom of Great Britain and Korthern Ireland ; M. A. J. P . Tammes, Professor of International Law a t the University of Amsterdam, representing the Government of the Netherlands.

text: j O AWARDS O F ADMIN. TRIBUKAL (OPINION O F 13 V I 1 j4)

text: The first Question submitted to the Court is as follows : "Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent ?" This Question is strictly limited in scope. I t relates solely t o an award made by the Administrative Tribunal of the United Nations in favour of a staff member of the United Nations whose contract of service has been terminated without his assent. According to Article 2, paragraph 1, of the Statute of that Tribunal, it "shall be competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members". A comparison between this provision and the terms of the first Question submitted t o the Court shows that an award as defined by that Question must be considered as falling within the competence of the Tribunal as defined by Article 2. A claim arising out of the termination of a contract of service without the assent of the staff member must, in fact, either fall within the term "non-observance of contracts of employment", or relate to "the terms of appointment" of the staff member. The Question concerns, in other words, only awards which are made within the limits of the competence of the Tribunal as determined by Article 2. The Court does not therefore seem to be requested to express its view with regard to awards which may exceed the scope of that statutory competence.

text: In the Resolution by which the present Advisory Opinion is requested, the General Assembly refers to the request for a supplementary appropriation made in a report of the Secretary-General for the purpoçe of covering the awards made by the Administrative Tribunal in eleven cases. I t also refers to the concurrence in that appropriation by the Advisory Committee on Administrative and Budgetary Questions in its report to the General Assembly, and the first Question refers to the Statute of that Tribunal and "to any other relevant instruments and to the relevant records". I n none of these reports or relevant records is to be found any suggestion indicating that the Tribunal, when rendering its awards in those eleven cases, was not legally constituted according to the provisions of Article 3 of its Statute. In such circumstanceç the Court understands that the first Question submitted to it contemplates awards made by a properly constituted Tribunal.

text: I t is true that by this Question the Court is requested to Say whether the General Assembly has the right to refuse to give effect t o an award "on any grounds". But it is difficult to hold that the General Assembly, by inserting these words, intended to modify the meaning which naturally follows from the other terms of the Question and from the above-mentioned considerations contained in its Resolution. The Court will, however, come back to this matter later in another connection. The first Question is further limited to awards which grant compensation to a staff member, and it relates solely to awards in favour of a staff member whose contract of service has been terminated without his assent. I t does not include awards in other disputes arising out of a contract of service. The Court is requested to Say whether the General Assembly has the right to refuse to give effect to an award as defined by the Question. The term "right" must signify legal right. The Court is asked to Say whether the General Assembly is legally entitled to refuse to give effect to such awards. The Court is not called upon to express any view with regard to the particular awards which have .given rise to the present Advisory Opinion. This examination of the first Question shows that the Court is requested to consider the general and abstract question whether the General Assembly is legally entitled to refuse to give effect to an award of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence. The answer to this question depends on the provisions of the Statute of the Tribunal as adopted by the General Assembly on November q t h , 1949, and on the Staff Regulations and Rules as in force on December gth, 1953. But the Court will also take into account the amendments which were made to the Statute on the latter date. The Court will first consider whether the Tribunal is established either as a judicial body, or as an advisory organ or a mere subordinate committee of the General Assembly.

text: Article I of the Statute provides : "A Tribunal is established b y the present Statute to be known as the United Nations Administrative Tribunal." This Tribunal shall, according to Article 2, paragraph 1, "be competent to hear and pass judgment upon applications", whereupon the paragraph determines the limits of the Tribunal's competence as already mentioned above. Article 2, paragraph 3, prescribes : "In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal." Article IO contains the following provisions "2. The judgments shall be final and without appeal." "3. The judgments shall state the reasons on which they are based. ". 8

text: 52 -4WARDS O F ADMIN. TRIBUNAL (OPINION O F 1 3 VI1 54)

text: These provisions and the terminology used are evidence of the judicial nature of the Tribunal. Such terms a s "tribunal", "judgment", competence t o "pass judgment upon applications", are generally used with respect t o judicial bodies. The above-mentioned provisions of Articles 2 and IO are of a n essentially judicial character and conform with rules generally laid down in statutes or laws issued for courts of justice, such as, for instance, in the Statute of the International Court of Justice, Article 36, paragraph 6, Article 56, paragraph 1, Article 60, first sentence. They provide a striking contrast t o Staff Rule 111.1 of the United Nations, which provides : "A Joint Appeals Board is established to consider and advise the Secretary-General regarding appeals filed under the terms of Staff Regulation 11.1 by staff members serving a t Headquarters."

text: The Statute of the Administrative Tribunal contains no similar provision attributing a n advisory character t o its functions, nor does i t in a n y way limit the independence of its activity. The independence of its members is ensured b y Article 3, paragraph 5 , which provides : "No member of the Tribunal can be dismissed by the General Assembly unless the other members are of the unanimous opinion that he is unsuited for further service."

text: The original Statute, a s adopted on November 24th, 1949, contained in Article g the following provisions : "If the Tribunal finds that the application is well founded, it shall order the rescinding of the decision contested or the specific performance of the obligation invoked ; but if, in exceptional circumstances, such rescinding or specific performance is, in the opinion of the Secretary-General, impossible or inadvisable, the Tribunal shall within a period of not more than sixty days order the payment t o the applicant of compensation for the injury sustained. The applicant shall be entitled to claim compensation in lieu of rescinding of the contested decision or specific performance.. . ."

text: These provisions were amended on December gth, 1953. Article g now provides in paragraph I : "If the Tribunal finds that the application is well founded, it shall order the rescinding of the decision contested or the specific performance of the obligation invoked. At the same time the Tribunal shall fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary-General, within thirty days of the notification of the judgment, decide, in the interest of the United Nations, that the applicant shall be compensated withaut further action being taken in his case; provided that such compensation shall not exceed the equivalent of two years' net base salary of the applicant. The Tribunal may, however, in exceptional cases, when it considers it justified, order

text: 53 AWARDÇ OF ADMIN. TRIBUNAL (OPIKION OF 13 VII 54)

text: the payment of a higher indemnity. A statement of the reasons for the Tribunal's decision shall accompany each such order."

text: These provisions prescribe both in the original and in the amended text that the Tribunal shall, if it finds that the application is well founded, order the rescinding of the decision contested or the specific performance of the obligation invoked. As the power t o issue such orders to the chief administrative officer of the Organization could hardly have been conferred on an advisory organ or a subordinate committee, these provisions confirm the judicial character of the Tribunal. The amended text contains certain modifications of the Tribunal's powers and procedure, but these modifications have no bearing upon the judicial nature of its functions. This examination of the relevant provisions of the Statute shows that the Tribunal is established, not as an advisory organ or a mere subordinate committee of the General Assembly, but as an independent and truly judicial body pronouncing final judgments without appeal within the limited field of its functions.

text: According to a well-established and generally recognized principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute. I t must therefore be examined who are to be regarded as parties bound by an award of compensation made in favour of a staff member of the United Nations whose contract of service has been terminated without his assent. Such a contract of service is concluded between the staff member concerned and the Secretary-General in his capacity as the chief administrative officer of the United Nations Organization, acting on behalf of that Organization as its representative. When the Secretary-General concludes such a contract of service with a staff member, he engages the legal responsibility of the Organization, which is the juridical person on whose behalf he acts. If he terminates the contract of service without the assent of the staff member and this action results in a dispute which is referred to the Administrative Tribunal, the parties to this dispute before the Tribunal are the staff member concerned and the United Nations Organization, represented by the Secretary-General, and these parties will become bound by the judgment of the Tribunal. This judgment is, according to Article IO of the Tribunal's Statute, final and without appeal. The Statute has provided for no kind of review. As this final judgment has binding force on the United Nations Organization as the juridical person responsible for the proper observance of the contract of service, that Organization becomes legally bound to carry out the judgment and to p a y the compensation-awarded to the staff member. I t follows that the General Assembly, as an organ of the United Nations, must likewise be bound by the judgment.

text: AWARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54) 54 This view is confirmed b y express provisions in the Statute of the Administrative Tribunal. Article g in the original Statute of 1949 provided :

text: "In any case involving compensation, the amount awarded shall be fixed by the Tribunal and paid by the United Nations or, as appropriate, by the specialized agency participating under Article 12."

text: A similar provision is contained in Article 9, paragraph 3, of the amended Statute. Both provisions show t h a t the payment of a n amount of compensation awarded b y the Tribunal is a n obligation of the United Nations as a whole or, as the case may be, of the specialized agency concerned. Article 12 is based on the same legal considerations. I t provides t h a t t h e competence of the Tribunal may be extended t o any specialized agency brought into relationship with the United Nations upon the terms established b y a special agreement t o be made with each such agency b y t h e Secretary-General of the United Nations, a n d i t continues :

text: "Each such special agreement shall provide that the agency concerned shall be bound by the judgments of the Tribunal and be responsible for the payment of any compensation awarded by the

text: As mentioned above, the Statute of the Administrative Tribunal has not provided for a n y kind of review of judgments, which according t o Article IO, paragraph 2, shall be final and without appeal. This rule is similar t o the corresponding rule in the Statute of the Administrative Tribunal of the League of Nations, Article VI, paragraph 1, which equally prescribed t h a t "judgments shall be final a n d without appeal". The report of the Supervisory Commission, proposing the Statute of this Tribunal of the League of Nations, shows t h a t the omission of a n y provision for a review of judgments was deliberate. The report stated : "No provision for the revision of judgments of the Tribunal is inserted in the statute. I t is considered that, in the interests of finality and of the avoidance of vexatious pr~ceedings, the Tribunal's judgments should be final and without appeal as is provided in Article VI, paragraph 1."

text: I t is likewise the result of a deliberate decision t h a t no provision for review of the judgments of the United Nations Administrative Tribunal was inserted in the Statute of t h a t Tribunal. According t o the official records of the General Assembly, Fifth Committee meeting on November 15th, 1946, the representative of Belgium asked the rapporteur of that Committee

text: 55 AWARDS OF ADMIN. TRIBUNAL (OPINION OF 13 VII 54)

text: "whether the decisions of the administrative tribunal would be final or whether they would be subject to a revision by the General Assembly".

text: The rapporteur replied "that according to the draft Statute as prepared by the Advisoi-y Committee, there could be no appeal from the adrniniçtr t' 3 i v e tribunal. The Advisory Committee feared an adverse effect or, the morale of the staff if appeal beyond the administrative tribunal delayed the final decision in a case which had already been heard before organs within the Secretariat created for that purpore."

text: The General Assembly could, when it adopted the Statute, have. provided for means of redress, but it did not do so. Like the Assembly of the League of Nations it refrained from laying down a n y exception t o the rule conferring on the Tribunal the power t o pro-nounce final judgments without appeal. This rule contained in Article IO, paragraph 2 ; cannot however be considered as excluding the Tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered ; and the Tribunal has already exercised this. power. Such a strictly limited revision b y the Tribunal itself cannot be considered a s a n "appeal" within the meaning of that Article a n d would conform with rules generally provided in statutes or laws. issued for courts.of justice, such as for instance'in Article 61 of the Statute of the International Court of Justice.

text: Tt may be asked whether the General Assembly would in certain exceptional circumstances be legally entitled t o refuse to give effect t o awards of compensation made by the Administrative Tribunal. The first Question submitted t o the Court asks, in fact, whether t h e General Assembly has the right to refuse t o do so "on a n y grounds". When the Court defined the scope of that Question above, it arrived a t the conclusion that the Question refers only to awards of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence, and the previous observations of the Court are based upon that ground. If; however, the General Assembly, b y inserting the words "on a n y grounds", intended also to refer t o awards made in excess of the Tribunal's competence or t o any other defect which might vitiate ail award, there would arise a problem which calls for some general observations.

text: This problem would not, as has been suggested, raise the question of the nullity of arbitral awards made in the ordinary course of arbitration between States. The present Advisory Opinion deals with a different legal sit,uation. I t concerns judgments pronounced by a permanent judicial tribunal established b y the General Assembly,

text: 12 functioning under a special statute and within the organized legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General. I n order that the judgments pronounced by such a judicial tribunal could be subjected to review by any body other than the tribunal itself, it would be necessary, in the opinion of the Court, that the statute of that tribunal or some other legal instrument governing it should contain an express provision to that effect. The General Assembly has the power to amend the Statute of the Administrative Tribunal by virtue of Article I I of that Statute and to provide for means of redress by another organ. But as no such provisions are inserted in the present Statute, there is no legal ground upon which the General Assembly could proceed to review judgments already pronounced by that Tribunal. Should the General .Assembly contemplate, for dealing with future disputes, the making of some provision for the review of the awards of the Tribunal, the Court is of opinion that the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ-considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them-al1 the more so as one party to the disputes is the United Nations Organization itself.

text: The Court must now examine the principal contentions which have been put forward, in the written and in the oral statements, by the Governments that take the position that there are grounds which would justify the General Assembly in refusing t a give effect to awards of the Administrative Tribunal. The legal power of the General Assembly to establish a tribunal competent to render judgments binding on the United Nations has been challenged. Accordingly, it is necessary to consider whether the General Assembly has been given this power by the Charter. There is no express provision for the establishment of judicial bodies or organs and no indication to the contrary. However, in its Opinion-Reparntion for Injuries su8ered in the Service of the United Nations, Advisory Opinion : I.C. J. Reports 1949, p. 182-the Court said : "Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties." The Court must therefore begin by enquiring whether the provisions of the Charter concerning the relations between the staff members and the Organization imply for the Organization the power t o establish a judicial tribunal to adjudicate upon disputes arising out of the contracts of service.

text: AWARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54)

text: Under the provisions of Chapter XV of the Charter, the Secretariat, which is one of the principal organs of the United Nations, comprises the Secretary-General and the staff. The Secretary- General is appointed by the Ggneral Assembly, upon the recommendation of the Security Council, and he is "the chief administrative officer of the Organization". The staff members are "appointed by the Secretary-General under regulations established by the General Assembly". In the words of Article I ~ I (3) of the Charter, "The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity". The contracts of service between the Organization and the staff members are contained in letters of appointment. Each appointment is made subject to terms and conditions provided in the Staff Regulations and Staff Rules, together with such amendments as may be made from time to time. When the Secretariat was organized, a situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. This code consisted of the Staff Regulations established by the General Assembly, defining the fundamental rights and obligations of the staff, and the Staff Rules, made by the Secretary-General in order to implement the Staff Regulations. I t was inevitable that there would be disputes between the Organization and staff members as t o their rights and duties. The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes, and Article 105 secures for the United Nations jurisdictional immunities in national courts. I t would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.

text: I n these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and t o give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter. The existence of this capacity leads to the further enquiry as to the agency by which it may be exercised. Here, there can be no room for doubt.

text: AWARDS O F ADMIN. T R I B U N A L (OPINION O F 13 VI1 54) j8 I n Article 7 of the Charter, after naming the six principal organs, it is provided in paragraph ( 2 ) : "Such subsidiary organç as may be found necessary may be established in accordance with the present Charter."

text: Article 22 provides : "The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions."

text: Further, in Article 101, paragraph 1, the General Assembly is given power t o regulate staff relations :

text: "The Staff shall be appointed by the Secretary-General under regulations established by the General Assembly."

text: Accordingly, the Court finds t h a t the power t o establish a tribunal t o do justice between the Organization and the staff members may be exercised b y the General Assembly.

text: But t h a t does not dispose of the problem before the Court. Some of the Governments that take the position t h a t there are grounds which would justify the General Assembly in refusing t o give effect t o awards, agree that the powers of the General Assembly, and particularly its power t o establish regulations under Article 101, imply the power t o set u p a n administrative tribunal. They agree t h a t the General Assembly would be able t o establish a tribunal competent t o hear a n d decide staff grievances, t o prescribe its jurisdiction, and t o authorize it t o give a final decision, in the sense t h a t no appeal could be taken a s of right. They nevertheless contend that the implied power does not enable the General Assembly t o establish a tribunal with authority t o make decisions binding on the General Assembly itself.

text: I n the first place, it is contended that there was no need t o go so far, and that a n implied power can only be exercised t o the extent t h a t the particular measure .under consideration can be regarded a s absolutely essential. There can be no doubt t h a t the General Assembly in the exercise of its power could have set u p a tribunal without giving finality t o its judgments. I n fact, however, it decided, after long deliberation, t o invest the Tribunal with power t o render judgments which would be "final and without appeal", and which would be binding on the United Xations. The precise nature and scope of the measures by which the power of creating a tribunal was t o be exercised, was a matter for determination by the General Assembly alone.

text: 59 AWARDS OF ADMIN. TRIBUNAL (OPINION OF 13 VII 54)

text: I n the second place, it has been argued that, while an implied power of the General Assembly to establish an administrative tribunal may be both necessary and essential, nevertheless, an implied power to impose legal limitations upon the General Assembly's express Charter powers is not legally admissible.

text: I t has been contended that the General Assembly cannot, by establishing the Administrative Tribunal, divest itself of the power conferred by paragraph (1) of Article 17 of the Charter, which reads : "The General Assembly shall consider and approve the budget of the Organization."

text: This provision confers a power on the General Assembly, for the exercise of which Article 18 requires the vote of a two-thirds majority. Accordingly, the establishment of a tribunal competent to make an award of compensation t o which the General Assembly was bound to give effect would, it has been argued, contravene the provisions relating to the budgetary power. The Court is unable to accept this contention. The Court notes that Article 17 of the Charter appears in a section of Chapter IV relating to the General Assembly, which is entitled "Functions and Powers". This Article deals with a function of the General Assembly and provides for the consideration and approval by it of the budget of the Organization. Consideration of the budget is thus an act which must be performed and the same is true of its approval, for without such approval there can be no budget. But the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it ; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements. The question, therefore, to be decided by the Court is whether these obligations comprise the awards of compensation made by the Administrative Tribunal in favour of staff members. The reply to this question must be in the affirmative. The obligatory character of these awards has been established by the considerations set out above relating to the authority of res judicata and the binding effect of the judgments of this Tribunal upon the United Nations Organization. The Court therefore considers that the assignment of the budgetary function to the General Assembly cannot be regarded as conferring upon it the right to refuse to give effect to the obligation arising out of an award of the Administrative Tribunal.

text: 60 -4WARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54)

text: I t has also been contended that the implied power of the General -4ssembly to establish a tribunal cannot be carried so far as to enable the tribunal to intervene in matters falling within the province of the Secretary-General. The Court cannot accept this contention. The General Assembly could at all times limit or control the powers of the Secretary-General in staff matters, by virtue of the provisions of Article 101. Acting under powers conferred by the Charter, the General Assembly authorized the intervention of the Tribunal t o the extent that such intervention might result from the exercise of jurisdiction conferred upon the Tribunal by its Statute. Accordingly, when the Tribunal decides that particular action by the Secretary-General involves a breach of the contract of service, it is in no sense intervening in a Charter power of the Secretary- General, because the Secretary-General's legal powers in staff matters have already been limited in this respect by the General .\ssembly.

text: A similar problem is involved in the contention that the General Assembly cannot authorize and the Secretary-General cannot enter into contracts of service which are not in conformity with the Charter. The Staff Regulations are made a part of the contracts of service and No. 11.2 reads as follows : "The United Nations Administrative Tribunal çhall, under conditions prescribed in its Statute, hear and pass judgment upon applications from staff members alleging non-observance of their terms of appointment, including al1 pertinent regulations and rules." I t is contended that the incorporation, in the contracts of service, of the right to rely on the Statute of the Administrative Tribunal would conflict with the powers conferred on the .General Assembly and on the Secretary-General by the Charter. In view of the foregoing considerations, the Court cannot accept this contention. There can be no doubt that, by virtue of the terms thus incorporated in the contracts of service, and so long as the Statute of the Administrative Tribunal in its present form is in force, the staff members are entitled to resort to the Tribunal and rely on its judgments.

text: In the third placé, the view has been put fonvard that the Administrative Tribunal is a subsidiary, subordinate, or secondary organ ; and that, accordingly, the Tribunal's judgments cannot bind the General Assembly which established it. 17

text: 61 AWARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54)

text: This view assumes that, in adopting the Statute of the Administrative Tribunal, the General Assembly was establishing an organ which it deemed necessary for the performance of its own functions. But the Court cannot accept this basic assumption. The Charter does not confer judicial functions on the General Assembly and the relations between staff and Organization come within the scope of Chapter XV of the Charter. In the absence of the establishment of an Administrative Tribunal, the function of resolving disputes between staff and Organization could be discharged by the Secretary- General by virtue of the provisions of Articles 97 and 101. Accordingly, in the three years or more preceding the establishment of the Administrative Tribunal, the Secretary-General coped with this problem by means of joint administrative machinery, leading t o ultimate decision by himself. By establishing the Administrative Tribunal, the General Assembly \vas not delegating the performance of its own functions : it was exercising a power which it had under the Charter to regulate staff relations. In regard to the Secretariat, the General Assembly is given by the Charter a power to make regulations, but not a power to adjudicate upon, or othenvise deal with, particular instances. I t has been argued that an authority exercising a power to make regulations is inherently incapable of creating a subordinate body competent to make decisions binding its creator. There can be no doubt that the Administrative Tribunal is subordinate in the sense that the General Assembly can abolish the Tribunal by repealing the Statute, that it can amend the Statute and provide for review of the-future decisions of the Tribunal and that it can amend the Staff Regulations and make new ones. There is no lack of power to deal effectively with any problem that may arise. But the contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted. I t cannot be justified by analogy to national laws, for it is common practice in national legislatures to create courts with the capacity to render decisions legally binding on the legislatures which brought them into being.

text: The question cannot be determined on the basis of the description of the relationship between the General Assembly and the Tribunal, that is, by considering whether the Tribunal is to be regarded as a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact that it was established by the General Assembly. I t depends on the intention of the General Assembly in establishing the Tribunal, and on the nature of the functions conferred upon it by its Statute. An examination of the language of the Statute of the Administrative Tribunal has shown that the General Assembly intended to establish a judicial body ; moreover, it had the legal capacity under the Charter to do so.

text: 62 AWXRDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54)

text: The view has been advanced that the Court should follow what has been called the precedent established by the League of Nations in 1946. On that occasion, the Assembly of the League rejected certain awards of its Administrative Tribunal. It is unnecessary to consider the question whether the Assembly, which in very special circumstances was winding up the League, was justified in rejecting those awards. The cases adjudicated upon by the Tribunal of the League, and the circumstances in which they arose, are different from those which led to the request for this Opinion. Moreover, the cases arose under the Statute of the Administrative Tribunal of the League, and not under the Statute of the Administrative Tribunal of the United Nations, and the Assembly was acting under the Covenant and not under the Charter. In view of the complete lack of identity between the two situations, and of the conclusions already drawn by the Court from the Charter and the Statute of the Administrative Tribunal of the United Nations and other relevant instruments and records, the Court cannot regard the action of the Assembly of the League in 1946 as an applicable precedent or as an indication of the intention of the General Assembly when the Statute of the Administrative Tribunal was adopted in 1949.

text: The Court has accordingly arrived a t the conclusion that the first Question submitted to it must be answered in the negative. The second Question does not therefore call for consideration.

text: For these reasons,

text: having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to t h e relevant records,

text: by nine votes to three,

text: that the General Assembly has not the right on any grounds to refuse to give effect to an award of compensation made by the i Administrative Tribunal of the United Nations in favour of a staff member of the U ited Nations whose contract of service has been terminated wi f hout his assent.

text: 63 AWARDS O F ADMIN. TRIBUNAL (OPINION O F 13 VI1 54) Done in English and French, the English text being authoritative, a t the Peace Palace, The Hague, this thirteenth day of July, one thousand nine hundred and fifty-four, in two copies, one of which will be placed in the archives of the Court and the other transmitted t o the Secretary-General of the United Nations.

text: (Signed) Arnold D. MCNAIR, President .

text: (Signed) GARNIER-COIGNET, Deputy-Registrar.

text: Jvdge WINIARSKI, while voting in favour of the Opinion of the Court, avails himself of the right conferred on him by Articles 57 and 68 of the Statute t o append a statement of his separate opinion. Jiidges ALVAREZ, HACKWORTH and LEVI CARNEIRO declare that they do not share the Court's Opinion and, availing themselves of the right conferred on them by Articles 57 and 68 of the Statute, append thereto statements of their dissenting opinions.

text: (Initialled) A. D. McN. (Initialled) G.-C.