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. It relates solely to 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 to 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.
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 24th, 1949, and on the Staff Regulations and Rules as in force on
December 9th, 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.
Article I of the Statute provides: “A Tribunal is established by 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 10 contains the following provisions
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“2. The judgments shall be final and without appeal.”
“3. The judgments shall state the reasons on which they are based. “.
These provisions and the terminology used are evidence of the judicial nature of the
Tribunal. Such terms as “tribunal”, “judgment”, competence to “pass judgment upon
applications”, are generally used with respect to judicial bodies. The above-mentioned
provisions of Articles 2 and 10 are of an 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 to Staff Rule 111.1 of the United
Nations, which provides:
“A Joint Appeals Board is established to consider and advise the SecretaryGeneral regarding appeals filed under the terms of Staff Regulation 11.1 by staff
members serving at Headquarters.”
The Statute of the Administrative Tribunal contains no similar provision attributing an
advisory character to its functions, nor does it in any way limit the independence of its
activity. The independence of its members is ensured by 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.”
(Article 9 paragraph I) 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 to
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.
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.
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. It 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 SecretaryGeneral 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
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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 10 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 pay the compensation-awarded to the staff member. It follows
that the General Assembly, as an organ of the United Nations, must likewise be bound by the
judgment.
As mentioned above, the Statute of the Administrative Tribunal has not provided for any
kind of review of judgments, which according to Article 10, paragraph 2, shall be final and
without appeal. This rule is similar to the corresponding rule in the Statute of the
Administrative Tribunal of the League of Nations, Article VI, paragraph 1, which equally
prescribed that “judgments shall be final and without appeal”.
It is likewise the result of a deliberate decision that no provision for review of the
judgments of the United Nations Administrative Tribunal was inserted in the Statute of that
Tribunal.
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 any exception to the rule conferring on the Tribunal the power to pronounce final
judgments without appeal.
This rule contained in Article 10, 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 by the Tribunal itself cannot be considered as an
“appeal” within the meaning of that Article and 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.
