Questions may now properly be asked whether the system established in 1946 meets the present day principle of equality of access to courts and tribunals. While the Court is not in a position to reform this system, it can attempt to ensure, so far as possible, that there is equality in the proceedings before it.Footnote 1
Until June 2016, the International Court of Justice (ICJ, the Court) occasionally dealt with distinct types of requests for advisory opinions in which individuals, working for certain international organisations, were directly involved as unofficial parties. These international civil servants, unsatisfied with the decisions rendered by the administrative tribunal dealing with their matters, were able to have these decisions re-examined by the Court. The reason for the failure of this type of advisory proceeding before the Court was primarily due to its inability to adequately adapt its procedural mechanisms to fully uphold the principle of equality between the parties.
Despite this practice being abolished, it drew much attention to the access and procedural inclusion of individuals before the World Court, testing the degree to which the latter could accommodate the needs of people at the centre of such disputes. For this reason, revisiting the practice and its challenges is valuable for this study. I argue in this chapter that the Court was indeed the incorrect forum for such concerned individuals seeking redress, due to its own Statute barring access to individuals and therefore entailing a permanent inequality of the parties. However, while the Court was handling such disputes, there were overlooked ways to adjust its procedural mechanisms to enable the concerned staff member to be even further integrated in proceedings and stand as an equal party to its employer. This was to be achieved through a wider interpretation of the principle of the good administration of justice.
The chapter will first expound three features of this unique type of advisory proceeding reviewing decisions of certain administrative tribunals (Section 4.1). It will then explain the notion of the equality of parties (Section 4.2), before assessing the Court’s procedural adjustments in light of the two subtypes of the principle of the equality of parties: equality of access (Section 4.3) and equality of arms (Section 4.4). Section 4.5 concludes.
4.1 Features of Advisory Proceedings Reviewing Decisions of Certain Administrative Tribunals
Three features of this type of advisory proceeding must be understood: the choice of the advisory function, the concept of judicial review, and the types of administrative tribunals involved in such proceedings.
The first feature is the existence of an underlying contentious dispute between an international organisation and its concerned staff member. While the Court was arguably tasked with reviewing a decision as opposed to settling a dispute between two parties,Footnote 2 this dispute was still unavoidably at the core of the proceedings. The reason why such contentious cases were brought to the Court in the form of requests for advisory opinions is that Article 34(1) of the Court’s Statute denies individuals and international organisations locus standi in contentious cases (see Chapter 1). Advisory proceedings, on the other hand, do not formally have parties (see Chapter 3).Footnote 3 However, this effectively turns an obviously contentious case into a non-contentious proceeding.Footnote 4
While it has been argued in proceedings before the Court that the individual is not one of the ‘parties’ to the proceedings,Footnote 5 the procedure of recourse to the ICJ is a ‘second instance’ of sorts – a protraction of the original dispute between an individual and an international organisation.Footnote 6 Therefore, the Court has acknowledged the rights of the individuals concerned in its case law,Footnote 7 and has categorically stated that the dispute is one between the individual and the international organisation, in its 2012 IFAD advisory opinion.Footnote 8 This acknowledgment of the underlying dispute in the advisory context is due to the importance of the principle of the equality of parties in this context, as will be seen in Section 4.2.
This shoehorning of a dispute between an individual and an international organisation into the confines of an advisory proceeding raises other questions. Advisory opinions are traditionally not binding but – given the nature of the dispute – would the opinion be automatically binding on the relevant actors?Footnote 9 Another question raised is the impact that the advisory opinion would have on the original procedure of the administrative tribunal. To what degree would it override the original decision?Footnote 10 Addressing such questions lies beyond the scope of this study, but they nonetheless highlight the unique nature of these proceedings.
The second unique feature characterising advisory proceedings reviewing decisions of certain administrative tribunals is the existence of a decision by an administrative tribunal. UN tribunals are designed to resolve disputes between an institution and its staff members. In the lifespan of the ICJ, it has reviewed only five decisions from administrative tribunals: three from the United Nations Administrative Tribunal (UNAT)Footnote 11 and two from the Administrative Tribunal of the International Labour Organization (ILOAT).Footnote 12 Both had jurisdiction over a broad range of UN Specialized Agencies and other international organisations.Footnote 13
The UNAT was established on 24 November 1949 through General Assembly Resolution 351(IV)A. The original UNAT Statute within this resolution did not provide for judicial review, its Article 10(2) stating that UNAT decisions were ‘final and without appeal’.Footnote 14 But between 1952 and 1953, several UN Secretariat staff members were terminated by the Secretary-General without their consent, and they appealed to the UNAT against their dismissal. The UNAT upheld their appeal and required that they be compensated, but certain Member States of the General Assembly refused, arguing that there was no obligation to do so. The General Assembly therefore requested an advisory opinion from the ICJ on whether the Assembly was legally entitled to refuse to give effect to the awards of compensation made by the UNAT.Footnote 15 In its 1954 advisory opinion entitled Effect of Awards of Compensation made by the United Nations Administrative Tribunal Advisory Opinion, the Court stated that since UNAT decisions cannot be reviewed, its decisions were binding on the General Assembly. However, its Article 11 could be amended to ‘provide for a means of redress by another organ’.Footnote 16 Following this advisory opinion, the UNAT Statute was amended in 1955 through General Assembly Resolution 957(X) to allow an unsatisfied party to seize the ICJ for review.Footnote 17 The UNAT was abolished by the General Assembly in 1995Footnote 18 and replaced by two tribunals: the United Nations Dispute Tribunal (UNDT), which hears claims in the first instance, and the United Nations Appeals Tribunals (UNApT), which acts as an appellate instance instead of the ICJ.Footnote 19
As for the ILOAT, it was created in 1927 as the successor of the Administrative Tribunal of the League of Nations.Footnote 20 Just like the UNAT, its creation has its origins in a dispute over competence,Footnote 21 based on the ‘theory of the excess power of the international judge’.Footnote 22 The League Administrative Tribunal decided to give compensation to a staff member in a case (Zoppino v. International Labour Office), justifying its behaviour under Article II paragraph 1 of its Statute, providing for jurisdiction relating to contracts of employment of International Labour Organization (ILO) officials.Footnote 23 But the question was raised whether it had that competence or rather, whether it was the role of the Assembly of the League to take such measures. It was concluded by the League’s Finance & Sub-Committee that the Tribunal did not have that competence and that it had ‘exceeded its jurisdictional powers in trying to overrule the League’.Footnote 24
Therefore, the ILOAT replaced the Administrative Tribunal of the League of Nations in 1927. Following this incident, it was believed that some modifications to the Administrative Tribunal’s Statute should be made. The Chairman of the ILO’s Governing Body suggested that ‘[p]rovision might perhaps be made for a “court of appeal”, for example, the International Court of Justice’.Footnote 25 Therefore, after discussions by the Committee on Staff Questions and the Governing Body, the amendment to include Article XII was recommended to the ILO Labour Conference, which adopted it in October 1946:Footnote 26
1. In any case in which the Executive Board of an international organisation which has made the declaration specified under article II, paragraph 5, of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Governing Body, for an advisory opinion, to the International Court of Justice.
2. The opinion given by the Court shall be binding.Footnote 27
Article XII of the ILOAT Statute was abolished in June 2016,Footnote 28 thus stripping the ICJ of its function of reviewing decisions of administrative tribunals.Footnote 29 While other administrative tribunals do exist, no other makes recourse to the ICJ. This is largely due to the significant challenges the Court faced in attempting to ensure procedural equality between the staff member concerned and the international organisation, which presented their dispute under the guise of advisory proceedings.
An understanding of the features explained in this section enables us to assess why the Court could not successfully ensure the procedural equality and inclusion of the individual in such proceedings (Sections 4.3 and 4.4). But before answering this question, this principle of the equality of parties must first be understood (Section 4.2).
4.2 The Principle of Equality of Parties
This chapter argues that a wider interpretation of the principle of the good administration of justice would have allowed for further measures to be taken to guarantee the principle of the equality of parties in these advisory proceedings. The principle of equality of parties (audi alteram partem) is a fundamental principle of judicial procedure.Footnote 30 The Court’s Statute features this principle in its Article 35(2), where it states (in the context of locus standi of states) that ‘in no case shall such conditions place the parties in a position of inequality before the Court’.Footnote 31 The principle of equality of parties has been enshrined in a number of international human rights conventionsFootnote 32 and is considered a ‘key element of human rights protection’, according to the UN Human Rights Committee.Footnote 33 At the crux of this principle is the idea that a judicial settlement that does not prevent procedural arbitrariness vis-à-vis the parties’ rights cannot be legitimate.Footnote 34 Upholding this principle is therefore key to meet standards of fairness used to assess the procedural legitimacy of the Court. It is considered to be a ‘cardinal characteristic of a judicial process’,Footnote 35 and an element within the wider notion of ‘international due process’.
In the words of the Court, the principle of equality of parties forms part of ‘the requirements of good administration of justice’.Footnote 36 This is one of the general principles governing the Court’s procedural law employed by the latter to ensure effectiveness and efficiency in its decision-making.Footnote 37 The good administration of justice empowers the latter with a large breadth of discretion to make the necessary adjustments in order to carry out its procedural functions in the most optimal conditions.Footnote 38 It finds application in diverse circumstancesFootnote 39 but has been observed as applying to preserve a variety of interests such as time, cost, judicial economy, and judicial integrity – and the equality of the disputing parties.Footnote 40
It is understood by the Court that procedural unfairness is detrimental to the good administration of justice.Footnote 41 However, a historical understanding of the good administration of justice is appropriate in the context of this study. The good administration of justice finds its origins in the notion of the denial of justice,Footnote 42 which was first developed in the Middle Ages to advocate for the rights of individuals to justice. It was historically applied in the context of an individual whose rights had been violated by a sovereign state who had then failed to uphold the individual’s right to justice. For instance, both an 836 treaty between Sicard and the Neapolitans and another in 840 between Italian Emperor Lotar I and Doge Petris Tradenicus of Venice affirmed the rights of a private person who had suffered in the territory of a foreign state, and the foreign state failed to do justice. The exercise of reprisals was therefore limited by the notion of the denial of justice.Footnote 43 The good administration of justice was born to describe the antithesis of the denial of justice for individuals.Footnote 44
A human-centred understanding of the good administration of justice has been adopted by the European Court of Human Rights, which authorises amicus curiae submissions ‘in the interest of the proper administration of justice’.Footnote 45 While such standards are expected of a human rights court, it can be argued that a similar approach should be applied in proceedings before the World Court that focus on an individual staff member’s rights against their employer.
The human-centred understanding of the good administration of justice may have led to more creative procedural efforts to uphold the principle of the equality of parties. This chapter proceeds to illustrate the ways in which this was not successfully achieved.
In the context of the Court’s advisory opinions reviewing decisions of certain administrative tribunals, equality of the parties comes into consideration at two different stages. The first stage is within the international organisation (the employer). Typically, such organisations have a Review Committee composed of Member States that decide if applications for a request for a review of the judgment of the Administrative Tribunal should be taken to the ICJ in the first place.Footnote 46 The latter has recognised inequality of the parties with regard to the Review Committee’s procedure within the international organisation.Footnote 47 The second stage in which the equality of parties plays a role is before the Court itself, which is the focus of this chapter.
The issue of equality of the parties is one that the PCIJ had already dealt with in the past, in its 1935 advisory opinion entitled Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City.Footnote 48 This was a case between the Free City of Danzig and individuals representing three minority political parties. The latter submitted a petition to the Council of the League of Nations concerning certain legislative decrees of the Danzig state. The PCIJ decided that it would receive written statements from the Government of the Free City of Danzig, as well as from the individuals. However, it did not allow the individuals to participate in oral proceedings because this practice was uncommon in its advisory cases.Footnote 49 Judge Dionisio Anzilotti strongly dissented to this decisionFootnote 50 and the then-Vice President Guerrero suggested removing ‘any inequality between the parties, whoever they might be’.Footnote 51 In another instance in 1939, former officials of the Governing Commission of the Saar Territory complained to the League of Nations of the ‘prejudice occasioned to them by the expiry of the powers of the Governing Commission’ and that their right to be heard had not been respected.Footnote 52 During preparations to seize the PCIJ with the matter, the right to present written and oral statements to the Court was withheld, since the same possibility could not be given to the petitioners as well. The PCIJ presumably did not wish to grant the government officials greater opportunities of furnishing information to the Court than the petitioners themselves.Footnote 53
In these unique types of advisory proceedings, the Court was challenged with upholding the principle of the equality of the parties: the individual (staff member), on the one hand, and the international organisation (employer), on the other hand. Now that the equality of parties has been understood, its two constituents – equality of access (Section 4.3) and equality of arms (Section 4.4) – will be assessed, in order to determine to what extent they were respected by the procedural mechanisms employed by the Court in these types of advisory proceedings, and if any other measures could have been innovated or considered.
4.3 Equality of Access: The Permanent Obstacle of the Statute
The first constituent of the principle of the equality of parties is the equality of access. The Court defined the concept of equality of access as follows: ‘According to generally accepted practice, legal remedies against a judgment are equally open to either party. In this respect each possesses equal rights for the submission of its case to the tribunal called upon to examine the matter’.Footnote 54
While the UNAT allowed both the wronged staff member and the international organisation to seize the Court,Footnote 55 the ILOAT Statute only allowed the international organisation to do so.Footnote 56 Judge Roberto Córdova dissented in 1956 that in not respecting the equality of access of the parties, it was impossible for the Court to administer justice in strict compliance with its basic principles.Footnote 57 On this issue, the Court stated in 2012 that ‘questions may (…) properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals’ but that it is ‘not in a position to reform this system’.Footnote 58
The equality of access stems from two legal sources: the ILOAT Statute and the ICJ Statute. The problem with the equality of access is twofold: on the one hand, certain international organisations may not allow their staff members to seize the ICJ to review the organisation’s decision, allowing only the organisation to do so. On the other hand, even if the organisation does allow the individual to seize the ICJ, the Court’s own Statute does not allow this. There is therefore a dual problem, each of which shall be addressed in turn.
4.3.1 Access of the Injured Staff Member to the Court via Article XII, ILOAT Statute
Former Article XII of the ILOAT Statute only allowed the international organisation (the employer) but not the wronged staff member (the employee) to seize the ICJ to ask for an advisory opinion. If it so happened that the staff member was not satisfied with the decision of the ILOAT, they had no means to challenge the decision and seize the ICJ. This is because the ILOAT Statute did not give the individual this right. Judge Greenwood commented that ‘I do not believe that it is acceptable today. This inequality is no technicality; it is a fundamental flaw in the system created by Article XII’.Footnote 59
Concerns about this situation were already raised in 1956, when the Court considered whether the inequality of access constituted a compelling reason to refrain from delivering an advisory opinion.Footnote 60 It concluded that this was an inequality that was antecedent to the request for an advisory opinion, not an inequality before the Court itself.Footnote 61 The Court therefore considered that it was not affected by this inequality and decided to proceed. In his separate opinion, Judge Winiarski pointed out that this was not compatible with the Court’s judicial character.Footnote 62 Judge Helge Klaestad and Judge Córdova also disagreed with the Court’s reasoning in this respect.Footnote 63
Due to this controversy, the ILOAT abolished Article XII of its Statute in June 2016.Footnote 64 It had already pointed out in its Judgment No. 3003 of 2011 (the judgment that the ICJ then reviewed in its 2012 advisory opinion) that the procedure set forth in Article XII of the Annex to its Statute is ‘fundamentally imbalanced to the detriment of staff members’.Footnote 65 It also pointed out that its Article XII was essentially different from the procedure under the UNAT, in that the latter permitted staff members, the international organisation in question, the Secretary-General, and Member States to seize the Court:
The fact that recourse to the Court under Article XII is confined to the organisations and hence can only relate to judgments unfavourable to them, means that the possibility of obtaining a stay of execution would, by definition, only benefit the organisations themselves. This would doubly worsen the imbalance between the parties created by the Article XII procedure, to the detriment of the staff members.Footnote 66
In 2015, in an internal document entitled Workload and effectiveness of the Tribunal, the ILO stated that ‘[u]rgent consideration should (…) be given to repealing Article XII of the Statute along with the formalisation of the procedure for the review of judgments developed in the Tribunal’s case law’ and requested the ILO Director-General ‘to prepare draft amendments to the Tribunal’s Statute relating to Article XII’.Footnote 67 The ILO Governing Body stated the following in its Proposed amendments to the Statute of the Tribunal: ‘Given that the review procedure is open only to defendant organisations and not to aggrieved staff members, it is generally recognised today that Article XII of the Statute and Article XII of the Annex fail to meet the overriding principle of equality of access to courts and tribunals. The provision has been vividly criticised by the International Court of Justice as anachronistic (…)’.Footnote 68 On 7 June 2016, Article XII was formally deleted from the ILOAT Statute.
This decision affected 11 UN specialised agencies and the International Atomic Energy Agency,Footnote 69 all of whose staff members would turn to the ILOAT if wronged by their employer. During discussions, the employers’ groups and worker spokesperson approved of the idea to remove Article XII, and the Africa group also supported the decision upon the condition that the option of a review system would feature in the ILOAT Rules of Procedure.Footnote 70 Contrarily, the proposal to abolish Article XII was strongly refuted by the Union syndicale fédérale des services publics européens et internationaux and the Federation of International Civil Servants’ Association.
The violation of the equality of access could have easily been remedied via an amendment of Article XII of the ILOAT Statute. Indeed, Article XI of the ILOAT Statute states that ‘[t]he present Statute may be amended, after consultation with the Tribunal, by the International Labour Conference or such other organ of the International Labour Organization as the Conference may determine.”Footnote 71 An amendment of Article XII allowing for the staff member to seize the ICJ would place them at par with the international organisation. Both parties concerned would have the same access to the Court. However, only half of the problem would have been resolved, as the inequality of access is also a feature of the ICJ Statute.
4.3.2 Access of the Injured Staff Member to the Court via Its Statute
The Court has stated that the inequality reflected in Article XII of the ILOAT Statute is not an inequality before the Court itself.Footnote 72 But this does not mean that the Court is free from the problem of inequality of access before it. Indeed, even if the ILOAT Statute allowed equal access, the ICJ Statute was still another hurdle for the disgruntled staff member.
Article XII was deliberately drafted with the goal of preventing individuals from seizing the Court because of Article 34(1) of the ICJ Statute. Indeed, the Court itself has explained,
Under Article 34, paragraph 1, of the Statute of the Court ‘only States may be parties in cases before the Court’. In Article XII it was sought to avoid this difficulty while nevertheless securing an examination by and a decision of the Court by means of a Request, emanating from the Executive Board, for an Advisory Opinion. To the Executive Board-and to it alone-was given the right of challenging a Judgment of the Administrative Tribunal.Footnote 73
While judges and scholars alike have vividly criticised Article XII of the ILOAT as well as the ICJ’s conduct and approach during such proceedings, little to no criticism has been made towards Article 34(1) of the ICJ Statute itself, which is at the core of the entire controversy. If this clause was not drafted as such and the individual had locus standi before the Court, then Article XII would not have been drafted accordingly, and the inequality between the parties would not exist. Ultimately, this is the true hindrance. Thus, modifying Article XII would have had to go hand in hand with modifying the ICJ Statute. Even if the ILOAT Statute gave individuals access to the ICJ, the latter’s Statute itself would not and the two Statutes would stand in stark contradiction.
Scholar Leo Gross, in support of the amendment of Article 34(1), has stated that ‘a great deal of traditional thinking was jettisoned by the General Assembly when it adopted the novel review procedure directly involving staff members. Probably no one will shed any tears if a little more of the same stuff goes overboard when an even greater traditional principle is at stake’.Footnote 74 However, as discussed in Chapter 1, this would not be possible for a number of reasons and, furthermore, the Court has explicitly stated that it is “not in a position to reform this system.”Footnote 75 It thus found itself in face of an uncomfortable fait accompli that it had to remedy through the second component of the overarching principle of the equality of parties: the equality of arms.
4.4 Equality of Arms: New Procedural Mechanisms in Favour of the Injured Staff Member
The Court has made clear that while it is ‘not in a position to reform this system [creating the inequality of access], it can attempt to ensure, so far as possible, that there is equality in the proceedings before it’.”Footnote 76 Indeed, while the Court could not change the equality of access, it could – and did attempt to – change the equality of arms. However, it will be argued in this section that the Court did not fully exhaust the procedural mechanisms at its disposal to try and close the gap of inequality between the parties.
The principle of equality of arms means that parties must be treated equally from a procedural standpoint, having equal opportunity to present their case without being at a disadvantage to their opponent. This principle has been developed in the jurisprudence of international human rights courts.Footnote 77 It represents another aspect of the principle of equality of the parties, emphasizing that true equality requires more than merely door to the courthouse.
The issue regarding equality of arms arises from the fact that wronged staff members, who were originally parties to the proceedings before the administrative tribunals, were barred from appearing in a similar capacity at the Peace Palace. As a result, they were excluded from these proceedings despite having a clear and justified legal interest in the case. Indeed, Article 66(2) of the ICJ StatuteFootnote 78 states the following:
The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organisation considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question.Footnote 79
As examined in Chapter 3, this provision permits governments and international organisations to participate in advisory proceedings, but not private parties (Section 3.3). In these proceedings reviewing decisions of certain administrative tribunals, however, the Court took it upon itself to tweak and contrive procedures in order to uphold the principle of the equality of arms,Footnote 80 reassuring private parties that ‘[a]ny absence of equality (…) inherent in the terms of Article 66 of the Statute of the Court is capable of being cured by the adoption of appropriate procedures which ensure actual equality in the particular proceedings’.Footnote 81 In so doing, the Court has always been guided by its duty to remain faithful to the requirements of its judicial character.Footnote 82
The Court took two principal measures to preserve and guarantee the equality of arms: first, an actor with access to the Court in advisory proceedings would arrange to transmit the views of the concerned staff members to the Court (Section 4.4.1). Second, since only states or international organisations could participate in oral proceedings, but not individuals, oral proceedings were barred from proceedings altogether, in order to equalise the parties in the procedure before the Court (Section 4.4.2). Both measures are examined more closely here.
4.4.1 Transmitting the Staff Member’s Documents
In advisory proceedings of this nature, there have been two authorities who were tasked with transmitting documents from the individual to the ICJ: the UN Secretary-General in the case of UNAT and the international organisation (employer) in the case of ILOAT.
The Secretary-General was involved in the transmission of documents in advisory proceedings reviewing decisions made by the UNAT. This is because the UNAT Statute’s Article 11, in its paragraph 2 in fine, stated that the Secretary-General would arrange to transmit to the Court the views of the wronged staff member.Footnote 83 This procedure was practised in the only three advisory proceedings involving UNAT brought to the Court’s docket: Application for Review of Judgment No. 158 of the UNAT case (1973), Application for Review of Judgment No. 273 of the UNAT case (1982),Footnote 84 and Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal (1987).Footnote 85 In 1955, the Secretary-General at the time considered this role his ‘responsibility to assure as far as possible an equality of rights for the staff member concerned’.Footnote 86
The Court was satisfied with the Secretary-General’s role in facilitating the staff member’s participation, as the staff member was not dependent on the international organization (employer), unlike in ILOAT proceedings.Footnote 87 Regardless, this system involving the Secretary-General bore the risk of delays, as seen in the 1982 advisory proceeding: the staff member argued that the procedure resulted in a six-week delay in communication between himself and the Court.Footnote 88
The alternative means of transmitting the staff member’s documents was through the international organisation in dispute with its staff member. Unlike the UNAT, which explicitly provided in its Article 11(2) that the Secretary-General would transmit the individual’s documents to the Court,Footnote 89 the ILOAT Statute made no such explicit provision. The ICJ therefore developed the practice of relying on the international organisation in its 1956 and 2012 cases involving the ILOAT.Footnote 90
The setback in this approach is that the staff member had to rely on the goodwill of the international organisation to transfer the documents. In the 1956 advisory opinion, this was criticised by Judges Klaestad, Córdova, and Muhammad Zafrulla Khan.Footnote 91 The process was different from that involving the Secretary-General, who was more compelled to act in good faith given his role in the UN and his lack of legal interest in the case. The international organisation, on the other hand, was the other ‘party’ in the dispute against the individual and was therefore not guaranteed to act in good faith. In the Court’s 2012 IFAD advisory opinion, the International Fund for Agricultural Development (IFAD) did not comply in transmitting the documents of the relevant staff member, Ms. Ana Teresa Saez García.Footnote 92 The Court conveyed ‘the failure of IFAD to inform Ms. Saez García in a timely way of the procedural requests it was making to the Court’Footnote 93 and ‘IFAD’s initial failure to transmit to the Court certain communications from Ms. Saez García’.Footnote 94 Judge Greenwood also commented in his separate opinion that ‘IFAD’s approach to the proceedings, of which the Court (in paragraph 46 of the Opinion) has rightly been critical, amounted to treating Ms. Saez García as a spectator rather than a participant in proceedings whose outcome would have a direct and substantial effect upon her’.Footnote 95 Due to this incident, the filing of all necessary documents was not completed until 15 months after the request for the advisory opinion,Footnote 96 which was of much concern to the Court.Footnote 97
I believe there were unexplored ways to equalise the roles of the ‘parties’ and prevent the international organization from being responsible for submitting the individual’s documents. For instance, instead of the international organisation submitting its own documents as well as those for the other party, a neutral third party could have served as the transmitting organ for both parties. While the Secretary-General assumed this role, the delays highlighted the need for a neutral third party, appointed specifically for the purpose of participating in the proceedings, and thus able to respond more efficiently. This could be a professional from the UN Secretariat or Ombudsman and Mediation Services, or a representative of another international organisation. This entity could have also been available to transmit any written communications between the parties and the Registry of the Court. The presence of this neutral actor would have prevented both the international organisation and the wronged staff member from directly transmitting their documents before the Court, thereby successfully placing the parties on an equal footing at the Peace Palace.
4.4.2 The Absence of Oral Hearings in Advisory Proceedings
As discussed earlier, one way the Court has attempted to address the inequality of arms is by allowing the individual to transmit documents indirectly. However, it was also suggested that a suitable alternatives could have been considered. The second means of redress in response to the inequality of arms practised by the Court was the prohibition of oral proceedings.
While Article 66(2) of the ICJ Statute assumes that there may be a written and an oral component in advisory proceedings, Article 105(2)(b) of the Court’s Rules states that the Court shall ‘decide whether oral proceedings shall take place at which statements and comments may be submitted to the Court under the provisions of Article 66 of the Statute, and fix the date for the opening of such oral proceedings’.Footnote 98 This indicates that oral proceedings are generally not sine qua non, and written submissions may be adequate in providing sufficient information for the Court to give an advisory opinion.Footnote 99 The Court also commented in its 1973 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal advisory opinion that there is no ‘general principle of law’ requiring oral hearings to take placeFootnote 100 and that ‘True, certain judges considered that the absence of oral proceedings constituted either an insuperable or a serious obstacle to the Court’s complying with the request for an advisory opinion. But that view was not shared by the Court’.Footnote 101
Thus, oral proceedings are, in theory, dispensable. In fact, there were no oral hearings in the first instance proceedings between the international organisation and the staff member before the ILOAT. In this sense, in not providing oral proceedings, the ICJ was not robbing the ‘parties’ of a procedural mechanism that was offered to them in the first stage of their dispute. The proposal to eliminate oral hearings was first introduced during the first review of an administrative tribunal’s decision before the ICJ, and has been applied in all five such cases. In the 1956 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO advisory opinion,Footnote 102 the individuals involved – Mr. Peter Duberg, Mr. David Leff, Mrs. Wilcox, and Mrs. BernsteinFootnote 103 – were not granted the right to appear before the Court, and as a result, neither was UNESCO. The Court stated that ‘although no oral proceedings were held, the Court is satisfied that adequate information has been made available to it’.Footnote 104 However, it should be noted that the Court has always held oral proceedings, with these five cases being the only exceptions.Footnote 105 It is reasonable to assume that if there were no issue of inequality between the parties, the Court would have no justification for prohibiting oral hearings.Footnote 106
Doing away with oral hearings was not free from criticism by dissenting ICJ judges such as Judges Hermann Mosler,Footnote 107 Isaac Forster, Nagendra Singh,Footnote 108 and Klaestad.Footnote 109 Then-Secretary-General Javier Perez de Cuellar even stated in his report that such a process ‘does violence to the judicial procedures of the Court’.Footnote 110 The Court itself stated in its 1982 advisory opinion that it was ‘depriving itself of a very useful procedure’.Footnote 111
Given the formal and structured nature of oral proceedings at the Court, one could argue that their absence would result in little loss.Footnote 112 However, the exercise of oral hearings is significant to meet standards of democracy necessary to uphold the Court’s procedural legitimacy (see Section I.1.2). Oral hearings can also enhance such legitimacy by meeting standards of technocratic expertise, in at least three ways.
Firstly, oral hearings may elucidate certain misunderstandings generated from written documents. They are considered to be the means by which the Court may obtain clarification of the issue before it.Footnote 113 In this sense, they may allow the Court to obtain the fullest possible argument from the parties.Footnote 114 In some circumstances, cases are so intricate that only oral hearings can disentangle the difficulties.Footnote 115 This was acknowledged in the 1987 advisory opinion (Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal), where Judge Stephen Schwebel dissented that ‘had oral arguments taken place, certain significant factual uncertainties might have been resolved’.Footnote 116
Secondly, oral hearings may allow judges to obtain missing information.Footnote 117 Judge Gros, dissenting to the 1973 advisory opinion (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal), believed that an intermediate stage was necessary before adjudicating because the staff member in the case had limited factual information in his case file.Footnote 118 This would allow the staff member to receive a full picture of the affair. This stage was also important for the Court; Judge Khan described that the Court had deprived itself of obtaining valuable assistance in the discharge of one of its judicial functions.Footnote 119 Indeed, it has been claimed that ‘there would have been an investigation as a phase separate from the adjudication only if the Court had considered (…) that an enquiry and additional explanations were required before going ahead’.Footnote 120 The Court was therefore sacrificing an important process in the investigations.
Thirdly, oral hearings remove doubt as to whether the written statements reflect the individual’s views. For example, in the 1973 case (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal), the ICJ President doubted whether Mr. Mohamed Fasla’s statement, transmitted to the Court via the Secretary-General, ‘accurately represented Mr. Fasla’s views. The President therefore decided on 25 October 1972 that the written statement (…) might be amended by the filing of a corrected version of the statement of Mr. Fasla’s views, and fixed 5 December 1972 as the time-limit for this purpose’.Footnote 121 This slowed down proceedings considerably, whereas the alternative of oral proceedings, allowing the individual to express their views directly, could have resolved this issue. It could possibly have done so more successfully than written statements, given the opportunity to ask questions and seek clarifications in case of any lingering doubt. Here, oral hearings are what make the difference in a process that otherwise consists of two rounds of potentially redundant written submissions (before the administrative tribunal and then before the ICJ).Footnote 122
However, it must be noted that oral hearings may only be barred with the consent of UN Member States. While Article 105(2)(b) of the Court’s Rules does give the Court discretion to decide if oral proceedings will take place, the Registrar must notify Member States of its decision.Footnote 123 Consequently, the Court finds itself in the uncomfortable position of relying on states to cooperate with this decisionFootnote 124 and, as put by then-UN Secretary-General Perez de Cuellar, ‘[T]he entire procedure is thus at the mercy of any State that might insist on its right to make an oral statement under Article 66(2) of the ICJ Statute (which would result in the type of inequality of arms vis-à-vis the applicant that would almost surely cause the Court to abort the proceeding)’.Footnote 125 In contrast, an individual has no such power to insist on holding an oral hearing; this was made particularly clear when the interested staff member in the 1973 advisory proceedings (Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal) insisted through letters to the Court that oral proceedings be held, to no avail.Footnote 126
Other solutions could have been explored that would have enabled the Court to maintain oral hearings while placing the parties at more of an equal standing. This would involve both parties being represented in another format which would be acceptable in the Court’s procedure.
First, the Court could have authorised the relevant staff members to make a statement in oral hearings, pursuant to Article 66(2) of its Statute. As examined in Chapter 3, the Court has exercised its discretion to allow relevant entities beyond states to furnish information. Despite the Court’s observed reticence, this theoretically could have been a viable option to ensure the equality of parties.
Second, in line with proposals submitted in other chapters of this study, both sides – the staff member and the organisation – could have been heard as witnesses.Footnote 127 This is a delicate and controversial suggestion as the Court has not clearly established that the procedures regarding witnesses applicable in contentious cases could also be applied in advisory proceedings (see Chapter 3). It is also questionable whether the international organisation would accept to be ‘downgraded’ from being authorised to provide information in its own capacity pursuant to Article 66(2), to a witness. The Court might take issue with this as well: In the 2003 Armed Activities case, when Uganda requested to summon the Minister of Defence of the Republic of Uganda and a senior military officer in the Uganda People’s Defence Forces as witnesses, the Court opined that it would not be appropriate. It stated that the participation of such individuals should not take the form of witness testimony.Footnote 128 The same reasoning could potentially apply to international organisations. However, the witness procedure remains a possible option.
Another possibility would be for two UN representatives to be appointed to appear before the Court, one representing the organisation and the other representing the staff member. These two representatives would play the role of counsel, specially designated to present and clarify issues for their clients.Footnote 129 Further, similar to the proposal for the transmission of written documents, the parties’ views could have been communicated by an ombudsman. This was proposed for UNAT proceedings before the Court by a number of members of the UN Sixth Committee of the General Assembly.Footnote 130
There were also possibilities for the individual to be represented in oral hearings by another entity entitled to appear before the Court. For instance, the Secretary-General could have represented the individual concerned; a suggestion made in scholarshipFootnote 131 and by Judge Schwebel in 1987, who dissented that ‘counsel selected by the application could be introduced as the Secretary-General’s special representative to express the applicant’s views’.Footnote 132 Despite possible delays in oral hearings (due to the abovementioned delays with the transmission of written documents), this was a procedurally viable option.
Although the Federation of International Civil Servants’ Associations could be considered as the staff member’s representative, it is doubtful that the Court would qualify this as an international organisation in the sense of Article 66(2) of its Statute (Section 3.2). Although the PCIJ did hear organisations such as the International Federation of Trade Unions, the International Confederation of Christian Trade Unions, and International Organisation of Industrial Employers in successive ILO cases,Footnote 133 its successor became much more reserved, only allowing the International League for the Rights of Man in once instance, upon the premise that it was indeed an international organisation, as discussed in Chapter 3. It is therefore unlikely that any association would be permitted to represent the staff member in question, but another suitable representative from an international organisation would still be a viable option for the individual.
4.5 Conclusion
There are several reasons why the Court was an initially seen as an attractive forum for reviewing the decisions of administrative tribunals on disputes between certain international organisations and their staff members. First, its predecessor (the PCIJ) required to perform judicial review.Footnote 134 Second, these unique types of requests for advisory opinions nourished the Court’s position as the principal judicial organ of the UN. Indeed, in reviewing the decisions of administrative tribunals, the Court was tasked with giving judicial advice on legal questions related to international institutional law,Footnote 135 particularly on activities of importance in the UN system of which it is part.Footnote 136 An indication that the Court placed importance on this task is that it never declined to deal with such requests, although it had the discretion to do so.Footnote 137 While the reasons for refusal include it not wishing to compromise ‘the requirements of its judicial character”,Footnote 138 or “compelling reasons’,Footnote 139 the Court has stated that ‘[i]t is equally well established that the reply of the Court to a request for opinion represents its participation in the activities of the United Nations and, in principle, should not be refused’.Footnote 140 Indeed, rejecting such an advisory opinion would ‘imperil the working of the regime established by the Statute of the Administrative Tribunal for the judicial protection of officials’,Footnote 141 according to the Court. The ICJ has thus considered all judicial review requests, even the Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal advisory opinion of 1982, in which the Court admitted that there were indeed compelling reasons to decline giving an advisory opinion.Footnote 142
Another benefit was the ability of this system to uphold fundamental principles of due process such as that of the faculty to ‘appeal’. Although the principle of finality – stipulating that the decision rendered by a court is final – is paramount in international adjudication, it is limited by the faculty of appeal.Footnote 143 While ICJ has made clear that it is not a court of appeal, nor are such processes appeals,Footnote 144 the general idea of the injured party having the option to recourse to a sort of ‘second instance’ is still relevant in this context. In the words of one author, ‘[I]t is generally in the interests of international justice for the party aggrieved by an erroneous decision to have the means of correcting it. Otherwise, the finality of proceedings might lead to “perpetuating judicial errors” and may in fact hinder the proper administration of justice’.Footnote 145 In casu, the natural outcome of abolishing the practice of requesting the ICJ to review the ILOAT’s decision is that the latter’s judgments are final, and there is no procedure allowing the parties to challenge its judgments,Footnote 146 as stipulated in Article VI(1) of the ILOAT Statute.Footnote 147 They are thus binding on the parties, pursuant to the principle of res judicata.
Requesting to have the administrative tribunal’s decision reviewed by the ICJ had seemingly been well-sought by staff members: while the ILOAT does not have clear statistics, it was reported in 1994 that 92 applications had been made from staff members to UNAT.Footnote 148 However, the Committee on Applications for Review of Administrative Tribunal Judgments provided for a filtering mechanism, resulting in only three being referred to by the Court.Footnote 149 As the Court had made clear that its task was that of a judicial review and not an appeal, it could be argued that judicial review is typically discretionary in its nature and not a right of the individual, contrary to an appeal. Despite this, removing this possibility for staff members could arguably interfere with certain general principles of law and procedural guarantees to which they are entitled, such as the right to effective remedy and the guarantee of due process.Footnote 150
Notwithstanding these reasons in support of maintaining this procedure of review of administrative decisions by the Court, the structural and internal adversities that arose when the Court was faced with such cases were manifest. The structural adversities included the management of what were fundamentally contentious cases under the auspices of the advisory function between two non-state actors, and the ensuing complications. The internal adversities included whether it was appropriate to rule on questions of international administrative law, whether to review the merits of the administrative tribunal’s decision, and most importantly, the multiple ramifications from the inequality between the parties, in written and oral proceedings.Footnote 151 The problems with respect to the inequality of the parties fundamentally stemmed from the fact that individuals have no locus standi to the Court. This was the source of inherent inequality of the parties in the entire review system.Footnote 152
It seems unwarranted to dismantle the Court’s Statute for a type of case that only reached the Court’s docket on five occasions. The Court was ultimately not intended to address matters between individuals and staff members. History supports this: during the meeting of the Washington Committee of Jurists in 1945, the Venezuelan delegation proposed that the Court ‘should be able to set itself up as a court of appeal for questions coming in first instance under the jurisdiction of other international administrative courts which may be created’.Footnote 153 This amendment was ultimately rejected,Footnote 154 and Judge Córdova argued in his dissenting opinion of 1956 that this stands as clear evidence that the drafters of the Statute did not envision this function for the Court.Footnote 155 Venezuela’s vision nonetheless came to fruition, due to international organisations delegating the Court with a function that went beyond the parameters of its own Statute. Fortunately, the terms of the Statute were broad enough to permit the Court to give advisory opinions akin to judicial review.Footnote 156 However, the Court made it clear in 2012 that it was uncomfortable with such a procedure, prompting the ILO to discontinue it.Footnote 157
The Court was correct to question ‘whether the system established in 1946 meets the present‑day principle of equality of access to courts and tribunals’; it most certainly did not. The Court was also right in stating that it was ‘not in a position to reform this system’.
But did the Court ‘attempt to ensure, so far as possible, that there is equality in the proceedings before it’?Footnote 158 This chapter has argued that it did not. Articles 34(1) and 66(2) carry the unfortunate promise that the parties would have never truly been equal in an absolute sense. Due to the wording of the Statute, the equality of access will persist, despite any adaptations made with regard to the equality of arms. Yet, this chapter aimed to demonstrate that there were other potential solutions the Court did not consider to address the inequality of arms. Beyond the measures already taken, additional possibilities existed to adapt to the circumstances and narrow the inequality gap as much as possible. The Court, master of its own procedure, had the ability to implement these measures, which would have reflected a wider interpretation of the good administration of justice.
The short-lived practice of reviewing administrative tribunals’ decisions was a robust and remarkable reminder that the Court is consistently faced with issues concerning individuals. Through challenges such as this one, it was invited to question whether the modest degree to which individuals participate in proceedings before it is appropriate. The system of reviewing decisions of UN administrative tribunals, according to a former UN Secretary-General, was ‘not established primarily for the purpose of giving applications, or even executive heads, another level of appeal (…) its purpose was to enable States to challenge judgments which they considered were for some reason as unacceptable (…)’.Footnote 159 The entire procedure was designed to grant more rights to states, rather than to individuals. Regardless of why this system was established, it was ultimately dismantled due to the consistent violation of the individual’s procedural rights as a key stakeholder in the process.Footnote 160 This alone highlights the discrepancy between the increasing presence, relevance, and needs of individuals in international law and the Court’s infrastructure. Through these types of advisory proceedings, it was proven that the Court’s exercise of its procedural mechanisms does not copiously live up to required standards in today’s international legal system.
Open access