1 [1956] I.C.J. Rep. 77; A.J.I.L. 410 (1957).

2 P.C.I.J., Ser. B, No. 14, p. 161. See also Manley O. Hudson, The Permanent Court of International Justice 1920-1942 (1943), p. 403; “Participation of Individuals in Proceedings before the International Court of Justice“: Memorandum submitted by the Secretary-General, U.N. Doc. A/AC. 78/L. 10 (April 13, 1955). General Assembly, 10th Sess., Official Records, 1955, Annexes, Agenda Item 49, pp. 26-28, at 27.

3 P.C.I.J., Ser A/B, No. 65, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City. Advisory Opinion of Dec. 4, 1935, p. 65 f.

4 In the view of Judge Hudson ‘ ‘ it would seem possible for the Court to have said, down to 1936 at any rate, that national organizations and even individuals might likewise appear to furnish information in advisory proceedings.” Op. cit.

5 “ Participation of Individuals … “ (cited note 2 above), p. 28.

6 The Secretary General observed on this point: ‘'Enquiry into the validity of the present claims involves the question whether, having regard to its constitution and the principles of international law which are applicable, it is possible that the League of Nations should have incurred financial responsibility by reason of accomplishing a function of the character given it by Section IV of Part III of the Peace Treaty of Versailles.” League of Nations Official Journal, November-December, 1939, p. 502.

7 Loc. cit. 503.

8 The full title of the Advisory Opinion of Oct. 23, 1956, is “Judgments of the Administrative Tribunal of the International Labor Organization upon Complaints made against the United Nations Educational, Scientific and Cultural Organization,” [1956] I.C.J. Rep. 77. For a digest see 51 A.J.I.L. 410-417 (1957); and for an analysis see Manley 0. Hudson, “The Thirty-Fifth Tear of the World Court,” ibid. 4-9.

9 Written Statement by Unesco, I.C.J. Pleadings, Oral Arguments, Documents, Judgments of the Administrative Tribunal of the I.L.O., p. 70.

10 Ibid.

11 Legal Adviser, Dr. Saba, to Maitre Mercier, Feb. 1, 1956: “ Jevous indiquais, toutefois, qu'étant donné le caractère de la procédure à suivre devant la Cour, les observations de vos clients devraient se limiter à la réfutation d'arguments de droit sans comporter de critiques concernant, soit la politique d'un Etat membre de 1'Organisation, soit les agissements de celle-ci.” Ibid,. 247.

12 Ibid. 248. See also pp. 235-237, 245, 249, 253, 254, 264. 13 In this context it is interesting to recall the correspondence between counsel for staff members and the Registrar of the Court with reference to the United Nations request for an Advisory Opinion on the “Effect of Awards of Compensation made by the United Nations Administrative Tribunal.” After rejecting a request by counsel concerning submission of observations to the Court, the Registrar also rejected a request for permission to receive the statements submitted on this question by Member States or the Secretary General to the Court. Referring to Arts. 82 and 44 of the Court's Rules, the Registrar declared: “ I n the view of the President the same principles apply to the communication of the written statements in connection with advisory opinions, and it would not be proper for the Court to order that the written statements submitted to it in the present case should be made available to members of the public without consent of the body by whom the request for the advisory opinion was submitted, namely, the General Assembly.” I.C.J. Pleadings, United Nations Administrative Tribunal, p. 410. See also pp. 394, 397, 409. It will be noted that the staff members, beneficiaries of judgments of the Administrative Tribunal involved in this ease, were put in the category of “members of the public.”

14 I.C.J. Pleadings, Judgments of the Administrative Tribunal of the I.L.O., pp. 170-183, 258.

15 Ibid. 219-223, 266. It appears from these supplementary observations that the beneficiaries and their counsel had reviewed the statements submitted to the Court by UNESCO as well as a number of governments.

16 The question was alluded to in the French and British statements but in a somewhat different context. See ibid. 210, 214.

17 Judgments of the Administrative Tribunal of the I.L.O. upon Complaints made against the U.N.E.S.C.O., Advisory Opinion of Oct. 23, 1956, [1956] I.C.J. Rep. 77 at 85.

18 Ibid.

19 Ibid, at 78. On Jan. 10, 1956, the declaration specified in Art. II, par. 5, was made by WHO, ITU, UNESCO, IMO, FAO and the European Organization for Atomic Research. I.C.J. Pleadings, Judgments of the Administrative Tribunal of the I.L.O., p. 239.

20 [1956] I.C.J. Rep. 77 at 85.

21 Ibid, at 86.

22 Ibid.

23 Ibid.

24 On this point Judge Winiarski declared in his Separate Opinion:''The fact that this unusual procedure has not given rise to any objection on the part of those concerned and that it has been consented to by counsel for the officials is irrelevant. These officials had no place in the normal advisory procedure.” Ibid, at 108. See also Judge Sir Muhammad Zafrulla Khan's Separate Opinion, ibid, at 114. 25Ibid. at 85.

25 On this point Judge Winiarski declared in his Separate Opinion: ‘ ‘ The fact that this unusual procedure has not given rise to any objection on the part of those concerned and that it has been consented to by counsel for the officials is irrelevant. These officials had no place in the normal advisory procedure.” Ibid, at 108. See also Judge Sir Muhammad Zafrulla Khan's Separate Opinion, ibid, at 114.

26 Ibid at 101.

27 Ibid. 155. Two Judges, Hackworth and Badawi, disagreed with the opinion on the merits and wrote dissenting opinions.

28 Ibid, at 106, 84. Judge Winiarski recalled that at the San Francisco Conference Venezuela made the following proposal which was defeated: “ A s a Court of Appeals, the Court will have jurisdiction to take cognizance over such cases as are tried under original jurisdiction by international administrative tribunals dependent upon the United Nations when an appeal would be provided in the Statute of such tribunals.” Ibid, at 107. See also ibid, at 160.

29 Ibid, at 106, 107, 108. In his Separate Opinion Judge Klaestad observed that oral hearings ‘'have hitherto been fixed in all advisory cases which have been considered by this Court, as being a normal and useful, if not an indispensable, part of its proceedings.” Ibid, at 110. Judge Sir Muhammad Zafrulla Khan pointed out in his Separate Opinion that “oral proceedings were dispensed with not because the Court considered that it could not receive any assistance through that means, but because the inequality of the parties in respect of oral hearings could not be remedied in any manner.” Ibid. 114.

30 Ibid at 112.

31 Ibid, at 115.

32 Ibid. at 168.

33 Res. 957 (X) adopted by the General Assembly on Nov. 8, 1955. General Assembly, 10th Sess., Official Records, Supp. No. 19 (A/3116), p. 30.

34 [1956] I.C.J. Rep. 77 at 156.

35 Ibid.

36 Ibid. 157.

37 ibid. 158.

38 Ibid, at 161. Judge C6rdova dealt at some length with the Venezuelan proposal at the San Francisco Conference which was defeated, ibid, at 160-161; see also supra, note 28.

39 Ibid, at 164.

40 Ibid, at 165-166.

41 Judge Klaestad, ibid. 111.

42 Res. 957 (X) of Nov. 8, 1955. General Assembly, 10th Sess., Official Records, Supp. No. 19 (A/3116), p. 31.

43 The General Assembly accepted “ i n principle” judicial review by Res. 888 (IX) B of Dec. 17, 1954. General Assembly, 9th Sess., Official Records, Supp. No. 21 (A/2890), p. 43. For a presentation of views expressed by Members on the subject of judicial review, see Report of the Special Committee on Review of Administrative Judgments, Doc. A/2090 of June 10, 1955, General Assembly, 10th Sess., Official Records, Annexes, Agenda Item 49, pp. 1-16; for the views of the Secretary General see Suggestions by the Secretary General on Judicial Review of United Nations Administrative Judgments, Doc. A/AC.78/L.8 of April 12, 1955, ibid. 16-17, and Statement made by the Secretary General at the 493rd meeting of the Fifth Committee on Oct. 17, 1955, ibid. 37-38.

44 The Belgian delegation submitted a draft resolution proposing to request an advisory opinion of the Court on this question. Doc. A/L.199 of Nov. 7, 1955, ibid. 44. This draft was put to the vote on Nov. 8, 1955, and not adopted, there being 31 votesagainst, 15 in favor and 13 abstentions. General Assembly, 10th Sess., Official Records, Plenary Meetings, p. 288. The draft resolution was supported by India, Syria and Yugoslavia, see ibid. 280, 286, and opposed by Argentina, Iraq, the United Kingdom and the United States, ibid. 277, 278, 283, 284. The U. S. representative argued that, if the review procedure is used at all, “the Court automatically has the opportunity of deciding whether or not there is any legal flaw in the procedure. We can be certain that the Court will not hesitate to inform us if any important element of the procedure is contrary to the provisions of the Charter or of the Statute of the Court itself, or if it does not give the necessary protection to the parties who might be affected.” Ibid. 284, par. 67.

45 General Assembly, 10th Sess., Official Records, Fifth Committee, 493rd meeting, Oct. 17, 1955, p. 38, par. 34.

46 Ibid. pars. 35, 37.

47 Ibid. 44, pars. 17, 18. The provision conferring upon Member States the right to initate the review procedure was much debated but it prevailed, because it was deemed an essential feature of the compromise proposal embodied in the final text of Art. 11. See remarks by the representative of the United States, ibid., p. 66, par. 11. The opposition was led by India, which also proposed amendments deleting the words “a Member State.'’ Ibid. 55 ff., 66, and Plenary, p. 280.

47 The Committee on Applications for Review of Administrative Tribunal Judgments was convened at United Nations Headquarters on October 16, 1956, to adopt rules of procedure and consider the first application requesting a review of a judgment of the United Nations Administrative Tribunal. The Committee has since considered several applications and decided in all cases “that there was not a substantial basis for the application under Article 11 of the Statute of the Administrative Tribunal and, therefore, did not consider that the International Court of Justice should be requested to give an advisory opinion.” See Docs. A/AC.86/2, A/AC.86/3, A/AC.86/4, A/AC.86/5. For the revised Provisional Rules of Procedure of the Committee see Doc.A/AC.86/2/ Rev.1.

48 General Assembly, 10th Sess., Official Records, Annexes, Agenda Item 49, p. 38, par. 8.

49 See supra, pp. 17-18.

50 In this connection it is relevant to recall the following statement made by the Secretary General before the Fifth Committee: “ It would likewise be my intention to waive any right which the Secretary General has to further participation in the proceedings before the Court from which the staff member was excluded except, of course, as the Court might specifically require further information.” Loo. tit., Annexes, Agenda Item 49, p. 38, par. 10.

51 [1956] I.C.J. Rep. 77 at 84.

52 lbid. at 107.

53 Ibid. at 166.

54 For a list of instruments stipulating the binding force of Advisory Opinions, see I.C.J. Yearbook 1956-1957, p. 41.

55 For the legislative history of Art. XII, which goes back to a conflict between the League of Nations and its Administrative Tribunal in 1946, see Memorandum by the International Labor Office, I.C.J. Pleadings, United Nations Administrative Tribunal, pp. 46-90, particularly pp. 71-73. The decisive statement of the Sub-Committee of the League Assembly's Second (Finance) Committee is as follows: “Although there is no ordinary appeal from the Tribunal's decision, we think it is within the power of the Assembly, which can best interpret its own decisions, by a legislative resolution, to declare that the awards made by the Tribunal are invalid and are of no effect both because they sought to set aside the Assembly's legislative act and because of their mistaken conclusion as to the intention of that act.” Ibid, at 67.

56 Translated by the author from the French text: “Les formules employées par 1'article XII sont bien, d'autre part, celles de la théorie de l'excès de pouvoir de I'arbitre international; il s'agit dans le texte de article XII de rechercher si la décision est entachée d'un ‘vice', si la ‘ validité’ peut être mise en cause; ces expressions se réfèrent non pas à une réformation de la décision par une voie de recours au sens habituel du terme, mais bien à une ‘nullité’ comme dans la théorie de l'excès de pouvoir de I'arbitre. II serait de même facile de montrer que parmi les vices qui constituent I’excés de pouvoir de I'arbitre on rencontre le plus communément Pabsenee de ‘compétence’ et la ‘faute essentielle dans la procédure.’ “ Ibid, at 210.

57 Here the French Government had reference, albeit indirectly, to the new Art. 11 of the United Nations Administrative Tribunal.

58 Translated by the author from the French text: “Si respectables que soient les intérets des fonctionnaires internationaux, si estimables que soient les efforts envisagés pour leur permettre de faire connaître leur point de vue à la Cour, la procédure de l'article XII pose une toute autre question que celle du ‘bien ou du mal jugé'; la définition de ‘l'excès de pouvoir’ d'un juge est au premier chef une question qui touche au fonctionnement harmonieux des institutions internationales et à I'avenir de 1'Organisation. Qu'on le veuille ou non, en interprétant un texte, l'article XII du Statut du Tribunal administratis la Cour va préciser des notions dont la portfée dépasse singulièrement ce texte; la théorie de l'excès de pouvoir de 1'arbitre international sera directement influencée par l'avis de la Cour.” Ibid to renew fixed-term appointments

59 [1956] I.C.J. Rep. 77 at 99. Question II was as follows: “In the case of an affirmative answer to question I : (a) Was the Administrative Tribunal competent to determine whether the power of the Director-General not to renew fixed-term appointments has been exercised for the good of the service and in the interest of the Organization? (b) Was the Administrative Tribunal competent to pronounce on the attitude which the Director-General, under the terms of the Constitution of the United Nations Educational, Scientific and Cultural Organization, ought to maintain in his relations with a Member State, particularly as regards the execution of the policy of the Government authorities of that Member S t a t e ? “ Ibid, at 79.

60 On the first point see the Written Statement of the United Kingdom, I.C.J. Pleadings, Judgments of the Administrative Tribunal of the I.L.O., p. 214.

61 See Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion of July 13, 1954, [1954] I.C.J. Rep. 47; 48 A.J.I.L. 655 (1954); and Judicial Review of United Nations Administrative Tribunal Judgments, Working Paper submitted by the Secretary General, Doc. A/AC.78/L.1 and Corr. 1 (March 22, 1955), General Assembly, 10th Sess., Official Records, Annexes, Agenda Item 49, pp. 17-25. This paper reviews the history of the question as well as the issues involved.

62 Report of the Special Committee on Review of Administrative Tribunal Judgments, Doc. A/2909, loc cit., Annexes, Agenda Item 49, p. 11, par. 82. See also Report of the Fifth Committee, A/3016, ibid. 38 ff.

63 General Assembly, 10th Sess., Official Records, Plenary Meetings, 541st meeting, Nov. 8, 1955, p. 287, pars. 107, 108. See also Report of the Fifth Committee, loc. cit., Annexes, Agenda Item 49, p. 41, par. 27.

64 Ibid. 40, par. 19.

65 See the Indian proposal summarized in the Report of the Fifth Committee, loc. cit. 41, par. 32; the suggestions submitted by the Secretary General, ibid. 24, and the views of the United Nations Staff Council, ibid. 37, par. 16.

66 [1956] I.C.J. Rep. 77 at 97. See also Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion of July 13, 1954, [1954] I.C.J. Rep. 52-53.

67 45 Annuaire de L'Institut de Droit International (I) 535, 545, 553 (1954).

68 Ibid. 535. For comments by the Rapporteur, Judge Max Huber, of. p. 431. See also observations by Professor A. de La Pradelle, p. 472.