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Max Planck Encyclopedia of Public International Law [MPEPIL]

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)

Pierre d'Argent

Subject(s):
United Nations (UN) — Reparations

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Factual Background

The factual background of the second advisory opinion to be delivered by the International Court of Justice (ICJ) is the series of tragic incidents directed against United Nations (UN) personnel in Palestine that culminated in the assassination, on 17 September 1948, of Count Folke Bernadotte of Sweden, the UN mediator in the Palestine conflict, and of Colonel André Sérot, a French UN observer (Advisory Opinions). These murders were attributed to a group of Israeli extremists—the Stern Group—whose members had so far failed to be arrested and prosecuted by the Israeli authorities (Terrorism). At the request of the UN Secretary-General, the UN General Assembly addressed several legal questions to the ICJ in order to assert the capacity of the organization to bring claims for reparations due in respect of damages caused to itself and to its agents, and to elucidate the conditions governing the presentation of such claims, be they directed against a Member or a non-Member State (UNGA Res 258 [III] [3 December 1948] United Nations, General Assembly; United Nations, Secretary-General). It may indeed be recalled that the assassination took place after Israel declared independence on 14 May 1948 but before it was admitted to the UN on 11 May 1949. The advisory opinion was delivered on 11 April 1949.

B.  Questions Raised

Two questions were put to the Court. The first was about the capacity of the UN, as an international organization and in the event of one of its agents suffering injury in the performance of its duties in circumstances involving the responsibility of a State, ‘to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused a) to the United Nations, b) to the victim or to persons entitled through him’ (Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion] [‘Reparation for Injuries’] 175 ; Claims, International; De facto Organs of a State; International Organizations or Institutions, General Aspects; State Responsibility). If the Court replied affirmatively to point b) of this question, the second question related to the reconciliation of the UN claim with the one that could be brought by the national State of the victim.

After having construed the word ‘“agent” in the most liberal sense’ (Reparation for Injuries 177), the Court supposed that the damage resulted from a failure to perform an obligation of protection due to the UN personnel by the State against which the claim was directed. The court addressed each part of the first question by assuming that the responsible State was a member of the UN; it dealt later with the situation of the defendant being a non-Member State (International Organizations or Institutions, Membership).

The central question being related to the ‘capacity to bring an international claim’ (ibid 175), the Court had to define what is meant by such capacity and whether it belongs not only to States but also to an international organization. The Court considered that the capacity to bring an international claim meant ‘the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims’ (ibid 177). In order to determine whether the UN had such capacity, the Court inquired first about its international personality. This part of the opinion is rather doctrinal since the international personality of the UN was not disputed before the Court. Historically, the fact that the actual words of the United Nations Charter (‘UN Charter’) did not settle the issue was because the drafters considered it superfluous to make a specific provision for that purpose. The scope of Art. 104 UN Charter (1997) to which no reference is made by the Court is thus implicitly limited to the domestic legal capacity of the UN. Considering that ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’ (ibid 178), the Court analysed the intention of the drafters of the UN Charter, the characteristics of the organization and its practice of contracting treaties (United Nations Charter, Interpretation of). It concluded unanimously that the UN is ‘an international person’ (ibid 179). The court stressed that the international legal personality of the organization—which could not be considered as ‘a super-State’ (ibid)—was certainly not identical to that of a State since ‘the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’ (ibid 180). Nevertheless, as a subject of international law, the organization was ‘capable of possessing international rights and duties’ (ibid 179) and had ‘capacity to maintain its rights by bringing international claims’ (ibid). Such capacity included the capacity to bring a claim of the kind described in the question asked by the UN General Assembly, because the ‘functions of the Organization are of such a character that they could not be effectively discharged’ (ibid 180) without the endowment of such capacity. In other words, the Court considered such capacity inherent in the international legal personality of the organization.

On point a) of the first question, the Court unanimously found it ‘clear’ (ibid) that the UN had the capacity to bring a claim in relation to damage caused to itself, ie ‘to its administrative machine, to its property and assets, and to the interests of which it is the guardian’ (ibid). The court indicated that the ‘measure of the reparation should depend upon the amount of the damage which the Organization had suffered as the result of the wrongful act or omission of the defendant State and should be calculated in accordance with the rules of international law’ (ibid 181).

Turning to point b) of the first question, the Court argued that the traditional diplomatic protection rule of the nationality of claims did not prevent the organization claiming damages caused to the victim, since the ground of such claim would be the breach of an obligation owed to the organization itself, namely an ‘obligation designed to help an agent of the Organization in the performance of his duties’ (ibid 182; International Organizations or Institutions, Implied Powers). Admitting that it was ‘faced with a new situation’ (Reparation for Injuries [Dissenting Opinion by Judge Badawi Pasha] 213), the Court enounced the theory of implied powers of international organizations by considering that the UN ‘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’ (ibid). By 11 votes against 4 the Court ruled that the ‘functional protection’ (Reparation for Injuries 184) of the agents by the organization ‘arises by necessary intendment out of the Charter’ (ibid) as it was essential in order to ensure the good and independent performance of his duties. The logic of functional protection is similar to the one of diplomatic protection since ‘claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization’ (ibid). The four dissenting judges—the Soviet judge Krylov concurring with the American judge Hackworth—criticized such innovative understanding of the rules and considered that a claim on behalf of an individual could only be made by its national State.

After having answered both parts of the first question assuming that the defendant was a Member State of the UN, the Court dealt with the capacity of the UN to address a reparation claim to a non-Member State. With the same majorities, the Court again answered positively to the two parts of the first question, stating its opinion in a short and decisive dictum which has remained famous:

[F]ifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. (Ibid 185)

Finally, the Court addressed the second question, which related to the potential competition between the State acting in diplomatic protection of its national and the organization acting in functional protection of its agent. By ten votes against five, the Court held that conflict between those claims would usually be prevented because the organization could only base its claim upon a breach of an obligation due to itself. Considering that none of those two possible claims—which have different bases—had priority over the other one, and that neither the national State nor the organization had a duty to refrain from bringing such claims, the Court appealed to the parties concerned to ‘find solutions inspired by goodwill and common sense’ (ibid 186), stressing that Art. 2 (5) UN Charter might be of relevance in that regard. A dual claim could however not result in a dual indemnity of the same damage. The court qualified as ‘ordinary practice’ (ibid)—and not as a rule—the fact that States usually refrain from protecting nationals when they are also considered as nationals by the defendant State (Multiple Nationality). Such practice was however of no relevance as far as the action of the organization was concerned, since it was based purely on the status of the victim as an agent of the organization. Therefore, the functional protection of the agent against its national State was, as a matter of principle, admissible.

C.  Assessment and Relevance

On the basis of the Court’s opinion, the UN General Assembly authorized the UN Secretary-General to press for a claim (UNGA Res 365 [IV] [1 December 1949]). Hence, in April 1950, Israel was asked to present a formal apology (Satisfaction), to arrest the culprits and to pay an indemnity of $54,624 (UNGA ‘Annual Report of the Secretary-General on the Work of the Organization [1 July 1949–30 June 1950]’ GAOR 5th Session Supp 1, 124). This sum related only to the damage suffered by the UN itself, as the family of Count Bernadotte did not present any claim. All rights relating to the death of Colonel Sérot were expressly reserved. In June 1950, Israel remitted the claimed sum as reparation for the monetary damage borne by the UN in connexion with the death of Count Bernadotte, and expressed ‘its most sincere regret that this dastardly assassination took place on Israeli territory, and that despite all its efforts the criminals have gone undetected’ (UNSC ‘Letter Dated 14 June 1950 from the Minister for Foreign Affairs of the Government of Israel to the Secretary-General concerning a Claim for Damage Caused to the United Nations by the Assassination of Count Folke Bernadotte and a Reply Thereto from the Secretary-General’ [14 June 1950] UN Doc S/1506). The Israeli government explained at length why it considered that, failing new evidence, the re-examination of the case—which it did not regard as closed—was unlikely to be successful. The UN Secretary-General considered this to ‘constitute substantial compliance’ (ibid) by Israel with the UN claim (Compliance).

10  The opinion may be considered as having laid the foundations for the development of treaties relating to the protection of UN personnel, notably the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the Convention on the Safety of United Nations and Associated Personnel, and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (Civil Service, International).

11  The opinion has become standard reference in any textbook addressing the legal personality, capacity and competences—three different concepts that are not clearly distinguished by the opinion—of international organizations. The dictum on the objective personality of the UN, even if sometimes questioned when applied to other organizations, is certainly settled law. The same can be said about the implied powers doctrine and the principle of functional protection. In relation to the World Health Organization (WHO), the Court recalled the implied powers doctrine developed in Reparation for Injuries (Nuclear Weapons Advisory Opinions). Even if dealing with a specific organization—the UN—the opinion is usually referred to when addressing issues relating to the international personality and capacity of any intergovernmental organization. More specifically, it has been relied on in legal doctrine in order to affirm the legal personality of the European Union (European Union, Historical Evolution).

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