Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice

Not an official document

The question concerning reparation for injuries suffered in tions on the question submittedto it. It proceeds to define cer-
the service of the United Nations, was reft:rred to the Court tain terms in the F!equest for Opinion, then it analyses the
by the General Assembly of the United Nations (Resolution contents of the fofimula: "capacity to bring an international
of the General Assembly dated December 3rd. 1948) in the claim." This capac:ity certainly belongs to a State. Does it
following terms: also belong to the Organization?This is tantamount to asking
"I. In the event of an agent of the IJnited Nations in whether the Organ~izationhas international personality. In
the performance of his duties suffering .injury in circum- answering this question which is not settled by the actual
stances involving the responsibility of a State, has the terms of the Charter, the Court goes on to consider what char-
United Nations, as an Organization, the capacity to bring acteristics the Charter was intended to give to the Organiza-
an international claim against the responsible dejure or de tion. In this connection, the Court states that the Charter con-
facto government with a view to obtaining the reparation ferred upon the Organization rights and obligations which
due in respect of the damage caused (a) to the United are different from those of its Members. The Court stresses,
Nations, (b) to the victim or to persons entitled through further, the important political tasks of the Organization: the
him? maintenance of international peace and security. Accord-
ingly the Court concludes that the Organization possessing as
"11. In the event of an affirmative reply on point I (b), it does rights and obligations, has at the same time a large
how is action by the United Nations to be reconciled with measure of internationalpersonality and the capacity to o p r -
such rights as may be possessed by the State of which the ate upon an international plane, although it is certainly not a
victim is a national?" super-state.
With respect to questions I (a) and I (b), the Court estab- The Court then examines the very heart of the subject,
lished a distinction according to whether the responsible namely, whether the sum of the international rights of the
State is a Member or not of the United Nations. The Court Organization comprises the right to bring an international
unanimously answered answered question I[ (a)in the affir- claim to obtain repamtion from a State in respect of the dam-
mative. On question I (b) the Court was of opinion by 11 age caused by the injiury of an agent of the Organization in the
votes against 4 that the Organization has the capacity to bring course of the perfonnance of his duties.
an international claim whether or not the responsible State is
a Member of the United Nations. On the first point:, I (a), of the Request for Opinion the
Court unanimously ]meaches the conclusion that the Organiza-
Finally, on point 11, the Court was of opinion by 10 votes tion has the capacity to bring an international claim against a
against 5 that when the United Nations as an organization is State (whether a Member or non-member) for damageresult-
bringing a claim for reparation for darnage caused to its ing from a breach by that State of its obligations towards the
agent, it can only do so by basing its claim upon a breach of Organization. The C!ourt points out that it is not called upon
obligations due to itself; respect for this rule 'will usually pre- to determine the p ~ i s extent
e of the reparation which the
vent a conflict between the action of the United Nations and Organization would be entitled to recover; the measure of the
such rights as the agent's national State may possess; more- reparation should delpend upon a number of factors which the
over, this reconciliation must depend up considerations Court gives as examlples.
applicable to each particular case, and upon agreementsto be
made between the Organization and individual States. Then the Court proceeds to examine question I (b),
namely, whether the United Nations, as an Organization, has
The dissenting Judges appended to the Opinion either a the capacity to bring an international claim with a view to
declaration or a statement of the reasons for iwhich they can- obtaining the reparatiion due in respect of the damage caused,
not concur in the Opinion of the Court. l b o other Members not to the Organization itself, but to the victim or to persons
of the Court, while concumng in the Opinion, appended an entitled through him.
additional statement.
In dealing with this point the Court analyses the question
of diplomatic protection of nationals. The Court points out in
this connection that really only the Organization has the
capacity to present a claim in the circumstances referred to,
inasmuch as at the basis of any international claim there must
be a breach by the defendant State of an obligation towards
In its Advisory Opinion, the Court begins by reciting the the Organization. In the present case the State of which the
circumstances of the procedure. The Request for Opinion victim is a national ccruld not complain of a breach of an obli-
was communicated to all States entitled to appear before the gation towards itself. Here the obligation is assumed in
Court; they were further informed that the Court was pre- favour of the Organization. However, the Court admits that
pared to receive information from them. Thur;, written state- the analogy of the traditional rule of diplomatic protection of
ments were sent by the following States: India, China, nationals abroad does not in itself justify an affirmativereply.
United States of America, United Kingdom d Great Britain In fact, there exists no1 link of nationality between the Organi-
and Northern Ireland and France. In addition, oral statements zation and its agents. This is a new situation and it must be
were presented before the Court by a representative of the analysed. Do the prc~visionsof the Charter relating to the
Secretary-General of the United Nations, assmistedby coun- functions of the Organization imply that the latter is empow-
sel, and by the representatives of the Belgian, French and ered to assure its agents limited protection? These powers,
United Kingdom Governments. which are essential to the performanceof the functions of the
Then the Court makes a number of preliminary observa- Organization, must be regarded as a necessary implication
arising from the Charter. Irr discharging its functions, the Question No. I1 of the General Assembly refers to the rec-
Organization may find it necessary to entrust its agents with oncilirltion of action by the United Nations with such rights
important missions to be performed in distu~rbedparts of the as mqy be possessed by the State of which the victim is a
world. These agents must be ensured of effective protection. national. In other words, what is involved is possible compe-
It is only in this way that the agent will be able to carry out tition between the rights of diplomatic protection on the one
his duties satisfactorily. The Court therefore reaches the con- hand md functional protection on the other. The Court does
clusion that the Organization has the ciipacity to exer- not sate here which of these two categories of protection
cise functional protection in respect of its agents. The situa- should have priority and in the case of Member States it
tion is comparatively simplc: in the case of Member States, stresses their duty to render every assistance provided by
for these have assumed viuious obligations towards the Article 2 of the Charter. It adds that the risk of competition
Organization. between the Organization and the national State can be
But what is the situation when a claim is brought against a reduced or eliminated either by a general convention or by
State which is not a Member of the Organization? The Court agreements entered into in each particular case, and it refers
is of opinion that the Members of the United Nations created further to cases that have already arisen in which a practical
an entity possessing objective internationa:l personality and solution has already been found.
not merely personality recognized by them alone. As in the Finally, the Court examines the case in which the agent
case of Question I (a),the C411urttherefore answers Question I bears the nationality of the defendant State. Since the claim
(6)in the affirmative. brought by the Organization is not based upon the nationality
of the victim but rather upon his status a!; an agent of the
Organization, it does not matter whether or not the State to
which the claim is addressed regards him as its own national.
The legal situation is not modified thereby.