PUBLIC INTERNATIONAL LAW- ASSIGNMENT

Submitted By
Ramasayi Gummadi
BC0180042

1. Frame your own definition of ‘Legal Personality’ after reading the articles.

A. An individual, group of individuals or an entity who is subject to the International Law

with rights and liabilities conferred upon the entity with special reference to its
functioning and its ability to uphold the sanctity of the rights that so are conferred by
an instrument or by the will of the creator through is/are known as a Legal Personality.

2. Critically comment on the affirmative decision made by the International Court

of Justice in the Reparation of Injuries case, 1949 pertaining to the first issue. Also
state your opinion on the legal personality of the UN in the context of Gazinnii’s
Article

A. Speaking critically I am of the opinion that the court’s opinion that the United Nations
has the Right to seek reparation is indeed valid however, with the court failing to shed
light on the issues that so can arise pertaining to a claim of reparation, if so put forward.
I would also like to comment that such an approach with emphasis on the International
Presence of the UN with reference to the nature of its work as under the charter and the
practical applications of the same is more or less an attempt to suggest that the Right to
seek reparation is one litmus test which an establishment must pass in order to
contemplate if it has a Legal Personality at all and vice versa. Speaking of the Legal
Personality as such with special emphasis on the Decision as well as the Gazinnii’s
article, we see that the UN inevitably has the legal personality as such and it is much
more pronounced. Speaking of the Opinion of the ICJ, we see that it talks about the
presence of Rights and Liabilities in determining the Legal Personality of the UN, while
we take into consideration the fact that the Charter of United Nations, which is the crux
of the UN as a whole talks about the Rights and liabilities of the UN as well as the
parties to the document, we can very well come to a conclusion that the UN has a legal
personality. This sort of an approach however as under the Gazinnii’s article minorly
falls under the Objective Theory of Legal Personality which talks about the fact that it
is not the instrument but the intention of the framers that gives the organization the legal
personality it deserves while majorly falling under the much criticized Will Theory
which talks about the legal personality that is determined by the instrument that forms
the organization which was criticized a lot for its impracticality. I support the opinion
of the Court and am of the view that the UN has a distinguished legal personality that
comes under the scope of Gazinnii’s article
3. Do you concur with the decision of the court when it decides that “the legal
situation remains the same, even if the UN agent’s national state is a member of
UN or not”. State with the rationale behind your argument.

A. Yes, I do concur with the decision of the court taking into account the fact that such a
claim for reparation is nowhere related to the citizenship of the UN Agent for, we can
see that of being an agent of UN he is working under the scope of United Nations and
a threat to the agent’s existence must be viewed as a mere threat to the United Nations
as a whole which more or less is a threat to International Peace and Security, owing to
the fact that the UN in itself is a conglomeration of almost all the countries in the world.
Now, irrespective of the fact that they are a member or not of the United Nations, the
court rather termed it as “Parties” which shows no specificity and is more or less
universal. It has to be noted that the court indirectly places an obligation on the UN to
prove that there is a violation of the International Obligation by the offender state as a
result of which It really makes little to no difference with regards to the membership of
the state in the United Nations. And not to mention owing to the fact that the UN has
its own rights and liabilities and has an international presence, neither its legal
personality, nor its right to seek reparation is affected by the Nationality of the agent.

4. UN’s right to claim reparation was decided affirmatively in this case. Does this
also mean, UN takes its responsible for the damages or injuries caused by its agent
to other people/state? Frame your opinion after reading the “Cholera outbreak in
Haiti”, where UN is also responsible for the same.

A. First of all while we take into account the reparation, it is more or less of the nature of
a two-way road, for it is a well-accepted principle that he who sues can be sued failure
of which is in dire violation of the concept of Legal Personality as a whole. While the
charter doesn’t explicitly talk about the way the United Nations can be sued it is to be
understood that taking into consideration the fact that being a legal personality it also
has a liability to take incase it confers any harm to the International Community as a
whole. The UN had inadvertently erred in being the cause of such an outbreak in Haiti
through the International Peace-keeping forces which is considered as an agent of the
UN for, it is an organ which is under the direct control of the UN. When we look into
the UN’s right to claim reparation, we observe that the same is based on the rights and
liabilities conferred to it and also it’s international presence as reasoned by the court.
Similarly, when we look at a country such as Haiti which has an International Presence
as not just a member of UN but under the Charter it also has a set of rights and liabilities
that are conferred. Using the same approach of the court we can very well say that such
a country obviously has the right to seek reparation. While more or less, for a better
understanding of my answer, we could just shift the places of Haiti to that of UN’s and
the population affected to that of the Mediator’s and the UN’s to that of the offender
nation’s, so that we can see as to how the judgement applies inadvertently.
AUTHOR’S OPINIONS
Let us look into the facts of the Reparation case as such. It refers to an assassination that took
place in September 1948, of Count Folke Bernadotte who Is a mediator of the United Nations.
It is imperative to note the fact that considering the fact that he is an employee of United
Nations, he is invariably called the Agent of United Nations, but let us examine if he comes
under the scope of the same with the backing up of a statute. Taking into consideration the
Article 2(d) of the Articles on the Responsibility of International Organisations which states
that-

“agent of an international organization” means an official or other person or entity, other

than an organ, who is charged by the organization with carrying out, or helping to carry out,
one of its functions, and thus through whom the organization acts.

Based on the bare reading of the provision we can see that the pre-requisites for someone to be
considered as an agent of a party is that- The individual under this circumstance must be an
official or an entity, The individual must work under the scope of the organisation while
carrying out the functions of the same. In this case, we see that the Agent who was killed by
the forces is an individual and is working towards the functions of the United Nations as defined
under Article 1 of the Charter of United Nations- that is,
1. Maintenance of International Peace and Security
2. Development of Friendly International Relations
3. International Co-operation
Which are much required pertaining to the tensions that existed and not to mention still exists
pertaining to the Israel-Palestinian Conflict. Now, the second question arises right from the
definition of the Agent as to how exactly does United Nations come under the scope of an
“International Organisation” for it to have an agent as such, as defined under the provisions of
the ARIO.

“International organization” means an organization established by a treaty or other

instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States, other
entities”

When we look Into the emboldened points we ought to note that for the United Nations to be
considered as an International Organization it has to be established by a treaty or an instrument
which as a matter of fact is true in the case of United Nations with special emphasis on the
Charter merely gave the foundation for the functioning of United Nations. While I would love
to comment on the “Legal personality” aspect of the UN, later it is to be noted that such a status
was established by the International Court of Justice in the aforementioned case, going by
which we can further hold that the UN is an International Organization and the individual who
is the mediator was an agent of such an International Organisation. In the facts of the case the
UN General Assembly has asked the opinion of the International Court of Justice as to if the
UN has the capacity to seek reparation for the state responsibility. Irrespective of the outcome
of the judgement let me put forward my preliminary observations with regards to the same.
First of all this act of the UN General Assembly is valid as under Chapter 14 of the Charter,
Article 96(a) which states that-

“ a. The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question.”
However it is more or less puzzling as to what sort of an effect does such an opinion have
pertaining to the functioning of the United Nations as a whole. Because, first of all the UN’s
recognition of such a legal opinion might only be taken into account by its member nations,
while the legitimacy of the same is unknown. Further, one important question that keeps arising
is, Which platform will be used for dealing with the issues between the United Nations and the
member/non-member states? The same was not even answered in the opinion which as a matter
of fact is a matter of concern because assuming that the cases are to be dealt in the International
Court of Justice, the following issues arise-
Firstly, it is well established that the statute of the International Court of Justice in Chapter II,
Art 34(1) states that-
“1. Only states may be parties in cases before the Court.”
Now considering the fact that only the states who are parties to the statute of the International
Court of Justice will be able to put forward their cases, the ICJ in itself will not be the competent
authority for the trial of cases involving the state and the UN as a whole. Such an arrangement
of the International Court of Justice indirectly states that the UN cannot be sued under its own
judicial mechanism which inadvertently is arbitrary in nature. While not to mention, UN neither
can sue a country in its own judicial establishment which is a matter of concern taking into
consideration the fact that it goes against the very opinion of the International Court of Justice
which is something to be frowned upon. Further elucidating upon my point, what is the point
of giving the right to reparation and recognising the UN as a legal personality when the Court
in itself doesn’t provide for the same as under the blind interpretation of the statute. It is further
imperative to note that while the UN in itself has an Internal Justice System in the United
Nations, it neither tried to answer the question pertaining to the place in which UN can sue or
can be sued, which is a matter of concern owing to the responsibility it owes to the International
Community at large. While we may argue that UN can bring up the same issue under the
discussions of General Assembly or the Security Council, I am of the opinion that going by the
structure and the vote-based decision making personality of these organs of the United Nations
are of legislative nature and not to mention their flow is moderated by the Secretary General,
The Presidents of the Committees which as a matter of fact doesn’t seem valid and might
invalidate the principle of “The individual cannot be a judge in his own case”. Further, it is
imperative to note that Assuming that in the RAREST OF THE RARE cases the International
Court of Justice makes an exception and trials such a case, the judgement of the case cannot be
enforced and the only way the countries can be made to abide by the same is through bringing
up the Judgement into discussion in the Security Council as under Art 94(2) which states that-

“If any party to a case fails to perform the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have recourse to the Security Council, which may,
if it deems necessary, make recommendations or decide upon measures to be taken to give
effect to the judgment.”
Which again is not judicial in nature and not to mention might be politicised with emphasis on
the interests of the P5 nations and the members of the UNSC which as a matter of fact is tedious
and an inefficient process.
While I’ve discussed enough with regards to the outcome of the Advisory opinion, I’d like to
further elucidate as to what actually makes sense pertaining to the right to seek reparation.
While we see that the ICJ is blank with regards to the status of UN to be a party In the cases
the court deals with, it is imperative to note that we might invoke Chapter VII of the Charter
as well, in determining the same. First of all, although we understand that the UNSC is in dire
need of reforms with emphasis on the Permanent Nations system, that is the only way the
decisions can be made actionable. First of all, looking into the facts of the case the United
Nations is more or less wide in its scope and functioning which is affirmed by the ICJ as such
in its opinion. Such an international attack on the agent of the United Nations is in such a way
that can attract the interference of the UNSC. Such an attack on the Agent of conglomeration
of Countries endangers the International Peace and Security as a whole. One important aspect
to note is that as under Art 93(2) of the Charter of United Nations it states that-

“A state which is not a Member of the United Nations may become a party to the Statute of the
International Court of Justice on conditions to be determined in each case by the General
Assembly upon the recommendation of the Security Council.”

Which paves way for the trial of a country who is not a part of UN to also be liable under such
a circumstance where a plea to seek reparation is put forward. While an argument will be put
forward that the UN can by itself become a party as such to the statute in order to be put under
a trial, based on my reading of the statute such an interpretation seems far fetched and
impractical. There is one way through which the United Nations can actually go ahead and
seek reparation, which even farfetched is the only option. Taking into consideration the fact
that the member nations of the UN who are parties to the Charter of United Nations more or
less signed up to be the “Agents of the United Nations” it is imperative to note that the United
Nation can advocate any of its member nations to represent it in such a claim for reparation
irrespective of who the defendant is. Not to mention, it is imperative that such an agent more
or less performs the function of the United Nations as well which it to secure its rights as under
the definition of Agent of an International Organisation as under the ARIO. Now considering
the fact that I am considering the parties to the UN Charter as the Agents of UN, a question
arises as to how the liability has to be extended. The opinion of the ICJ is pretty beneficial and
great, yes, but it doesn’t provide adequate clarity as to how exactly will be liability will be
conferred if these states perform something under the scope of the United Nations and the other
state seeks reparation.
While a question was considered by the court with special emphasis on the legality of an
organisation o file a suit for reparation as under the International Court of Justice I am of the
fact that the court did not even try to answer it and the approach of the court took a turn in order
to answer a completely different question with regards to the legal personality of the United
Nations which is more or less something laughable taking into consideration the fact that while
the court jas recognised the legal personality and the right to seek such a reparation it had not
conferred the right of the United Nations to appear before the ICJ. While the court tries to
equate such a representation of the organisation in the ICJ to that of the International
Personality and has established the International Personality, no substantial amendments were
made to the statute of the International Court of Justice Pertaining to the same which indicates
the inefficiency in the working of the International Court of Justice. The assumption of the
International Court of Justice pertaining to such a legal personality is more or less on the lines
of Objective theory as mentioned by Gazinni in his article which in short talks about the
derivation of such an international identity with special emphasis on the way the UN works
and the object of UN which more or less seems practical based on my observation. This is
however subject to a drawback, that is, it is based on the presumption created by the “Concrete
performance” of the acts performed by the organisation as a legal entity which doesn’t talk
much about the scope of such a presumption as to how exactly can such a presumption be
challenged and how exactly can the acts of such an international personality be explained as
with regards to the International Responsibility that so is conferred upon it, or in very simple
terms, the liabilities that so are laid upon it. While speaking of the Will based acquisition of
the status of Legal Personality, one has to understand that it just doesn’t make any sense to give
legal personality to an organisation that exists on paper to whom the rights are granted by the
respective instrument. While we take into account the objective based acquisition we can take
into account the Articles 41,42,43,63 and 75 of the Charter of United Nations which more or
less talks about the intention of the founders to give the United Nations the status of a legal
personality. Going by such an interpretation of the judgement as well as Gazinii’s commentary
on the same I am of the opinion that the exercise of power conferred upon he organisation
which might or might not have been enshrined under its mandate is the only way through which
an organisation can acquire International Personality and an effective legal recognition as such.
Another question that arises when we are determining if the UN can come under the scope of
a state as under the ambit of ICJ, it is important to understand that UN is more or less broad
when compared to the general ambit of the state as a result of which there are two main
differences between the legal personality of a general state or a member state as such pertaining
to the UN’s membership and the UN as a whole. It is important to note that UN cannot be put
to trial in the same way as the other states, because, the UN’s legal personality Is more or less
general and broad in its essence while in the case of the normal state, there is a general
competence it enjoys. Further, the United Nations unlike that of the State parties don’t enjoy a
control over a set boundary or a given population which was further asserted in the commentary
of Gazinnii. Further, although international organizations lack a permanent territorial basis,
they may in exceptional cases administer territories and exercise
governmental powers over them1.
With regards to the question if the UN can be sued by any other member/non-member nation
under the ICJ it is imperative to note down the fact that the ICJ has no explicit clause that talks
about the same which brings out the question if the ICJ is trying to protect the UN and is acting
arbitrary. Not to mention I am of the opinion that going by the same interpretation of the Court
we can establish that the individual countries themselves have their own legal personality with
their administration defined by their respective constitution that gives it the rights and
liabilities, not to mention with the various International Treaties that list out the same. Now

1
Personality of international organizations, Tarcisio Gazzini
considering the fact that these countries have their own legal personality that is established
based upon their functioning as such, the presence of the right to claim reparation cannot be
disputed at all. Now, when a member nation is acting under the scope of UN, the acts of such
a member nation Is more or less aid to be of the nature of acts that are performed by an agent
of the International Organisation. The scope of such acts are provided as under Art 6(1) and 7
of the ARIO which state that-

“ The conduct of an organ or agent of an international organization in the performance of

functions of that organ or agent shall be considered an act of that organization under
international law, whatever position the organ or agent holds in respect of the organization”

“The conduct of an organ of a State or an organ or agent of an international organization that

is placed at the disposal of another international organization shall be considered under
international law an act of the latter organization if the organization exercises
effective control over that conduct.”

Now when we look into the act of the UN peacekeeping forces, it is an agent that is acting
under the scope of United Nations at the disposal of the organisation as a result of which the
UN will be responsible for any issue that so arises with the way the UNPKF is functioning in
the state. Not to mention the significance of these two provisions mainly glorifies the “qui facit
par alium facit par se” maximum which places the liability of the acts of the agents of UN on
the UN. Thus, UN Can be sued (to seek reparation) not just for its acts but also for the acts of
the agents of UN performing under the scope of it’s functioning. While we can come to the
aforementioned conclusions I am of the opinion that the reforms in the statute of the
International Court of Justice or with regards to the UN as a whole is more or less farfetched
taking into consideration the fact that the process is usually complicated due to various tensions
that prevail among the members of the United Nations as a whole and not to mention I clearly
wonder as to how exactly can the United Nations be given any immunity with regards to it
being sued. Not to mention, it is noteworthy that the expert opinion came around 1949 and not
to mention no substantial efforts were taken to take into consideration the discrepancies that so
arise. This calls for an immediate reform in the mandate of the International Court of Justice
so as to uphold the viability of the tag of “International Judiciary” it enjoys and the sanctity of
the International Law.
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