Reparation of Injuries Suffered in the Service of the United Nations

(Advisory Opinion of 11 April 1949)

BRIEF BACKGROUND OF THE CASE

The United Nations (Hereinafter UN) carries out its functions and responsibilities through
persons authorized to be its agents or ambassadors who act as the international organization’s
representatives and perform their duties. With the rise of UN as pivotal international
organization in the international arena, there were also instances where agents of the UN
were attacked and hurt while performing their duties. In one such instance, Count Folk
Bernadotte, a Swedish diplomat, appointed as a mediator by the UNSC during the Arab-Israel
Conflict of 1947-1948 was assassinated by an Israeli citizen. Israel was not a member of the
UN at the time.

FACTS

Following the assassination of Court Bernadotte, the General Assembly via Resolution dated
December 3, 1948, requested the International Court of Justice (Hereinafter ICJ) to give an
Advisory Opinion on the capacity of UN to bring an international claim as an organization
against non-member states seeking reparation for injuries and harms suffered by its personnel
in its service as well as on the lines of diplomatic protections.

ISSUE

The primary and overarching legal question that the ICJ dealt with was Whether International
Organizations have a ‘distinct legal personality’, the other issues were,
- Has the UN Charter afforded a legal position to the UN that is akin to rights and
duties states enjoy?
- Whether “In the event of an agent of the United Nations in the performance of his
duties suffering injury in circumstances involving the responsibility of a State, has
the United Nations as an organization has capacity to bring international claim
against responsible de jure or de facto government in obtaining reparation due
considering the damages caused to (a) the organization, i.e., UN and (b) to the
victims or the persons entitled through him”1?
- How to deal with the competition between the State’s right of diplomatic
protection of which the victim is a national and the Organization’s right of
functional protection?
- Can claim be brought against a non-member state?

RULE

1
Reparation for injuries suffered in the service of the Nations, Advisory Opinion, 1949 ICJ Rep 174
Art 2(5) – Defined the position of members in relation to the UN and the requirement that
they assist it in any action it takes in accordance with the Charter2
Art 25 – To agree and carry out the decisions of the Security Council
Art 10 - The General assembly’s capacity to make recommendations to UN members and
Security Council
Arts 104 – “The Organization shall enjoy in its territory of each of its Members such legal
capacity as may be necessary for the exercise of its functions and the fulfillment of its
purpose”3
Arts 105 – The Organization shall enjoy in the territory of each of its Members such
privileges and immunities as are necessary for the fulfillment of its purposes.4
Art 43 – deals with conclusion of treaties between the UN and its Members5.

APPLICATION

- Whether International Organizations have a ‘distinct legal personality’?

In absence of an express provision in the Charter conferring international legal personality to

the UN, the Court examined the above-mentioned rights and functions of the International
Organizations provided in the Charter and which could also be found in other treaties and
conventions. The Court specifically went on to mention the S.35 of “Convention on the
Privileges and Immunities of the United Nations” of 1946 that creates rights and duties
between each of the signatories and the Organization and stressed that the convention could
not operate without the existence of an international personality of all its parties 6.
Upon consideration of the implications of above-mentioned provisions as well as the
instrument, the court opined that for the UN to fulfil its task and to carry out the intentions of
its founders, “the attribution of international personality is indispensable”7

- Has the UN Charter afforded a legal position to the UN that is akin to rights and
duties states enjoy?

The Court clarified that the legal personality of the UN and the rights and duties which are
associated with it are not the same as those accorded to a State neither does it put the
organization’s rights and duties at a higher pedestal than a state or vice-versa. The Court’s
main opinion recognized International Organization as a subject of international law and is
thereby capable of possessing international rights and duties and ultimately possess the
capacity to maintain its rights by bringing international claims8.

- Whether “In the event of an agent of the United Nations in the performance of his
duties suffering injury in circumstances involving the responsibility of a State, has the
United Nations as an organization has capacity to bring international claim against
responsible de jure or de facto government in obtaining reparation due considering the
damages caused to (a) the organization, i.e., UN and (b) to the victims or the persons
entitled through him”9?
2
United Nations, Charter of the united Nations, 24 October 1945, www.un.org [Accessed 12 November 2021]
3
Ibid
4
Ibid
5
Ian Brownlie, Principles of Public International law (7th ed, OUP, Oxford, 2008) at 677.
6
Mrinal Verma, A Brief Analysis of the ICJ’s Advisory Opinion in the Reparations for injuries Case
7
Ibid.
8
Ibid
9
Supra n. 1
While answering part (a) in the affirmative, the Court on part (b) of this issue relied upon
principle applied by PCIJ in its advisory opinion to the ILO 10 and opined that “Under
international law, the Organization must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by the necessary implication as being
essential to the performance of its duties. it was opined further that as the organization
entrusts its agents with important missions in different parts of the world, the nature of
injuries may be such that the national State of the victim would not be justified in bringing a
claim for reparation on ground of diplomatic protection.

- Can claim be brought against a non-member state?

Most importantly, on the capacity to bring a claim against de jure and de facto government
when the defendant State is not a member of the Organization, the Court opined that an
international personality recognized only by its members alone wouldn’t at all be sufficient
and the organization required an ‘objective international personality’ which would allow it to
bring claims against non-member states as well. Thereby, the court concluded that a claim
can be brought against responsible state irrespective of whether it is a Member of the UN or
not.

- How to deal with the competition between the State’s right of diplomatic protection of
which the victim is a national and the Organization’s right of functional protection?

The Court in this context opined that the rule of law does not prioritize one claim over the
other and called upon the duty of Members to provide “every assistance” as per Art 2, para 5
of the Charter by finding solutions inspired by goodwill. The Court emphasized upon the role
of international tribunals and opined that the risk of competition between the Organization
and national state can be reduced or eliminated “either by a general convention or by
agreements entered into each particular case”11

ANALYSIS

Scholars like Jan Klabbers described the reasoning behind the decision in this case according
to 2 theories. The first being ‘Subjective’ or the ‘Will’ Theory and second, ‘Objective’
Theory. According to the Will Theory school, the acquisition of international legal
personality relies upon the subjective intentions/ ‘will’ of the founding member states. Going
by this theory it is argued that the court operates on a presumption where an international
organization will have a legal personality unless founding member states have expressly
stated otherwise. This theory may be applied to this case according to Klabbers as the court
worked on the same presumption based on the organization’s obligations and powers and this
presumption of the court was also never challenged12.
However, the problem with this theory is that there may be cases where the founding
documents and obligations do not sufficiently express the ‘will’ of the founding member
states which would mean that international personality is simply absent.
10
Permanent Court of International Justice, No. 13 of Jul 23rd 1926
11
Supra n.1
12
Ibid
Originally propounded by Finn Seyersted, an alternative and better suited, ‘Objective
Theory’, holds that by performing certain functions on an international plane and complying
with a particular set of criteria, the international legal system grants organizations the
capacity to bear rights and owe obligations enforceable under international law, regardless of
the ‘intentions’ of their founding member states13. In the Reparation case as well, the court
abided by this theory but in a limited way, only in context of granting capacity to bring
claims against non-member states. According to this theory, the legal personality is bestowed
through the ‘objective’ operation of internal law.

In this case, the ICJ dealt with the extent of the personality of international organizations and
stated that “Whereas a State possesses the totality of international rights and duties
recognized by international law, 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.”

This opinion was instrumental in not just giving juridical recognition to the international
personality of the UN, but a principle was laid down concerning the construction of Charter
which is significant- “Under international Law, the Organization must be deemed to have
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”.
We may observe however, that the Reparation case has not set any objective criteria for an
organization to possess international personality and left it rather subjective. On the question
of reparation, it may rightly be called as the first step towards determination of ultimate
responsibility and capacity of international organizations in incidents like these.

CONCLUSION

By recognizing international organizations as having a legal personality, the case established

the organization as well as its agents the primary subjects of international law. This case has
allowed for the resolution of the controversy that existed prior to this advisory opinion of the
ICJ on whether international organizations are subject of international law. This case has
successfully set a precedent in determining the ability of an organization to interact with other
actors in the field of international law.

13
Ibid.