On December 3rd, 1948, the General Assembly of the United Nations adopted the following
Resolution:
“Whereas the series of tragic events which have lately befallen agents of the United Nations
engaged in the performance of their duties raises, with greater urgency than ever, the question
of the arrangements to be made by the United Nations with a view to ensuring to its agents
the fullest measure of protection in the future and ensuring that reparation be made for the
injuries suffered; and
Whereas it is highly desirable that the Secretary General should be able to act without
question as efficaciously as possible with a view to obtaining any reparation due; therefore
The General Assembly
Decides to submit the following legal questions to the International Court of Justice for an
advisory opinion:
1. 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, the capacity 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?
2. In the event of an affirmative reply on point 1 (b), how is action by the United
Nations to be reconciled with such rights as may be possessed by the State of which
the victim is a national?
A State can bring an international claim against another State. Such a claim takes the form of
a claim between two political entities equal in law, similar in form, and both the direct
subjects of international law. It is dealt with by means of negotiation, and cannot, in the
present state of the law as to international jurisdiction, be submitted to a tribunal, except with
the consent of the States concerned.
When the Organization brings a claim against one of its Members, this claim will be
presented in the same manner, and regulated by the same procedure. It may, when necessary,
be supported by the political means at the disposal of the Organization. In these ways the
Organization would find a method for securing the observance of its rights by the Member
against which it has a claim. But, in the international sphere, has the Organization such a
nature as involves the capacity to bring an international claim ?
In order to answer this question, the Court must first enquire whether the Charter has given
the Organization such a position that it possesses, in regard to its Members, rights which it is
entitled to ask them to respect. In other words, does the Organization possess international
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personality? This is no doubt a doctrinal expression, which has sometimes given rise to
controversy. But it will be used here to mean that if the Organization is recognized as having
that personality, it is an entity capable of availing itself of obligations incumbent upon its
Members. To answer this question, which is not settled by the actual terms of the Charter, we
must consider what characteristics it was intended thereby to give to the Organization.
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. Throughout
its history, the development of international law has been influenced by the requirements of
international life, and the progressive increase in the collective activities of States has already
given rise to instances of action upon the international plane by certain entities which are not
States. This development culminated in the establishment in June 1945 of an international
organization whose purposes and principles are specified in the Charter of the United Nations.
But to achieve these ends the attribution of international personality is indispensable.
The Charter has not been content to make the Organization created by it merely a centre “for
harmonizing the actions of nations in the attainment of these common ends” (Article 1, Para.
4). It has equipped that centre with organs, and has given it special tasks. It has defined the
position of the Members in relation to the Organization by requiring them to give it every
assistance in any action undertaken by it (Article 2, Para. 5), and to accept and carry out the
decisions of the Security Council; by authorizing the General Assembly to make
recommendations to the Members by giving the organization legal capacity and privileges
and immunities in territory of each of its members; and by providing for the conclusion of
agreement between the organization and its members.
Practice- in particular the conclusion of convention to which the organization is a party- has
confirmed the character of an organization ,which occupies a position in certain respect in
detachment from its members, from its members, and which is under a duty to remind them, if
need be, of certain obligations. It must be added that the organization is a political body,
charged , with the political tasks of an important character ,and covering a wide field namely
the maintenance of international peace and security , the development of friendly relation
among nation, and the achievement of international co-operation in the solution of problem of
an economic, social , cultural or humanitarian character (Article 1); and in dealing with its
members of it employs political means. The “convention on the privileges and immunities of
the U.N” of 1946 creates right and duties between each of the signatories and the organization
(see in particular, section 35). It is difficult to see how such a convention could operate except
upon the international plane and as between parties possessing international personality.
In the opinion of the court , the organization was intended to exercise and enjoy ,and is in fact
exercise and enjoying function and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane it is at present the supreme type of international organizations, and it could
not carry out the intentions of its founders if it was devoid of international personality. It must
be acknowledged that its members, by entrusting certain functions to it, with the attendant
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duties and responsibilities, have clothed it with the competence required to enable those
function to be effectively discharged.
Accordingly, the court has come to conclusion that the organization is an international person.
That is not same thing as saying that it is a state, which it certainly is not, or that its legal
personality and rights and duties are the same as those of a state. Still less is it the same thing
as saying that it is a super state, whatever that expression may mean it does not imply that all
its rights and duties must be upon the international plane, any more than all the rights and
duties of a state must be upon that plane. What it does mean is that it is a subject of
international law and capable of possessing international rights and duties, and that it has
capacity to maintain its rights by bringing international claims.
The next question is whether the sum of the international rights of the organizations
comprises the right to bring the kind of international claim described in the request for this
opinion that is a claim against a state to obtain reparation in respect of the damage caused by
the injury of an agent of the Organization in the course of the performance of his duties.
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. The functions of the Organization are of such a character that they
could not be effectively discharged if they involved the concurrent action, on the international
plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have
endowed the Organization with capacity to bring international claims when necessitated by
the discharge of its functions.
It cannot be doubted that the Organization has the capacity to bring an international claim
against one of its Members which has caused injury to it by a breach of its international
obligations towards it. The damage specified in Question 1 (a) means exclusively damage
caused to the interests of the Organization itself, to its administrative machine, to its property
and assets, and to the interests of which it is the guardian. It is clear that the Organization has
the capacity to bring a claim for this damage. As the claim is based on the breach of an
international obligation on the part of the Member held responsible by the Organization, the
Member cannot contend that this obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of an international claim. When the
Organization has sustained damage resulting from a breach by a Member of its international
obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to
bring an international claim. It cannot be supposed that in such an event all the Members of
the Organization, save the defendant State, must combine to bring a claim against the
defendant for the damage suffered by the Organization.
Question 1 (b) is as follows :
“has the United Nations, as an Organization, the capacity to bring an international claim..in
respect of the damage caused..(b) to the victim or to persons entitled through him ?”
In dealing with the question of law which arises out of Question 1 (b), it is unnecessary to
repeat the considerations which led to an affirmative answer being given to Question 1 (a). It
can now be assumed that the Organization has the capacity to bring a claim on the
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international plane, to negotiate, to conclude a special agreement and to prosecute a claim
before an international tribunal. The only legal question which remains to be considered is
whether, in the course of bringing an international claim of this kind, the Organization can
recover “the reparation due in respect of the damage caused….to the victim….”. The traditional
rule that diplomatic protection is exercised by the national State does not involve the giving of
a negative answer to Question 1 (b).
In the first place, this rule applies to claims brought by a State. But here we have the different
and new case of a claim that would be brought by the Organization.
In the second place, even in inter-State relations, there are important exceptions to the rule,
for there are cases in which protection may be exercised by a State on behalf of persons not
having its nationality.
In the third place, the rule rests on two bases. The first is that the defendant State has broken
an obligation towards the national State in respect of its nationals. The second is that only the
party to whom an international obligation is due can bring a claim in respect of its breach.
This is precisely what happens when the Organization, in bringing a claim for damage
suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the
rule of the nationality of claims affords no reason against recognizing that the Organization
has the right to bring a claim for the damage referred to in Question 1 (b). On the contrary, the
principle underlying this rule leads to the recognition of this capacity as belonging to the
Organization, when the Organization invokes, as the ground of its claim, a breach of an
obligation towards itself.
Having regard to its purposes and functions already referred to, the Organization may find it
necessary, and has in fact found it necessary, to entrust its agents with important missions to
be performed in disturbed parts of the world. Many missions, from their very nature, involve
the agents in unusual dangers to which ordinary persons are not exposed. For the same reason,
the injuries suffered by its agents in these circumstances will sometimes have occurred in
such a manner that their national State would not be justified in bringing a claim for
reparation on the ground of diplomatic protection, or, at any rate, would not feel disposed to
do so. Both to ensure the efficient and independent performance of these missions and to
afford effective support to its agents, the Organization must provide them with adequate
protection.
In order that the agent may perform his duties satisfactorily, he must feel that this protection
is assured to him by the Organization, and that he may count on it. To ensure the
independence of the agent, and, consequently, the independent action of the Organization
itself, it is essential that in performing his duties he need not have to rely on any other
protection than that of the Organization (save of course for the more direct and immediate
protection due from the State in whose territory he may be).
In particular, he should not have to rely on the protection of his own State. If he had to rely on
that State, his independence might well be compromised, contrary to the principle applied by
Article 100 of the Charter. And lastly, it is essential that whether the agent belongs to a
powerful or to a weak State; to one more affected or less affected, by the complications of
international life; to one in sympathy or not in sympathy with the mission of the agent-he
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should know that in the performance of his duties he is under the protection of the
Organization. This assurance is even more necessary when the agent is stateless.
The obligations entered into by States to enable the agents of the Organization to perform
their duties are undertaken not in the interest of the agents, but in that of the Organization.
When it claims redress for a breach of these obligations, the Organization is invoking its own
right, the right that the obligations due to it should be respected. On this ground, it asks for
reparation of the injury suffered, for “it is a principle of international law that the breach of an
engagement involves an obligation to make reparation in an adequate form”; as was stated by
the Permanent Court in its Judgment No. 8 of July 26th, 1927 (Series A., No. 9,p. 21). In
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.
Having regard to the foregoing considerations, and to the undeniable right of the Organization
to demand that its Members shall fulfill the obligations entered into by them in the interest of
the good working of the Organization, the Court is of the opinion that, in the case of a breach
of these obligations, the Organization has the capacity to claim adequate reparation, and that
in assessing this reparation it is authorized to include the damage suffered by the victim or by
persons entitled through him.
The question remains whether the Organization has “the capacity 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” when the defendant State is not a member of the
Organization.
In considering this aspect of Question 1 (a) and (b), it is necessary to keep in mind the reasons
which have led the Court to give an affirmative answer to it when the defendant State is a
Member of the Organization. It has now been established that the Organization has capacity
to bring claims on the international plan and that it possesses a right of functional protection
in respect of its agents. Here again the Court is authorized to assume that the damage suffered
involves the responsibility of a State, and it is not called upon to express an opinion upon the
various ways in which that responsibility might be engaged. Accordingly the question is
whether the Organization has capacity to bring a claim against the defendant State to recover
reparation in respect of that damage or whether, on the contrary, the defendant State, not
being a member, is justified in raising the objection that the Organization lacks the capacity to
bring an international claim.
On this point, the Court’s opinion is that fifty 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.
Accordingly, the Court arrives at the conclusion that an affirmative answer should be given to
Question 1 (a) and (b) whether or not the defendant State is a Member of the United Nations.
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Question II is as follows:
“In the event of an affirmative reply on point 1 (b), how is action by the United Nations to be
reconciled with such rights as may be possessed by the State of which the victim is a
national?”
The affirmative reply given by the Court on point 1 (b) obliges it now to examine Question II.
When the victim has a nationality, cases can clearly occur in which the injury suffered by him
may engage the interest both of his national State and of the Organization.
In such an event, competition between the State’s right of diplomatic protection and the
Organization’s right of functional protection might arise, and this is the only case with which
the Court is invited to deal. In such a case, there is no rule of law which assigns priority to the
one or to the other, or which compels either the State or the Organization to refrain from
bringing an international claim. The question of reconciling action by the Organization with
the rights of a national State may arise in another way; that is to say, when the agent bears the
nationality of the defendant State.
The ordinary practice whereby a State does not exercise protection on behalf of one of its
nationals against a State which regards him as its own national, does not constitute a
precedent which is relevant here. The action of the Organization is in fact based not upon the
nationality of the victim but upon his status as agent of the Organization. Therefore it does not
matter whether or not the State to which the claim is addressed regards him as its own
national, because the question of nationality is not pertinent to the admissibility of the claim.
In law, therefore, it does not seem that the fact of the possession of the nationality of the
defendant State by the agent constitutes any obstacle to a claim brought by the Organization
for a breach of obligations towards it occurring in relation to the performance of his mission
by that agent
