11 April 1949

 

General List No. 4

 
     

international Court of Justice

     
     
     

Reparation of Injuries Suffered in the Service of the United Nations

 

 

 

     
     
 

Advisory Opinion

 
     
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BEFORE:

President: Basdevant;
Vice-President: Guerrero;
Judges: Alvarez, Fabela, Hackworth, Winiarsky, Zoricic, De Wisscher, Sir Arnold McNair, Klaestad, Badavi Pasha, Krylov, Read, Hsu Mo, Azevedo
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1949.04.11_reparation_for_injuries.htm
   
Citation: Reparation of Injuries Suffered in Service of the U.N., Advisory Opinion, 1949 I.C.J. 174 (Apr. 11)
 
     
 
 
     
 

[p174]
The Court,

composed as above,

gives the following advisory opinion :

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, (h) to the victim or to persons entitled through him ?

II. 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 ?'

Instructs the Secretary-General, after the Court has given its opinion, to prepare proposals in the light of that opinion, and to submit them to the General Assembly at its nest regular session."

In a letter of December 4th, 1948, filed in the Registry on December 7th, the Secretary-General of the United Nations forwarded to the Court a certified true copy of the Resolution of the General Assembly. On December 10th, in accordance with paragraph I of Article 66 of the Statute, the Registrar gave notice of the Request to all States entitled to appear before the Court. On December 11th, by means of a special and direct communication as provided in paragraph 2 of Article 66, he informed these States that, in an Order made on the same date, the Court had [p176] stated that it was prepared to receive written statements on the questions before February 14th, 1949, and to hear oral statements on March 7th, 1949.

Written statements were received from the following States : India, China, United States of America, United Kingdom of Great Britain and Northern Ireland, and France. These statements were communicated to all States entitled to appear before the Court and to the Secretary-General of the United Nations. In the meantime, the Secretary-General of the United Nations, having regard to Article 65 of the Statute (paragraph 2 of which provides that every- question submitted for an opinion shall be accompanied by all documents likely to throw light upon it), had sent to the Registrar the documents which are enumerated in the list annexed to this Opinion.

Furthermore, the Secretary-General of the United Nations and the Governments of the French Republic, of the United Kingdom and of the Kingdom of Belgium informed the Court that they had designated representatives to present oral statements.

In the course of public sittings held on March 7th, 8th and 9th, 1949, the Court heard the oral statements presented

on behalf of the Secretary-General of the United Nations by Mr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department as his Representative, and by Mr. A. H. Feller, Principal Director of that Department, as Counsel ;

on behalf of the Government of the Kingdom of Belgium, by M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary of His Majesty the King of the Belgians, Head of the Division for Peace Conferences and International Organization at the Ministry for Foreign Affairs, Member of the Permanent Court of Arbitration ;

on behalf of the Government of the French Republic, by M. Charles Chaumont, Professor of Public International Law at the Faculty of Law, Nancy ; Legal Adviser to the Ministry for Foreign Affairs ;

on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland by Mr. G. G. Fitzmaurice, Second Legal Adviser to the Foreign Office.

The first question asked of the Court is as follows :

"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 [p177] the responsible de jure or de facfo 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 ?"

It will be useful to make the following preliminary observations :

(a) The Organization of the United Nations will be referred to usually, but not invariably, as "the Organization".

(b) Questions 1 (a) and 1 (b) refer to "an international claim against the responsible de iure or de facto government". The Court understands that these questions are directed to claims against a State, and will, therefore, in this opinion, use the expression "State" or "defendant State".

(c) The Court understands the word "agent" in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts.

(d) As this question assumes an injury suffered in such circumstances as to involve a State's responsibility, it must be supposed, for the purpose of this Opinion, that the damage results from a failure by the State to perform obligations of which the purpose is to protect the agents of the Organization in the performance of their duties.

(e) The position of a defendant State which is not a member of the Organization is dealt with later, and for the present the Court will assume that the defendant State is a Member of the Organization.

***
The questions asked of the Court relate to the "capacity to bring an international claim" ; accordingly, we must begin by defining what is meant by that capacity, and consider the characteristics of the Organization, so as to determine whether, in general, these characteristics do, or do not, include for the Organization a right to present an international claim.

Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the preservation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute.

This capacity certainly belongs to the State ; a State can bring an international claim against another State. Such a claim takes the form of a claim between two political entitit.5, equal in law, similar [p178] 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 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. 3). 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 ;[p179] by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organization and its Members. Practice—in particular the conclusion of conventions to which the Organization is a party—has confirmed this character of the Organization, which occupies a position in certain respects in detachment 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 political tasks of an important character, and covering a wide field namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article 1) ; and in dealing with its Members it employs political means. The "Convention on the Privileges and Immunities of the United Nations" of 1946 creates rights 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 exercising and enjoying, functions 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 organization, 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 duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.

Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the 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 even 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 Organization 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 [p180] 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.

What is the position as regards the claims mentioned in the request for an opinion ? Question 1 is divided into two points. which must be considered in turn.

Question 1 (a) is as follows :

"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.... ?"

The question is concerned solely with the reparation of damage caused to the Organization when one of its agents suffers injury at the same time. 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 Organ-ization, 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 [p181] State, must combine to bring a claim against the defendant for the damage suffered by the Organization.

The Court is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. It may, however, be said that the measure of the reparation should depend upon the amount of the damage which the Organization has 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. Amongst other things, this damage would include the reimbursement of any reasonable compensation which the Organization had to pay to its agent or to persons entitled through him. Again, the death or disablement of one of its agents engaged upon a distant mission might involve very considerable expenditure in replacing him. These are mere illustrations, and the Court cannot pretend to forecast all the kinds of damage which the Organization itself might sustain.

***

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 I (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 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 [p182] 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.

Nor does the analogy of the traditional rule of diplomatic protection of nationals abroad justify in itself an affirmative reply. It is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the Organization on the one hand, and the Secretary-General and the staff on the other, to the bond of nationality existing between a State and its nationals.

The Court is here faced with a new situation. The questions to which it gives rise can only be solved by realizing that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law.

The question lies within the limits already established; that is to Say it presupposes that the injury for which the reparation is demanded arises from a breach of an obligation designed to help an agent of the Organization in the performance of his duties. It is not a case in which the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens; claims made under this head would be within the competence of the national State and not, as a general rule, within that of the Organization.

The Charter does not expressly confer upon the Organization the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. The Court must therefore begin by enquiring whether the provisions of the Charter concerning the functions of the Organization, and the part played by its agents in the performance of those functions, imply for the Organization power to afford its agents the limited protection that would consist in the bringing of a claim on their behalf for reparation for damage suffered in such circumstances. 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 necessary implication. as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, [p183] 1926 (Series B., No. 13, p. 18), and must be applied to the United Nations.

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.

This need of protection for the agents of the Organization, as a condition of the performance of its functions, has already been realized, and the Preamble to the Resolution of December 3rd, 1948 (supra, p. 175), shows that this was the unanimous view of the General Assembly.

For this purpose, the Members of the Organization have entered into certain undertakings, some of which are in the Charter and others in complementary agreements. The content of these undertakings need not be described here ; but the Court must stress the importance of the duty to render to the Organization "every assistance" which is accepted by the Members in Article 2, paragraph 5, of the Charter. It must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents— require that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent.

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, lie 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—[p184] 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 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.

Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter.

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. g, 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 fulfil 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 [p185] plane, 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 ail affirmative answer should be given to Question 1 (a) and (b) whether or not the defendant State is a Member of the United Nations.

***

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.
[p186]

The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the Organization and its Members it draws attention to their duty to render "every assistance" provided by Article 2, paragraph 5, of the Charter.

Although the bases of the two claims are different, that does not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national States are interested. and they know how to protect the defendant State in such a case.

The risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain States whose nationals have been injured in the performance of missions undertaken for the Organization have shown a reasonable and CO-operative disposition to find a practical solution.

***

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. [p187]

For these reasons,

The Court is of opinion
On Question I (a) :

(i) unanimously,

That, 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 Member State, the United Nations as an 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 Cause to the United Nations.

(ii) unanimously,

That, 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 which is not a member, the United Nations as an 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 to the United Nations.

On Question I (b) :

(i) by eleven votes against four,

That, in the event of an agent of the United Nations iii the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization ha.; 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 to the victim or to persons entitled through him.

(ii) by eleven votes against four,

That, 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 which is not a member, the United Nations as an 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 to the victim or to persons entitled through him. [p188]

On Question II:

By ten votes against five,

When the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon n breach of obligations due to itself ; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess, and thus bring about a reconciliation between their claims ; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States, either generally or in each case.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this eleventh day of April, one thousand nine hundred and forty-nine, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Basdevant,
President.

(Signed) E. Hambro,
Registrar.


[p189]
Judge Winiarski states with regret that he is unable to concur in the reply given by the Court to Question 1 (b). In general, he shares the views expressed in Judge Hackworth's dissenting opinion.

Judges Alvarez and Azevedo, whilst concurring in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their individual opinion.

Judges Hackworth, Badawi Pasha and Krylov, declaring that they are unable to concur in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinion.

(Initialled) J. B.

(Initialled) E. H.

[p190]

INDIVIDUAL OPINION BY JUDGE ALVAREZ.

[Translation.]
1.

I am in agreement with the answer given by the Court to the Request for an Advisory Opinion which was addressed to it. I find in the reasons given by the Court at any rate a partial appli-cation of the method and .principles which, in my view, are most suitable having regard to the present state of international life and to the exercise of the power, which I recognize the Court as possessing, to develop international law and to contribute to its creation in face of new situations. The Court has rightly considered that the situation which was submitted to it, with a request that it should declare the law concerning it, was a new situation. While recognizing that the United Nations has the capacity to bring an international claim in the case in point and for the purposes set forth in the Request for the Opinion, the Court has proclaimed a new precept of international law. To Say that, in so doing, it has developed that law, or that it has created a new precept, is a mere matter of words, for in many cases it is quite impossible to Say where the development of law ends and where its creation begins.

In thus declaring its opinion on this new subject, the Court has taken into account the nature and aims of the United Nations, and it has availed itself of the right which it now possesses under Resolution 171 of the General Assembly of the United Nations in 1947 to develop international law.

The decision which the Court has arrived at appears to me to be in accordance with the general principles of the new international law, the legal conscience of the peoples and the exigencies of contemporary international life—three essential factors which have to be taken into account in the development of international law.

I therefore consider that the answer to the first question stated in the Request for an Opinion should be that the United Nations possesses an international juristic personality and is entitled to bring international claims against States which have caused the damage in question.

The United Nations could not attain the objects which it has before it if it did not possess that right. It would be strange indeed if an institution which has such extensive powers for the maintenance of peace did not possess the capacity which has been referred to.[p190]

II.

My answers to the questions put to the Court in the Request for an Advisory Opinion are as follows :

"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 ?"
I consider, as I have just said, that the United Nations has the capacity t O bring such a claim with a view to obtaining reparation for damage caused either to itself or to its agents or persons entitled through them.

"II. 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 ?"

In my opinion, having regard to the above-mentioned capacity, which the United Nations must be recognized as possessing, it is not necessary that the latter should act in agreement with the State of which the victim is a national. It might happen, for instance, that the victim was a stateless person, or that the State in question might neglect to submit a claim, or might be unwilling to do so for political or other reasons; or again, the victim might have the nationality of the respondent State. In any case the United Nations Organization is entitled, by itself, to claim reparation for the damage caused to its agents or to those entitled through them; but if it neglects to bring a claim, the State of which the victim is a national may do so.

The United Nations must be able to bring the claim either against a State Member of the United Nations or against a non-member State, irrespective of whether the State did or did not agree to the despatch of the agent to its territory. The nature of the Organization and the general interest make this necessary so that there should not be an inferiority—so to speak—of the former kind of States in relation to the latter. (See No. 6 of Art. 2 of the Charter.)

The fact of recognizing the United Nations as possessing the right to bring international claims constitutes a derogation from the precepts of the international law now in force, for that law only attributes this right to the States ; but the latter will consent to this right being also attributed to the highest international institution. [p192]

Finally, it should be observed that the United Nations is an institution possessing a political character, and that this character may influence its attitude. It is therefore desirable that an organ-ism and a procedure should be established for dealing with this matter.

(Signed) Alejandro Alvarez.


[p193]

INDIVIDUAL OPINION BY JUDGE AZEVEDO.

[Translation.]

I agree with the findings and, in general, with the reasons on which they are based, and merely wish to add a few remarks which are, in my opinion, a necessary development of the reply to the second question.

I think another criterion must be supplied for the settlement of differences that may arise : the drawing of a distinction between the main claim and a subsidiary claim, which must certainly not be neglected. The deliberate use of the word –“agent” in the Request for an 0pinion.gives rise to this suggestion.

It is to be observed that the working of the United Nations presupposes the action of two forces: one which directs the thought and the particular purposes of Members towards the deliberative organs, which thereupon adopt the solutions required by the general interests of peace and justice ; and one devoted to the carrying out of the decisions taken.

These different duties are carried out by distinct physical persons : the representatives of States Members and the officials of the Organization, although it is often necessary to use the same individuals in different circumstances, as has already been stated by Professor Bastid, née Suzanne Basdevant (Les Fonctionnaires internationaux, Paris, 1938, p. 8). The example of the new Organization of American Nations would be the most striking, with its distinction between the deliberative organs set up at Bogota in 1948, and the former Pan-American Union retained permanently as General Secretariat.

It may also be noted that officials are included in the notion of "agent", but representatives of Members are not, although the Organization may be interested in supporting a proposed claim for injuries suffered by such representatives in the performance of their duties, e.g., in places where organs to which they belong are sitting.

On the other hand, to carry out the decisions of its organs, the Organization cannot always appoint officials, and must sometimes choose persons from outside its normal staff.

The different kinds of duties that are performed in the interest of the Organization are not fully set out in Article IOO of the .San Francisco Charter, nor yet in Article 105, which mentions both officials and representatives of Members. This insufficiency was expressly recognized in the Convention of February 13th, 1946, on Privileges and Immunities, and in certain arrangements [p194] and agreements concluded with States or Specialized Agencies.

These acts show that there exists a third class—that of experts, other than officials, who perform duties on behalf of the Organization. On this subject, it is interesting to note that the Statute of the International Court of Justice added to the provisions relating to the Permanent Court a concession of privileges and immunities to agents, counsel and advocates of the parties (Article 42 (3)), who are assimilated to representatives of Members of the Organization ; whilst witnesses and experts were, by the Court itself, with the approval of the General Assembly, included in the third class mentioned above. (I.C.J., Acts and Documents concerning the Organization of the Court, No. 1, second edition, 1947, PP. 85, 86 and 89.)

This third class gives rise to difficulties and uncertainty, as happens in ail classifications ; but it may be included under .the general heading of "agents" more easily than under representatives of the Members. But a further distinction must be made : to perform duties exceptionally entrusted to those classified as experts in the conventions and arrangements,. persons must be chosen who belong to delegations of the Members, or other suitable persons appointed either directly by the Organization, or by the Members from amongst their nationals.

Then another distinction must be made, according to the manner in which the choice is effected, whether on purely personal grounds, or on the contrary by the nationality of the experts, account being taken of political, geographical, etc., considerations, but in any case, having regard to the technical knowledge of candidates.

For instance, in the appointment of Members of the International Court of Justice or of the new International Law Commission, much more attention is paid to personal qualities than to nationality, the influence of which is rather negative, when an exaggerated predominance of one State is to be avoided. Thus, it is not the nature of the duties that is important, but the method of selection, which may consequently vary in the same case.

No doubt, a person who, owing to his own merits, is entrusted with a mission, assumes in principle a duty of greater devotion towards the Organization than does one who is appointed by his country, or even by third parties, to a task entrusted to him, having regard to his nationality. While admitting that, in both cases, the duties will be performed with independence and in a spirit of devoted co-operation, it must be observed that the ties of nationality [p195] will, in the second case, be harder to throw off and to replace by attachment to the performance of international duties.

In conclusion :

In the case of officials or experts appointed directly by the Organization, regardless of nationality, the Organization will have a priority and may make a claim without having to put forward a denial of justice, or even to show that domestic remedies have been exhausted.

On the other hand, in the case of representatives of. States Members, or even of experts appointed having regard to their countries —especially if the appointment is made by these countries—the main claim will conform to the principle of nationality.

{Signed) Philadelpho Azevedo.

[p196]

DISSENTING OPINION BY JUDGE HACKWORTH.

I concur, but for different reasons, in the conclusion of the Court that the United Nations Organization has capacity to bring an international claim against the responsible government, with a view to obtaining reparation due in respect of damage caused by that government to the Organization. But I regret that I am unable to concur in that part of the Opinion having to do with the capacity of the Organization to sponsor an international claim in behalf of one of its agents.

The authority of the Organization to make a claim for damage caused to it by the wrongful act of a State can be very simply stated, as follows :

(1) Article 104 of the Charter gives the Organization "such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes".

(2) Paragraphs I and 2 of Article 105 specify that 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", and that officials of the Organization shall "similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization".

(3) The Convention on Privileges and Immunities, adopted by the General Assembly on February 13th, 1946, recognizes that the United Nations shall possess juridical personality, with capacity (a) to contract; (b) to acquire and dispose of immovable and movable property ; and (c) to institute legal proceedings ; also that the Organization and its officials shall enjoy certain specified privileges and immunities.

The Convention has not been approved by all the Members of the Organization, but we may assume, for present purposes, that it is fairly representative of the views of most of them.

(4) It stands to reason that, if the Organization is to make contracts, to acquire and dispose of property, to institute legal proceedings, and to claim the benefits of the privileges and immunities to which it is entitled, it must be able to carry on negotiations with governments as well as with private parties. It must therefore be able to assert claims in its own behalf. No other conclusion consistent with the specified powers and with the inherent right of self-preservation could possibly be drawn. The Organization must have and does have ample authority to [p197] take needful steps for its protection against wrongful acts for which Member States are responsible. Any damage suffered by the Organization by reason of wrongful acts committed against an agent, while in the performance of his duties, would likewise be within its competence.

This is a proper application of the doctrine of implied powers.

(5) I, therefore, find no difficulty in giving an affirmative answer to Question 1 (a) of the Assembly's request.

Such a claim by the United Nations would include any element of damage susceptible of proof under customary rules relating to damages in international claims. It would include any reasonable payments made by the Organization to the victim of the wrongful act or to those entitled through him, provided that such payments were made pursuant to contractual undertakings of the Organization, or on the basis of an established policy in such cases.

(6) Thus it would appear that under 1 (a) the Organization has ample and unquestionable authority to safeguard itself against derelictions by States, and to vindicate the dignity, honour and authority of the Organization. To this extent I am in agreement with the conclusions of the majority of the Court.

***

As to Question 1 (b), having to do with a claim for reparation due in respect of damage caused to the victim of a wrongful act or to persons entitled through him, as distinguished from a claim on behalf of the Organization itself, a different situation is presented.

The Court is asked to state its opinion as to whether the Organization has capacity to espouse such a claim. In giving our answer, we must look to the traditional international practice of nations with respect to private claims, and to the express treaty stipulations as regards the Organization.

As to international practice, we find at once that heretofore States have been regarded as competent to advance such international claims.

As to the Organization, we find nothing to suggest that it too has capacity in this field. Certainly there is no specific provision in the Charter, nor is there provision in any other agreement of which I am aware, conferring upon the Organization authority to [p198] assume the role of a State, and to represent its agents in the espousal of diplomatic claims on their behalf. I am equally convinced that there is no implied power to be drawn upon for this purpose.

It is stated in the majority opinion that the Charter docs not expressly provide that the Organization should have capacity to include, in "its claim for reparation", damage caused to the victim or to persons entitled through him, but the conclusion is reached that such power is conferred by necessary implication. This appears to be based on the assumption that, to ensure the efficient and independent performance of missions entrusted to agents of the Organization, and to afford them moral support, the exercise of this power is necessary.

The conclusion that power in the Organization to sponsor private claims is conferred by "necessary implication" is not believed to be warranted under rules laid down by tribunals for filling lacunæ in specific grants of power.

There can be no gainsaying the fact that the Organization is one of delegated and enumerated powers. It is to be presumed that such powers as the Member States desired to confer upon it are stated either in the Charter or in complementary agreements concluded by them. Powers not expressed cannot freely be implied. Implied powers flow from a grant of expressed powers, and are limited to those that are "necessary" to the exercise of powers expressly granted. No necessity for the exercise of the power here in question has been shown to exist. There is no impelling reason, if any at all, why the Organization should become the sponsor of claims on behalf of its employees, even though limited to those arising while the employee' is in line of duty. These employees are still nationals of their respective countries, and the customary methods of handling such claims are still available in full vigour. The prestige and efficiency of the Organization will be safeguarded by an exercise of its undoubted right under point 1 (a) supra. Even here it is necessary to imply power, but, as stated above, the necessity is self-evident. The exercise of an additional extraordinary power in the field of private claims has not been shown to be necessary to the efficient performance of duty by either the Organization or its agents.

But we are presented with an analogy between the relationship of a State to its nationals and the relationship of the Organization [p199] to its employees ; also an analogy between functions of a State in the protection of its nationals and functions of the Organization in the protection of its employees.

The results of this liberality of judicial construction transcend, by far, anything to be found in the Charter of the United Nations, as well as any known purpose entertained by the drafters of the Charter.

These supposed analogies, even assuming that they may have some semblance of reality, which I do not admit, cannot avail to give jurisdiction, where jurisdiction is otherwise lacking. Capacity of the Organization to act in the field here in question must rest upon a more solid foundation.

The Court advances the strange argument that if the employee had to rely on the protection of his own State, his independence might well be compromised, contrary to the intention of Article 100 of the Charter.

This would seem to be placing a rather low estimate upon the employee's sense of fidelity. But let us explore this a step further.

Article 100 provides that :

"1. In the performance of their duties, the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

2. Each Member of t-he United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence ,them in the discharge of their responsibilities."

This is a classical provision. It is found in this identical, or a slightly modified, form in each of the agreements establishing the various Specialized Agencies—some concluded before, and some subsequent to, the signing of the Charter.

For example, we find in Article 59 of the Convention on International Civil Aviation, signed in 1944, the following provision:

"The President of the Council, the Secretary-General and other personnel shall not seek or receive instructions in regard to the discharge of their responsibilities from any authority external to the Organization. Each contracting State undertakes fully to respect the international character of the responsibilities of the personnel and not to seek to influence any of its nationals in the discharge of their responsibilities." (Yearbook of the United Nations, 1946-1947, pp. 728, 736.) [p200]

Article XII of the articles of agreement of the International Monetary Fund, negotiated in 1944. provides in Section 4 (c) :

"The Managing Director and the staff of the Fund, in the discharge of their functions, shall owe their duty entirely to the Fund and to no other authority. Each member of the Fund shall respect the international character of this duty and shall refrain from all attempts to influence any of the staff in the discharge of his functions." (II, United Nations Treaty Series, 1947, PP. 40, 86.)

Article V of the contemporary agreement relating to the International Bank for Reconstruction and Development is practically identical with the provisions just quoted. (Ibid., pp. 134, 166.)

Article 9, paragraphs 4 and 5, of the Constitution of the International Labour Organization, as amended, provides :

"4. The responsibilities of the Director-General and the staff shall be exclusively international in character. In the performance of their duties, the Director-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.

5. Each Member of the Organization undertakes to respect the exclusively international character of the responsibilities of the Director-General and the staff and not to seek to influence them in the discharge of their responsibilities." (Yearbook. of the United Nations, 1946-1947, pp. 670, 672.)

To the same effect see :

Article VIII of the Food and Agriculture Organization of the United Nations (ibid., pp. 693, 695) ; Article VI of the Constitution of the United Nations Educational, Scientific and Cultural Organization (ibid., pp. 712, 715) ; Article 37 of the Constitution of the World Health Organization (ibid., pp. 793. 797) ; and Article 9 of the Constitution of the International Refugee Organization (ibid., pp. 810, 813).

Is it to be supposed that each of the Organizations has the capacity to make diplomatic claims in behalf of its agents, and that this should be done in order that their fidelity to the Organization and their independence may not be compromised ? Reasons for such a conclusion would seem to have as great force here as in the case of the United Nations. The language employed in the respective instruments bears the same meaning.

Article 100 of the Charter, which, it should be remarked, relates only to the Secretary-General and the staff, cannot be drawn upon to claim for the Organization by indirection an authority which obviously cannot be claimed under any direct authorization. [p201]

The most charitable, and indeed the most realistic construction to be given the article is that it is designed to place service with the United Nations on a high plane of loyalty and fidelity and to require Member States to respect this status and not to seek to influence the Secretary-General or members of the staff in the discharge of their duties.

This bond between the Organization and its employees, which is an entirely proper and natural one, does not have and cannot have the effect of expatriating the employee or of substituting allegiance to the Organization for allegiance to his State. Neither the State nor the employee can. be said to have contemplated such a situation. There is nothing inconsistent between continued allegiance to the national State and complete fidelity to the Organization. The State may still protect its national under international law. One can even visualize a situation where that protection might be directed against acts by the Organization itself.

The purpose of the article as stated in the Report of the Secretary of State to the President of the United States on the Results of the San Francisco Conference, June 26th, 1945, is :

" .... to make it perfectly clear that the nationals of Member States serving on the staff of the Secretariat could not, in any sense of the word, be considered as agents of their governments". (Department of State Publication 2349, Conference Series 71, pp. 150, 151.)

It has also been suggested, as an argument in support of the proposition that the United Nations Organization should be regarded as having capacity in these cases, that the State of nationality would not be in a position to base an international claim in behalf of a national on the ground that privileges or immunities to which employees are entitled under the Charter or under provisions of the Convention relating to Privileges and Immunities had been violated.

If this be a sound view, it must be because the privileges and immunities are not for the personal benefit of the individual himself. That this is true is admitted by the Court and is made clear by Article V, Section 20, and Article VI, Section 23, of the Convention. The former specifies :

"Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves." (1, United Nations Treaty Series, 1946-1947, pp. 16, 26.) [p202]

Since, according to this provision, the privileges and immunities inure to the benefit of the United Nations and not to the benefit of the individuals, any claim based upon a breach of them should be in favour of the Organization and would fall to be dealt with under 1 (a) above, and not under 1 (b).

Any claim on behalf of the individual must rest, not upon stipulations contained in the Convention, but upon general principles of' international law.

What reason, then, is there for thinking that the United Nations, rather than the national State, should interpose on behalf of the individual ? It may well be that the weight of the Organization's authority would, in some cases, be more persuasive than that of the national State, but this is not a judicial reason, nor does it supply the legal capacity to act.

Aside from remedies afforded by local law under which private claimants may be allowed access to judicial or other tribunals for the adjustment of their claims against a government, the only remedy known to international law in such cases is through the government of the State of which the claimant is a national. "A citizen of one nation, wronged by the conduct of another nation, must seek redress through his own government. His government must assume the responsibility of presenting his claim, or it need not be considered." (United States v. Diekelman, 92 US. 320 ; VI, Moore's Digest of International Law, 607.)

Such claims must be presented through the diplomatic channel (ibid.).

Diplomatic protection is in its nature an international proceeding, constituting "an appeal by nation to nation for the performance of the obligations of the one to the other, growing out of their mutual rights and duties" (Borchard, Diplomatic Protection of Citizens abroad, 351 ; VI, Moore's Digest, 257).

A claim by one State against another on account of an injury to a national of the claimant State is based on the theory that the State has been injured through injury to its national. Equally sound is the theory that for the allegiance owed by the national to his State the latter owes the national its protection. Nationality is a sine qua non to the espousal of a diplomatic claim on behalf of a private claimant. Aside from the special situation of protected persons under certain treaties and that of seamen and aliens serving in the armed forces, all of whom are assimilated to the status of nationals, it is well settled that the right to protect is confined [p203]to nationals of the protecting State. If the private claimant is not a national of the State whose assistance is sought, the government of that State cannot properly sponsor the claim, nor is the respondent government under any legal duty to entertain it.

International law on this subject is well settled, and any attempt to engraft upon it, save by international compact, a theory, based upon supposed analogy, that organizations, not States and hence having no nationals, may act as if they were States and had nationals, is, in my opinion, unwarranted. The Permanent Court of International Justice stated well the true situation when it said in the Panevezys-Saldutiskis Railway Case, February 28th, 1939 :

"In the opinion of the Court, the rule of international law on which the first Lithuanian objection is based is that in taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect, for the rules of international law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse." (P.C.I.J., Series A./B., No. 76, p. 16.)

See also to the same effect the Mavrommatis Palestine Concessions Case (P.C.I.J., Series A., No. 2, 1924, p. 12) ; and the case concerning the Payment of various Serbian Loans issued in France (P.C.I.J., Series A., Nos. 20/21, 1929, p. 17).

It is generally admitted that the State of the employee's nationality has a right to sponsor a claim, such as is here in question, and the General Assembly obviously envisaged the possibility of complications in this respect, as is shown by its second question, wherein it inquires how, in the event of an affirmative reply on point 1 (b), action by the United Nations is "to be reconciled with [p204] such rights as may be possessed by the State of which the victim is a national".
The answer which I have suggested for point 1 (a) would probably give the Organization all that it needs from a practical point of view.

If it desires to go further and to espouse claims on behalf of employees, the conventional method is open. If the States should agree to allow the Organization to espouse claims on behalf of their nationals who are in the service of the Organization, no one could question its authority to do so. The respondent State would be relieved of the possibility of demands from two sources, the employee or his dependants would know to whom to look for assistance, and the whole procedure would be free from uncertainty and irregularity.

(Signed) Green H. Hackworth.

[p205]
DISSENTING OPINION BY JUDGE BADAWI PASHA.

[Translation.]

After defining or making clear the meaning of the terms "agent" and "international claim", the Court goes on to show that the United Nations has international personality. Then, before dealing with the concrete cases envisaged in the Request for an Opinion, it reaches the conclusion that, on this ground, and apart from the object of the claim, the Organization has the capacity to bring international claims in so far as may be required in the performance' of its duties.

Evidently, this conclusion cannot be disputed. Long before the Organization, international persons had existed ; and again quite recently a number of institutions have been set up, both before and after the Organization itself, which have this personality. The Charter of the International Trade Organization (the last of these institutions) expressly provides that it shall have international legal personality. It goes without saying that the United Nations, as the main Organization and the most important of all, must have international legal personality, just as much as one of its branches.

But, as the Court itself observes, a juridical system is not bound to admit that all persons to whom it accords rights are identical in their nature or as regards the extent of their rights.

In stating that the Organization has international personality, we shall therefore merely have defined its capacity as a subject of law in regard to an international claim ; but we shall not yet have shown that it has a particular right.

There is in fact no common law for international persons. There are, on the one hand, States that have common characteristics, rights and obligations, recognized in international law ; and, on the other hand, a number of persons of different nature and different rank : unions, commissions, international groups, with various names; Specialized Agencies, such as I.L.O., W.H.O., F.A.O., I.R.O., I.T.O., the Monetary Fund, the International Bank, U.N.E.S.C.O. and lastly U.N. In spite of a certain resemblance one to another, each of these persons depends, as regards its objects, principles, organization, competence, rights and obligations, on the terms of its constitution, and is deemed to exist only for the benefit of States which have signed and ratified, or which have acceded to that instrument.[p206]

The Request for an Opinion relates to the Organization's right to claim reparation for damage caused (a) to itself, and (b) to the victim, when he is an agent of the United Nations, or to persons entitled through him.

International law recognizes that a State has the right to claim reparation for damage caused to itself and to the victim or to persons entitled through him, when he is a national of that State, and has not been able to obtain satisfaction through ordinary channels (right known as diplomatic protection of nationals abroad).

The first right belongs to the State as an attribute of its existence as a State, and as a consequence of its international personality ; the second is the fruit of a process-of laborious crystallization that has been completed since the end of the nineteenth century. In spite if certain abuses that have accompanied its exercise, this right is universally recognized. But its conception and its justification have constantly been discussed. In fact, the right to claim reparation for injuries suffered by the victim or persons entitled through him arises in the person of the victim, or in that of the persons entitled, and as a general rule belongs only to other persons in so far as they represent the victim or the persons entitled through him.

International law recognizes that the State has the right to claim reparation in respect of this damage, not because it considers that the State is a legal representative of the victim, but because it holds that the State, in asserting its own right, the right which it has to ensure, in the person of its subjects, respect for the rules of international law (Judgment No. 2 of the P.C.I.J., Series A., 50. 2, p. 12). In the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection (Judgment of the P.C.I.J., February 28th, ,1939, Series A./B., Fasc. 76, p. 16).[FN1] [p207]

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FN1 The bond of nationality is an essential condition of the exercise by a State of the right to bring an international claim on behalf of the victim ; but the Court's Opinion states (p. 181) that there are important exceptions to this rule, and that there exist classes of cases in which protection may be exercised by a State on behalf of persons not having its nationality. Now the Permanent Court of International Justice, in reply to a similar objection, stated, in the above-mentioned Judgment of February 28th, 1939, that :
"The Estonian agent both in the written pleadings and in the oral arguments has endeavoured to discredit this rule of international law, if not to deny its existence. He cited a certain number of precedents, but when these precedents are examined, it will be seen that they are cases where the governments concerned had agreed to waive the strict application of the rule, cases where the two governments had agreed to establish an international tribunal with jurisdiction to adjudicate on claims even if this condition as to nationality were not fulfilled."
On the other hand, the classes of cases envisaged in the Opinion seem to relate to the protection of the flag and of armed forces, in which case protection extends to everyone in the ship or in the forces, independent of nationality. But it must be pointed out that as the condition of nationality is satisfied as regards the flag or the forces, its absence, in the case of one or more units or persons of a national entity, may be held to be covered by a principle of the indivisibility of the flag or of the armed forces.
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It is thus by juridically identifying the national and his national State, that the latter is deemed to have the right to bring an international claim for reparation due to the victim or to persons entitled through him.

According to this theory, the State does not act as representative of its national, although it claims reparation for the damage suffered by him. But the reparation that it claims for this injury possesses the international character of reparation due from one State to another. In Judgment No. 13 of the P.C.I.J. (Series A., No. 17, pp 27-28), we find a remarkable statement of this juridical theory in the following terms :

"It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. This is even the most usual form of reparation ; it is the form selected by Germany in this case and the admissibility of it has not been disputed. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international lam in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State ; it can only afford a convenient scale for the calculation of the reparation due to the State."

The question, therefore, is whether, as regards injuries suffered by one of its agents in the performance of his duties, the Organization has a right to make an international claim at any rate of the same scope, if not of the same nature, as a claim made by a State.

In the preliminary part of the Opinion, devoted to a consideration of the question, the Court stated that:

"(d) As this question relates to a case of injury suffered in such circumstances as to involve a State's responsibility, it must be supposed, for the purpose of the examination, that the damage results from a failure by the State to perform obligations of which the purpose is to protect the agents of the United Nations Organization in the performance of their duty." [p208]

The Court therefore admits as a postulate the existence of an obligation in favour of the United Nations and incumbent on any Member State whose responsibility might be involved. But there is nothing in the terms of the question to authorize the admission of such a postulate; the clause "in .circumstances involving the responsibility of a State" seems to refer only to the traditional conditions of diplomatic protection, namely the exhaustion of local remedies and the existence of a denial of justice (see debate in Committee VI of the United Nations General Assembly).

Has the Court in view the obligation of Members, under Article 2, paragraph 5, of the Charter, to give the United Nations every assistance in any action it takes in accordance with the Charter ; or has it in view the obligations derived from Article 105 of the Charter, and from the Convention on Privileges and Immunities ? A passage from the Opinion (p. 183) seems to refer to both of these obligations.

But, all the same, the Court has not endeavoured to discover the source of this obligation, although it is evident that the disregard by a State of an obligation, and the consequences that may follow, are closely dependent on the actual terms of the obligation.

But even whether the source of the supposed obligation be one or other of the above-mentioned provisions, it would still have to be shown that a breach of the obligation would give rise to a right of the United Nations to make an international claim for reparation of the damage caused by (b) of the first question ; the right to claim reparation of the damage under (a) gives rise to no difficulty. If the existence of an obligation is assumed, this right would only be the direct result of this obligation.

***

Both the written statements of the governments (except that of the United States Government) and the statements made in Court recognized that the United Nations had the right to bring an international claim in respect of the damage referred to under (b), and they endeavoured to give reasons for this. Each representative had his own argument.

They founded this right on one or more of the following grounds:

(1) The analogy between the position of the United Nations and that of States, because the general principles underlying the position of States would be equally applicable to the United Nations.
(2) Creation of a new situation, owing to the development of international organization; in this situation, the international [p209] community requires that a step forward should be taken towards the protection of its agents.
(3) The rule that the reparation of damage suffered by the victim would habitually and principally be the measure of reparation due to the State, and consequently to the United Nations.
(4) Weakening of the bond of national allegiance implied in Article 100 of the Charter on the one hand, and by considerations of expediency on the other hand, there being no national protection for stateless persons, refugees and displaced persons, or such protection being illusory if, for any reason, the national State does not endeavour to exercise it.
(5) An international obligation to ensure protection of a foreign public service ; this is confirmed by several precedents derived from the application of Articles 88 and 362 of the Treaty of Versailles, from the diplomatic history of the concert of European Powers in the Cretan question, and from the Corfu affair of 1923 (Tellini Affair).
(6) Article 100 of the Charter.

***

Apart from the actual value of each of these arguments, their diversity gives rise to contradictions and inconsistency as regards the justification of the United Nations' right. Those who uphold certain arguments consider others inadequate or insufficient.

The Court was right to set aside the argument drawn from Article IOO (p. 182). Such an argument only justified the making of an international claim for the Secretary-General and the staff of the Secretariat, so that other grounds had to be found for the protection of agents other than the staff of the Secretariat.

It must be added that this Article, and especially paragraph 1, is only a rule of conduct or discipline for the Secretary-General and the staff of the Secretariat. It is a rule which would have been more in place in the Staff Regulations of the Secretariat, if it had not been desired to link it up to the second paragraph, which imposes an obligation on States, and if it had not also been required to justify the privileges and immunities provided in their favour by Article 105.

An official of the Organization who is a national of a particular State may, in one may or another, have to take part in discussions or decisions of the Organization, where actions and interests of the particular State are involved. This official might consequently find that his national feelings and his duties were in conflict in a particular case. It was therefore necessary to reassure States Members of the Secretariat's impartiality, and to define what would be the situation of the staff in such cases of conflict, and determine their duties. For this reason, in the first paragraph [p210] of this Article, the staff are enjoined not to seek or receive instructions from any government or from any other authority external to the Organization. The following provision is a repetition of the same rule in a more extended form ; it also relates to the dignity of an international official position. The reference to the exclusive responsibility towards the Organization is a consequence and a necessary confirmation of the preceding rules.

The second paragraph of this Article only repeats the ideas underlying the first paragraph, as looked at from the viewpoint of the State of which the official is a national.

In these specific conditions of the nature of the Organization, its duties and powers, the provision implies nothing more than the relations between employer and employed in an international body. So much so that a similar provision is found in :

(1) the Agreement relating to the International Monetary Fund, September 27th, 1945 (Article 12, Section 4 (c)) ;
(2) the Agreement relating to the International Bank for Reconstruction and Development of the same date (Article 5, Section 5 (c)) ;
(3) the U.N.E.S.C.O. Charter, November 16th, 1945 (Article VI, Section 5) ;
(4) the constitution of the International Labour Organization (Article 9, Sections 4 and 5) ;
(5) the constitution of the World Health Organization (Article 37);
(6) the constitution of the Food and Agriculture Organization of the United Nations (Article 8, Section 2) ;
(7) the constitution of the International Refugee Organization (Article 9, Section 3) ;
(8) the Convention on International Civil Aviation (Article 59) ;
(9) the constitution of the International Trade Organization (Article 88, Sections 1, 2, 3).

In these circumstances, would it be conceivable that the constitutions of all these Specialized Agencies can have created so many allegiances involving a right of protection for their staff similar to that accorded by States to their nationals ?

***

What is to be said of the other arguments ?

The Court rejects in general any argument by analogy from the traditional rule of international law as to the diplomatic protection of nationals abroad (p. 182). In this way, it rejects the alleged allegiance resulting from Article 100, which would take the place of nationality for the purpose of the exercise of the right above [p211] mentioned. But surely the following reasoning of the Court is only an argument by analogy, namely :

1° that if one goes back to the principle contained in the rule of the nationality of the claim, one observes that, for an international claim on behalf of an individual to be made by a State, a breach by the State claimed to be responsible of an obligation incurred towards the claimant State must be alleged, and

2° that this principle leads to recognizing that the Organization has the capacity to bring an international claim for injuries suffered by its agent, if the Organization gives as a ground for its claim a breach of an obligation incurred towards it (pp. 181 and 182).

It is true that when the Court relies on the principle mentioned above and implied in the rule of the nationality of the claim, and when it secondly relies on the existence of important exceptions to that rule, and when it lastly relies on the new situation created by the coming into existence of the United Nations, it only draws the conclusion that a negative reply to Question 1 (b) cannot be deduced from that rule. But that conclusion is only a part of the Court's argument in favour of the Organization's right to make an international claim for the damage referred to in 1 (b). Whether this argument be considered as preliminary or auxiliary, or whether it be given a greater importance, it is in any case only an argument by analogy in favour of an affirmative reply, and draws its elements from the new situation, from the identity of the basic principle of the situations compared, and from the relative and in no way rigid character of the rule of nationality.

But in international law, recourse to analogy should only be had with reserve and circumspection. Contrary to what is the case in municipal law, and precisely owing to the principle of State sovereignty, the use of analogy has never been a customary technique in international law.

***

In any case, this argument by the Court brings us to the international obligation which the Court regards as involved in this question, and which seems to be the foundation for the above-mentioned argument by analogy.

It has been asked whether this obligation was derived from Article 2, paragraph 5, of the Charter, or from Article 105. Rut it is evident that the first of these two provisions, which creates a defi-nitely political obligation, could not, if that obligation were infringed, serve to found a right to make a claim for reparation due to the victim. This right presupposes a definite relation between the [p212] victim and the Organization, which cannot be deduced from this general political obligation.

Nor can a foundation be discovered in Article 105. For it is a rule that in so far as diplomatic privileges and immunities impose on a State a duty of special diligence, they only authorize and justify a claim for reparation for damage caused to the State which accredited the victim. So much so that in the case of a consul who was not a national of the claimant State, the right of that State would be limited to direct damage. On the other hand, in the case of a diplomatic representative, a combination of his rights as representative and as national enables reparation due to the victim to be included in the international claim.

On the other hand, it must be observed that :

(1) Article 105 accords privileges and immunities only to officials of the Organization ; this term does not necessarily coincide with that of agent, as the Court has pointed out; i.e., it has not the same meaning or scope ;
(2) Article 105 does not apply exclusively to the Organization. All the constitutions of the Specialized Agencies contain provisions declaring it to be applicable, or provisions in the same terms.

By connecting up the right to claim reparation due to victims with an obligation derived from provisions of such a nature, situations would be arrived at that are contrary to those admitted by international law in regard to master and servant. The result would also be a generalization, in the interest of al1 the Specialized Agencies, of a right which has hitherto belonged only to States; the history of this right is closely connected with the notion of nationality, and it draws from that notion a fictitious identification between State and national.

The political character of the Organization and its importance in the hierarchy of international bodies cannot be pertinent in this case, nor can it justify the granting to the Organization, to the exclusion of other bodies, of a right not derived from a provision common to all.

This argument that the right to make an international claim is based on the recognition by a State of its obligation to respect the public services of another State, was upheld by the French Government's representative, who considered that "a State's international responsibility is involved if the protection prescribed by international law for diplomatic and consular services is not provided. The person of a diplomatic agent must be the subject of special vigilance on the part of the State that receives the agent. If this vigilance is lacking, and damage results, the State whose diplomatic service is concerned can make an international claim." It would further seem that damage referred to in Question 1 (a)[p213] and that in (b) are both included in this claim. The French representative mentioned several precedents in support of this argument; but in truth none of them is conclusive.

On the other hand, the United Kingdom representative thought that the bond of service, as opposed to that of nationality, only gives the State the right to make an international claim for the damage directly suffered by it, i.e., damage referred to in Question 1 (a); and he maintained that it was the insufficiency of this argument to justify a claim for reparation referred to in Question 1 (b) which led to the search for another argument. He claimed to find this in Article 100, which the Court thought was not pertinent.

***

I have enquired into all the details of .is obligation of protection, as found in the arguments of the representatives of governments and of the Secretary-General, because it was adopted by the Court itself at the beginning as a hypothesis. Then the Court found itself faced with a new situation—that the Charter did not expressly Say that the Organization was entitled to include in its claim reparation for injury suffered by the victim or persons entitled through him. The Court then invoked a principle of international law said to have been applied by the P.C.I.J. to the International Labour Organization, to the effect that "the Organization 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".

In application of this principle, the Court states that in order to ensure the efficacious and independent exercise of its duties and to secure effective support for its agents, the Organization must give them suitable protection, and after asserting that it is essential that the agent shall be able to count on this protection without having to count on other protection (particularly that of his own State), the Court concludes that it is evident that the capacity of the Organization to exercise a certain measure of functional Protection arises by intendment out of the Charter.

As this measure is not fixed, the Court adopts the juridical construction given by the Permanent Court to a claim by a State for reparation due to its national, and asserts "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".

I regret I cannot accept this conclusion. [p214]

In the first place, I do not think that Opinion No. 13 of the P.C.I.J. concerning the competence of the International Labour Organization lays down the principle so categorically and absolutely as a principle of international law, as the Court states. The Permanent Court had to give an opinion on the question whether a certain measure recommended by the International Labour Organization was or was not within the Organization's competence ; and it stated that "the terms in which the objects committed to the International Labour Organization are stated are so general that language could hardly be more comprehensive", and that "while the competence .... so far as concerns the investigation and discussion of labour questions and the formulation of proposals.... is exceedingly broad, its competence is almost entirely limited to that form of auxiliary activity." The Permanent Court therefore concluded in the following terms :

"It results from the consideration of the provisions of the Treaty that the High Contracting Parties clearly intended to give to the International Labour Organization a very broad power of co-operating with them in respect of measures to be taken in order to assure humane conditions of labour and the protection of workers. It is not conceivable that they intended to prevent the Organization from drawing up and proposing measures essential to the accomplishment of that end. The Organization, however, would be so prevented if it were incompetent to propose for the protection of wage earners a regulative measure to the efficacious working of which it was found to be essential to include to some extent work done by employers."

This Opinion therefore laid down no general principle. It only interprets the intention of the Parties as to Part XIII of the Treaty of Versailles in the light of the terms generally used therein.

If we admit that the principle proclaimed by the Court is a rule of judicial interpretation and not a recommendation of legislative policy, it would still have to be shown that the suitable protection to be afforded by the Organization to its agent is precisely the right to claim the reparation due to him. This right is evidently not the only suitable method of protection. We know, on the other hand, that the protection which a State owes to its national does not consist in a right of this nature derived from the mere notion of protection ; thanks to the additional help of an ingenious juridical theory, based on nationality, it has identified the State with its national, and it considers that reparation due to the latter forms the measure of reparation due to the State. For this reason, the Court had to establish a link between the necessity for protection, and the right to claim the reparation due to the agent ; namely, the capacity to exercise a certain measure of functional protection and the obligation to "make adequate reparation".[p215]

But the transfer by the Court (p. 183) of the terms used by the Permanent Court in respect of the State and its national, to the Organization and its agents, is a mere affirmation and remains unproved.

It must further be noted that if the Organization must afford this protection in the same way as a State must do for its national (and there is no reason why this should not be so), its right of action against the State responsible can only arise after its agent has exhausted all municipal remedies, and has met with a denial of justice.

But having regard to the situation of an agent of the Organization who is bound to it by a contract in one form or another, the most appropriate and indeed efficacious protection is certainly the reparation which could be granted him by the Organization, which could recover the sum in question from the State responsible.

The only conclusion to be drawn from the foregoing considerations is that the juristic interpretation cannot afford a basis in accordance with the general principles of law, nor one affording an acceptable or satisfactory solution.

I have noted the various suggestions made by governments. The Court has not accepted them, or has accepted only one— namely, the breach of obligations of which the object is to protect agents of the Organization in the exercise of their duties, an obligation which the Court, for that matter, has presumed to exist. But in order to deduce a reply to question 1 (b), the Court had to complete its answer by other propositions which it simply affirmed and, in my view, never established. Inevitably, solutions of an abstract and general character, like functional protection, adopted by the Court, would then be the most extreme. Thus, the Court holds that the Organization has the capacity to make an international claim for reparation due to any agent (in the widest sense of the term) against a State Member or not member of the Organization. As regards this latter case, it may be asked what are the conditions in which the obligation to protect the agent, that the Court assumed to be contained in the Request for the Opinion, can arise. The Organization has even the capacity to make a claim against the national State of the victim itself.

In short, it is impossible to avoid this diversity of arguments or the contradictory solutions arising therefrom, when a rule is removed from the framework in which it was formed, to another of different dimensions, to which it cannot adapt itself as easily as it did to its proper setting. In any case, the new construction would necessarily be artificial and, with the best will of the world, could not entirely satisfy the new requirements.

Suitable rules must be created. A special study of the question would no doubt reveal all the circumstances of fact and the numerous cases in which the question may arise, and the practical [p216] solution that should be given to these various cases in different circumstances. On these data can be built an appropriate juridical construction.

It matters little that the interpretation of the rules of international law in force is in accordance or not with the solutions, so long as the unanimous desire of the General Assembly is to provide a maximum of protection for the agents of the Organization, in the widest sense, and not only for members of the Secretariat.

The Court's duty is to declare the law in the state of evolution that it has reached ; and the Court cannot, in any case, in the presence of new complex and varied cases and contingencies, permit the simple and homogeneous rules, customarily recognized as international law in force, to be the appropriate juristic expression of such situations and contingencies.

According to the rules in force, the Organization has the capacity to make international claims, when one of its agents (in the widest sense) has suffered injury in the performance of his duty, for the damage referred to in Question I (a). This damage may include the damage suffered by the victim, iii so far as this was provided for in the contract of service. But there is nothing to prevent temporary agents, mediators or members of commissions from entering into contracts for reparation due to them in the event of injury sustained in the performance of their duties, whenever the nature of their duties or missions obliges them to expose themselves to danger in the territories of States where they may have to perform these duties or carry out these missions.

This form of reparation will be for the interested parties more direct, more effective and more immediate than any right of making an international claim that might be accorded to the Organization on their behalf.

My reply is therefore yes to Question I (a), and no to Question I (6).

In view of the reply to question 1 (a), the second Question does not arise.

(Signed) Badawi Pasha. [p217]

DISSENTING OPINION BY JUDGE KRYLOV.

[Translation.]

I agree with the Court's Opinion to the effect that the United Nations Organization has the right to bring an international claim with a view to obtaining reparation for damage caused to the Organization itself; i.e., I reply in the affirmative to Question 1 (a) put to the Court by the General Assembly. It is beyond doubt that the Organization is entitled to defend its patrimony; in particular, to claim compensation for direct damage caused to itself, including disbursements in cases where an official of the Organization has suffered injury in the performance of his duties: for example, funeral expenses, medical expenses, insurance premiums, etc. In my opinion an affirmative reply to Question 1 (a) fully meets the practical requirements referred to by the Secretary-General of the United Nations.

I agree in a large measure with the arguments used in the dissenting opinions of Judges Hackworth and Badawi Pasha, and I believe that the United Nations Organization is not entitled, according to the international law in force, to claim compensation for injuries suffered by its agents.

The majority of the Court has founded this right to bring a claim on the right of functional protection exercised by the Organization in regard to its officials and—more generally—its agents.

I entirely associate myself with the desire unanimously expressed by the General Assembly of the United Nations in the recital clauses of its Resolution of December 3rd, 1948, of "ensuring to its agents the fullest measure of protection....".

But I consider that this aim should be attained pvoprio modo, i.e., by the elaboration and conclusion of a general convention. I think that the problem should be approached in the same way as in the Convention concerning the Privileges and Immunities of the Organization, of representatives of governments and of the officials of the Organization.

To affirm, in the Court's Opinion, a right of the Organization to afford international protection to its agents as an already existing right, would be to introduce a new rule into international law and—what is more—a rule which would be concurrent with that of diplomatic protection which appertains to every State vis-à-vis its nationals.

The alleged new rule of functional protection will give rise to conflicts or collisions with the international law in force. The Court is not entitled to create a right of functional protection which is unknown in existing international law.[p218]

The Court itself states that it is confronted with a "new situation", but it considers itself authorized to reason—if I may so express it—de lege ferenda.

I am also unable to associate myself with the following affirmations of the majority of the Court. The Court considers that it may understand the term "agent" in the very widest sense. I think that the term "agent" must be interpreted restrictively. The representatives of the governments accredited to the Organization and the members of the different delegations are not agent-of the Organization. Nor are the representatives of the governments in the different commissions of the United Nations agents of that Organization.

The conflict between the existing rules of international law (diplomatic protection of nationals) and the rules declared by the Court to be in existence—i.e., the rules of functional protection— is still further intensified by the fact that the majority of the Court even declares that the protection afforded by the United Nations Organization to its agent may be exercised against the State of which the agent is a national. We are thus far outside the limits of the international law in force.

I have not lost sight of the fact that the protection afforded by the United Nations is only functional, i.e., it is only asserted in crises where the agent of the organization is "performing his duties", but the conflict between the two methods of protection—that of the United Nations Organization and that of the State—nevertheless subsists.

It should also be observed that the relations between a State and its nationals are matters which belong essentially to the national competence of the State. The functional protection proclaimed by the Court is in contradiction with that well-established rule.

I therefore feel justified in asserting that the protection by the United Nations Organization of its agents could not be well founded from the standpoint of the international law in force, even if we are considering the relations between the United Nations and its Members.

Still less is it possible to assert this right of the United Nations Organization vis-à-vis non-member States. It is true that paragraph 6 of Article 2 of the Charter lays down that States which are not members of the United Nations should act in accordance with the Principles of the Organization (Chapter 1 of the Charter) “so far as may be necessary for the maintenance of international peace and security". But this paragraph has very little connexion with the right of the United Nations to bring an international claim with a view to obtaining reparation for damage.

It is true that the non-member States cannot fail to recognize the existence of the United Nations as an objective fact. But, in order that they may be bound by a legal obligation to the [p219] Organization, it is necessary that the latter should conclude a special agreement with these States.

I associate myself with the concern of the majority of the Court to find appropriate legal means whereby the United Nations may attain its objects—i.e., in the present case, protect its agents. But, as I have already said, we must found the right of the Organization to bring an international claim in order to protect its agent .on the express consent of the States, either by the preparation and conclusion of a general convention, or by agreements concluded between the Organization and the respective States in each individual case.

In my view, the Court cannot sanction by its Opinion the creation of a new rule of international law, particularly in the present case, where the new rule might entail a number of complications
.
The majority of the Court has in view the functional protection of an agent of the United Nations Organization, even as against the national State of the agent. But it has not borne in mind, for example, the opposite—and possible—situation in which the said State may find it desirable and necessary to protect the agent against the acts of the Organization itself.

The Court can only interpret and develop the international law in force ; it can only adjudicate in conformity with international law. In the present case, the Court cannot found an affirmative. reply to Question I (6) either on the existing international convention or on international custom (as evidence of a general practice,), or again, on any general principle of law (recognized by the nations).

Such are the reasons for my negative answer to Question 1 (b) put by the General Assembly, and they render it unnecessary for me to give an answer to Question II.

(Signed) S. Krylov. [p220]

ANNEX.

LIST OF DOCUMENTS SUBMITTED TO THE COURT.

Documents submitted by the Secretary-General of the United Nations in the course of the written proceedings.

1. Document of the General Assembly (A/674, October 7th, 1948).

2. Record of Plenary Meeting of General Assembly (A/PV 169, December 3rd, 1948).

3. Documents of Sixth Committee of the General Assembly.

A/C.6/275. A/C.6/282.
,, 275/Rev. I. ,, 283.
,, 276. ,, 284.
,, 277. ,, 285.
,, 278. ,, 286.
,, 279. ,, 287.
,, 279/Corr. I. ,, 291.
,, 280. ,, 292.
,, 281 ,, 293.
,, 281/Rev. I. ,, 294.
,, 281/Rev. 2.


4. Report of Sixth Committee of the General Assembly (A/749, December 2nd, 1948), Corr. 1, French text, and Corr. 2, English text.

4. Records of Sixth Committee of the General Assembly.

A/C.6/SR 112. A/C.6/SR 118.
,, 113. ,, 119.
,, 114. ,, 120.
,, 115. ,, 121.
,, 116. ,, 124.
,, 117. ,, 124, Corr. 1, Engl. text.
 

 
     

 

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