|
[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]
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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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