ICJ Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations
Citation: [1949] I.C.J. Rep 174
Jurisdiction : International Court of Justice
Requesting Organ: The United Nations
Facts :
Count Folke Bernadotte, a UN mediator, was assassinated by a zionist terrorist group in Jerusalem in 1948 while performing his duties for the UN. The United Nations General Assembly submitted 2 questions to the ICJ regarding reparations from Israel.
Issues :
1. If a UN agent suffers injury while performing his duties where a state might have responsibility, does the UN have the capacity to bring an international claim against such state for reparations for the damage caused to (a) the UN itself, and (b) the victim or persons entitled through him?
2. If the answer to Question-I(b) is yes, then how is the UN action to be reconciled with the rights of the victim’s national state?
Decisions :
A central issue was the determination of whether the UN has a legal personality or not. The UN Charter does not explicitly settle this. But the ICJ looked into the character of the UN as given by the Charter and concluded that the UN was intended to exercise functions and enjoy rights which can only be explained on the basis of possessing international personality and the capacity to operate in the international plane, and such has been respected by its member states in practice. Thus, the UN possesses International legal personality. Consequently, the UN also has the capacity to bring an international claim against a member or a non-member state for damage suffered by itself. The Court did not fix the extent of the reparation as it would vary from case to case.
The Court found the Question-I(b) to be more complex as there was no bond of nationality between the UN and its agent. The UN agents remain nationals of their own states which hold the power of diplomatic protection already. However, the traditional rule of diplomatic protection exercised by the states is not a limitation to the UN’s power to bring a claim on behalf of its agents, as the organization is not bound by the rule which binds states exclusively. On inadequacy of the UN, if the agents have to rely on their national states for protection, then the independence of the UN under Article 100 of the Charter would be compromised. The agent’s national state’s power and it’s political or social standing may vary, which does not ensure uniform protection for all agents of the UN. This problem is further aggravated by the scenario where the agent is stateless. Thus, the Court held that the UN could claim reparations for any damage to its agents to ensure “functional protection”. As the UN agents have to work in dangerous places, the UN must be able to assure them that it has the power to ensure effective protection.
The Court refused to fix the level of priority between the claim of the UN and the of the agent’s national state. Instead, the Court cited Article 2 of the UN Charter according to which the member states have a duty to render every assistance to UN as a potential approach to this issue. Alternatively, the Court suggested following general convention or a case by case agreement between the UN and the national state of the Victim. However, in no case can the defendant state be compelled to pay the reparations more than once. If the national state of the agent is also the state being sued, it makes no difference according to the Court, as the UN’s claim does not depend on the nationality of its agent.
Relevant Laws :
- The ICJ Statute
- Articles : 65, 66
- The UN Charter
- Articles : 1, 2, 100
- Convention on the Privileges and Immunities of the UN
- Section : 35
Author :
1. S.M. Monzur Morshed
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