Reparation

for Injuries Suffered in

the Service of the United Nations
(Advisory Opinion)
Pierre d'Argent

Content Product: Max Planck

type: Encyclopedia entries Encyclopedia of Public
Article last International Law [MPEPIL]
updated: December 2006

Subject(s):
United Nations (UN) — Reparations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19
September 2017
 A. Factual Background
1 The factual background of the second advisory opinion to be delivered by the → International
Court of Justice (ICJ) is the series of tragic incidents directed against → United Nations (UN)
personnel in → Palestine that culminated in the assassination, on 17 September 1948, of Count
Folke Bernadotte of Sweden, the UN mediator in the Palestine conflict, and of Colonel André Sérot, a
French UN observer (→ Advisory Opinions). These murders were attributed to a group of Israeli
extremists—the Stern Group—whose members had so far failed to be arrested and prosecuted by
the Israeli authorities (→ Terrorism). At the request of the UN Secretary-General, the UN General
Assembly addressed several legal questions to the ICJ in order to assert the capacity of the
organization to bring claims for → reparations due in respect of damages caused to itself and to its
agents, and to elucidate the conditions governing the presentation of such claims, be they directed
against a Member or a non-Member State (UNGA Res 258 [III] [3 December 1948] → United
Nations, General Assembly; → United Nations, Secretary-General). It may indeed be recalled that
the assassination took place after → Israel declared independence on 14 May 1948 but before it
was admitted to the UN on 11 May 1949. The advisory opinion was delivered on 11 April 1949.

B. Questions Raised
2 Two questions were put to the Court. The first was about the capacity of the UN, as an
international organization and in the event of one of its agents suffering injury in the performance
of its duties in circumstances involving the responsibility of a State, ‘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’ (Reparation for Injuries Suffered in the Service of the United Nations [Advisory
Opinion] [‘Reparation for Injuries’] 175 ; → Claims, International; → De facto Organs of a State;
→ International Organizations or Institutions, General Aspects; → State Responsibility). If the
Court replied affirmatively to point b) of this question, the second question related to the
reconciliation of the UN claim with the one that could be brought by the national State of the victim.

3 After having construed the word ‘“agent” in the most liberal sense’ (Reparation for Injuries 177),
the Court supposed that the damage resulted from a failure to perform an obligation of protection
due to the UN personnel by the State against which the claim was directed. The court addressed
each part of the first question by assuming that the responsible State was a member of the UN; it
dealt later with the situation of the defendant being a non-Member State (→ International
Organizations or Institutions, Membership).

4 The central question being related to the ‘capacity to bring an international claim’ (ibid 175), the
Court had to define what is meant by such capacity and whether it belongs not only to States but
also to an international organization. The Court considered that the capacity to bring an
international claim meant ‘the capacity to resort to the customary methods recognized by
international law for the establishment, the presentation and the settlement of claims’ (ibid 177). In
order to determine whether the UN had such capacity, the Court inquired first about its international
personality. This part of the opinion is rather doctrinal since the international personality of the UN
was not disputed before the Court. Historically, the fact that the actual words of the → United
Nations Charter (‘UN Charter’) did not settle the issue was because the drafters considered it
superfluous to make a specific provision for that purpose. The scope of Art. 104 UN Charter (1997)
to which no reference is made by the Court is thus implicitly limited to the domestic legal capacity
of the UN. Considering that ‘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’ (ibid 178), the Court analysed the intention of the drafters of the UN Charter, the
characteristics of the organization and its practice of contracting treaties (→ United Nations
Charter, Interpretation of). It concluded unanimously that the UN is ‘an international person’ (ibid
179). The court stressed that the international legal personality of the organization—which could

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19
September 2017
 not be considered as ‘a super-State’ (ibid)—was certainly not identical to that of a State since ‘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’ (ibid 180).
Nevertheless, as a subject of international law, the organization was ‘capable of possessing
international rights and duties’ (ibid 179) and had ‘capacity to maintain its rights by bringing
international claims’ (ibid). Such capacity included the capacity to bring a claim of the kind
described in the question asked by the UN General Assembly, because the ‘functions of the
Organization are of such a character that they could not be effectively discharged’ (ibid 180)
without the endowment of such capacity. In other words, the Court considered such capacity
inherent in the international legal personality of the organization.

5 On point a) of the first question, the Court unanimously found it ‘clear’ (ibid) that the UN had the
capacity to bring a claim in relation to damage caused to itself, ie ‘to its administrative machine, to
its property and assets, and to the interests of which it is the guardian’ (ibid). The court indicated
that the ‘measure of the reparation should depend upon the amount of the damage which the
Organization had 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’ (ibid 181).

6 Turning to point b) of the first question, the Court argued that the traditional → diplomatic
protection rule of the → nationality of claims did not prevent the organization claiming damages
caused to the victim, since the ground of such claim would be the breach of an obligation owed to
the organization itself, namely an ‘obligation designed to help an agent of the Organization in the
performance of his duties’ (ibid 182; → International Organizations or Institutions, Implied
Powers). Admitting that it was ‘faced with a new situation’ (Reparation for Injuries [Dissenting
Opinion by Judge Badawi Pasha] 213), the Court enounced the theory of implied powers of
international organizations by considering that the UN ‘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’ (ibid). By 11 votes against 4 the
Court ruled that the ‘functional protection’ (Reparation for Injuries 184) of the agents by the
organization ‘arises by necessary intendment out of the Charter’ (ibid) as it was essential in order
to ensure the good and independent performance of his duties. The logic of functional protection is
similar to the one of diplomatic protection since ‘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’ (ibid). The four dissenting
judges—the Soviet judge Krylov concurring with the American judge Hackworth—criticized such
innovative understanding of the rules and considered that a claim on behalf of an individual could
only be made by its national State.

7 After having answered both parts of the first question assuming that the defendant was a
Member State of the UN, the Court dealt with the capacity of the UN to address a reparation claim to
a non-Member State. With the same majorities, the Court again answered positively to the two parts
of the first question, stating its opinion in a short and decisive dictum which has remained famous:

[F]ifty 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. (Ibid 185)

8 Finally, the Court addressed the second question, which related to the potential competition
between the State acting in diplomatic protection of its national and the organization acting in
functional protection of its agent. By ten votes against five, the Court held that conflict between
those claims would usually be prevented because the organization could only base its claim upon
a breach of an obligation due to itself. Considering that none of those two possible claims—which
have different bases—had priority over the other one, and that neither the national State nor the

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19
September 2017
 organization had a duty to refrain from bringing such claims, the Court appealed to the parties
concerned to ‘find solutions inspired by goodwill and common sense’ (ibid 186), stressing that Art.
2 (5) UN Charter might be of relevance in that regard. A dual claim could however not result in a
dual indemnity of the same damage. The court qualified as ‘ordinary practice’ (ibid)—and not as a
rule—the fact that States usually refrain from protecting nationals when they are also considered as
nationals by the defendant State (→ Multiple Nationality). Such practice was however of no
relevance as far as the action of the organization was concerned, since it was based purely on the
status of the victim as an agent of the organization. Therefore, the functional protection of the
agent against its national State was, as a matter of principle, admissible.

C. Assessment and Relevance

9 On the basis of the Court’s opinion, the UN General Assembly authorized the UN Secretary-
General to press for a claim (UNGA Res 365 [IV] [1 December 1949]). Hence, in April 1950, Israel
was asked to present a formal apology (→ Satisfaction), to arrest the culprits and to pay an
indemnity of $54,624 (UNGA ‘Annual Report of the Secretary-General on the Work of the
Organization [1 July 1949–30 June 1950]’ GAOR 5th Session Supp 1, 124). This sum related only to
the damage suffered by the UN itself, as the family of Count Bernadotte did not present any claim.
All rights relating to the death of Colonel Sérot were expressly reserved. In June 1950, Israel
remitted the claimed sum as reparation for the monetary damage borne by the UN in connexion
with the death of Count Bernadotte, and expressed ‘its most sincere regret that this dastardly
assassination took place on Israeli territory, and that despite all its efforts the criminals have gone
undetected’ (UNSC ‘Letter Dated 14 June 1950 from the Minister for Foreign Affairs of the
Government of Israel to the Secretary-General concerning a Claim for Damage Caused to the
United Nations by the Assassination of Count Folke Bernadotte and a Reply Thereto from the
Secretary-General’ [14 June 1950] UN Doc S/1506). The Israeli government explained at length why
it considered that, failing new evidence, the re-examination of the case—which it did not regard as
closed—was unlikely to be successful. The UN Secretary-General considered this to ‘constitute
substantial compliance’ (ibid) by Israel with the UN claim (→ Compliance).

10 The opinion may be considered as having laid the foundations for the development of treaties
relating to the protection of UN personnel, notably the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the
Convention on the Safety of United Nations and Associated Personnel, and the Optional Protocol to
the Convention on the Safety of United Nations and Associated Personnel (→ Civil Service,
International).

11 The opinion has become standard reference in any textbook addressing the legal personality,
capacity and competences—three different concepts that are not clearly distinguished by the
opinion—of international organizations. The dictum on the objective personality of the UN, even if
sometimes questioned when applied to other organizations, is certainly settled law. The same can
be said about the implied powers doctrine and the principle of functional protection. In relation to
the → World Health Organization (WHO), the Court recalled the implied powers doctrine developed
in Reparation for Injuries (→ Nuclear Weapons Advisory Opinions). Even if dealing with a specific
organization—the UN—the opinion is usually referred to when addressing issues relating to the
international personality and capacity of any intergovernmental organization. More specifically, it
has been relied on in legal doctrine in order to affirm the legal personality of the European Union
(→ European Union, Historical Evolution).

Select Bibliography
L Garcia Arias ‘El Segundo dictamen del Tribunal Internacional de Justicia: La reparación por
daños sufridos al servicio de la Naciones Unidas’ (1949) 2 REDI 977–1005.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19
September 2017
 Y-L Liang ‘Notes on Legal Questions Concerning the United Nations: Reparation for Injuries
Suffered in the Service of the United Nations’ (1949) 43 AJIL 460–78.
FB Sloan ‘Reparation for Injury to Agents of the United Nations’ (1949) 28 NebLRev 401–17.
Q Wright ‘Responsibility for Injuries to United Nations Officials’ (1949) 43 AJIL 95–104.
Q Wright ‘The Jural Personality of the United Nations’ (1949) 43 AJIL 509–16.
C Eagleton ‘International Organization and the Law of Responsibility’ (1950) 76 (1) RdC 319–
425.
BK Joel,De la responsabilité internationale des Etats envers l’Organisation des Nations
Unies pour dommages corporels subis par ses agents ou représentants sur leur territoire
(Université de Paris Paris 1950).
J-F Lalive ‘Some Observations on the Question of Reparation for Injuries Suffered in the
Service of the United Nations’ (1950) 20 ActScandJurisGent 56–69.
F Falcone,Riparazioni per Danni subiti al servizio delle Nazione Unite (Ires Palermo 1951).
HR Braunschweig,Der internationale Beamtenschutz nach dem Gutachten des
Internationalen Gerichtshofes vom 11. April 1949 über die Wiedergutmachung der im
Dienste der Vereinten Nationen erlittenen Schäden (Universität Basel Basel 1956).
G Weissberg,The International Status of the United Nations (Oceana New York 1961) 170–
200.
P Gautier ‘The Reparation for Injuries Case Revisited: The Personality of the European Union’
(2000) 4 MaxPlanckUNYB 331–61.

Select Documents
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)
[1949] ICJ Pleadings.
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)
[1949] ICJ Rep 174.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19
September 2017