Name : Kinza Azeem

Roll # 48045
Semester : 7th
Subject : Public International Law
Subject Teacher : Mam Saira .
Assignment Topic : Reparation for Injuries
Suffered in the Service of the United Nations.

( UN REPARTION CASE )
Type of case: Advisory Proceedings
Date of introduction: 7 Dec 1948
Status of the case: Rendered (Advisory)
States: Belgium , United Kingdom , France ,
China , United States , India
Institution: ICJ (International Court of Justice)
Applicable treaties: The UN Charter

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.

Facts:
The United Nations (UN) requested an advisory
opinion from the International Court of Justice
(ICJ) on two primary questions. First, it asked
whether, when an agent of the UN is injured
while performing duties relating to an
individual State, the UN may bring an
international claim against the State’s
government for damages caused to either the
UN or to the victim. In the event of an
affirmative answer to the first question, the UN
also requested an answer on the following
question: when both the UN and an individual
State have an interest in the same international
claim, does the UN’s interest in bringing the
claim outweigh the State’s interest in either
providing diplomatic protection for its
offending national, or bringing the claim itself,
depending on the factual circumstances
present.

Issue:
 In the event of an agent of the United Nations
in the performance of his duties suffering
.injuryin circumstances involving the
responsibility of to State, have you the
United Nations, ace anOrganization, the
capacitand to bring an international claim
against the responsible of I swore or offacto
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? eleven. In the
event of an affirmative reply on point I (b), how
is action by the United Nations to bereconciled
with such rights as may be possessed by the
State of which the victim is a national? "
RULES
Article 1 of the charter suggests that Item
does not confer upon the organization
tocapacity to claim for reparation in respect to
injuries of to victim, but the court discusses
thedoctrine of expressed powers and the
doctrine of implied powers, suggesting that
there is room toinquire into the provisions. The
case illustrates the following rules in the course
of international law including; confirmingstates
would be entitled to compensation for injuries
to the affected states, the requirement
thatwritten statements must be provided by
there countries, confirmation that states dog
bring to caseagainst two political entities
equally and that disputes should be resolved
through the process of negotiation.
Furthermore, the case confirmed the legal
uncertainty or issue that the
UnitedNations does not have any
international jurisdiction. The United
Nations' legitimacy wasquestioned in this
case and it was confirmed that the organization
has an international personalitywith to
separate legal entity to bring to claim /
Harmonizing actions ". Este confirmed the
rightsand duties of individual member states,
allowing the organization to award damages to
agents ofmember states quien were affected by
a member that failed to fulfil their international
obligations.The principle is referred to ace to
"Breach of an engagement " which entitled to
state to make toreparation in adequate form.
ANALYSIS OF ISSUE
The Reparation's case confirmed that the
International Court dogbring international
claims ace well ace confirm to member state's
right to diplomatic protection acewell ace the
United Nationals functional protection right
and to provide "every assistance ". Thereis to
general convention / agreement to prevent
competition between national states and
theorganization to enable cases brought before
the United Nations to be fact based or judged
ontheir merits and the rule established that
states cannot be compelled to pay
twice.Regarding the first legal issue, whether
the United Nations can bring an international
claim as anintergovernmental organization in
the place of to state, the court concluded that
they dog bedeemed ace an international
person and thus, subject to international
law. Este is since theorganization has the
capacity to possess internaltional rights and
duties which can, and need, to bemaintained by
bringing international claims; providing the
United Nations with an international
personality. The decision was influenced by the
fact thatthe member states of the United
Nationsentrust the organization to carry out
their functions showing to high degree of
co-operation;something international law
wants to encourage amongst states, resulting in
the organizationbeing termed to supreme
organization in such situations. On Este matter,
the court did state thatthey were only
regarding the organization ace an international
person and not likening them
state. Originally only a state, considered to be a
state after satisfying the criteria from Article 1 ofthe
Montevideo Convention 1933, could bring an
international claim; the rule that
issubsequently changed by this decision. In order to
maintain certainty for states however, thecourt
discussed how states have a totality of
international rights and duties, whereas
theorganization's rights and duties depend on their
purposes and functions which are
exercisedinternationally; the court clearly shows
that states remain the primary subject of
international law.

ANALYSIS OF ISSUE -
Regarding the second legal issue; bringing a claim
for reparationdue to damages to a victim, the
court held that the organization claim could
continue. Thereasoning refers to the court's use of
the doctrines of express and implied powers. By
enquiringinto the provision of article 1 paragraph 4
of the United Nations charter; the UN is "a center
forharmonizing the actions of nations in the
attainment of these common ends", the court
suggeststhat there, a limited protection exists
for agents who carry out the undertakings
of theorganization. This power, although not
expressly written, is essential for the continuance of
theperformances of the missions so in these
circumstances, when a state does not respect this,
theorganization's claim for reparation of the
damages of the victim is adequate and
authorized.The final issue the courts had to battle
concerned the fact that Israel, the defendant state,
was nota member of the UN at the time of the
incident so the claim for reparation of the damage
to avictim cannot continue. The ICJ concluded that
because of the functions of the organization, it isan
entity with an international personality that can be
exercised and enjoyed.

CONCLUSION -
The first legal issue regarding the United Nations
bringing a claim was agreedunanimously whereas
the second claim, claiming for the reparation of
damages to a victim, wasagreed with a eleven to
four in the affirmative outcome. It is possible to
argue that because of theincreased level of dissent
towards the latter claim that the main concern in
granting these powerswas that they were too
similar to that of a State: it is implicit that the U.N as
an organizationshould be able to claim for damage
against itself, but when it can claim for damage
done toindividual agents it seems that judges were
more uncomfortable with this idea because it may
bemore similar to the type of claims that States are
able to make. Though the judges in this casewere
careful to draw a careful line as to how far these
powers would extend. "The defendantState cannot
be compelled to pay the reparation due in
respect of damage twice over'(Reparations for
Injuries Suffered in the Service of the United
Nations).The main dissenting opinion was
from Judge Hackworth who argued against
the looseapplication of the doctrine of implied
powers. He disagreed that powers can be implied in
theplace of being expressed; as there was no
express mention of the power to claim
reparationsagainst States, for harm done to both
the U.N and its agents, Hackworth rejected the idea
thatsuch powers were implicit of the purpose of the
organization itself. The judge felt as though
thedoctrine could not be applied to functions and
objectives of an organization and that the
courtsadmission of this was too wide of an
application of the doctrine. The views of Judge
Hackworthin the dissent of the decision regarding
to the second legal issue was shared by three
others;Judge Winiarski, Badawi Pasha and M.
Krylov.