Reparation for Injuries Suffered in the Service of the United Nations (1949)

This is the opinion that made the United Nations a person. Before it, the orthodox proposition was that only States are subjects of international law. After it, an intergovernmental organisation could hold rights, owe duties and sue on the international plane in its own name. Every later question about the legal capacity of the specialised agencies, of the European institutions, and of any treaty body, is answered by the method this opinion invented.

It also gave international law a second doctrine, functional protection, which sits alongside diplomatic protection and is not derived from nationality at all.

A series of attacks had been made on agents of the United Nations in the course of their duties, the most notorious being the killing of the Organisation's Mediator in Palestine in 1948. The General Assembly wanted to know whether the Secretary-General could himself pursue the responsible government for reparation, or whether he had to wait for the agent's national State to act.

1. Where an agent of the United Nations suffers injury in circumstances involving the responsibility of a State, has the Organisation the capacity to bring an international claim against the responsible de jure or de facto government, to obtain reparation for the damage caused (a) to the United Nations and (b) to the victim or those entitled through him?
2. If the answer to 1(b) is yes, how is that action to be reconciled with the rights of the State of which the victim is a national?

The Organisation has that capacity in both branches, and against a defendant State whether or not it is a Member. Where the victim has a nationality, the State's right of diplomatic protection and the Organisation's right of functional protection may both exist; no rule of law gives priority to either.

Step one: is the Organisation a person at all? The Court said 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." That sentence is the whole method. Personality is not a fixed club with a fixed membership; it is a function of what the international community has found it needs.

The Court then read the Charter for what it had actually done. It had not been content to make the Organisation merely a centre "for harmonizing the actions of nations in the attainment of these common ends"; it had equipped that centre with organs and special tasks, required Members to give it every assistance, required them to accept and carry out Security Council decisions, and given it legal capacity, privileges and immunities in the territory of each Member. Practice pointed the same way: the Convention on Privileges and Immunities of 1946 creates rights and duties between each signatory and the Organisation, and it is difficult to see how such a convention could operate except between parties possessing international personality.

The conclusion is carefully bounded. The Organisation "is an international person", but that "is not same thing as saying that it is a state, which it certainly is not", still less a super-State. What it means is that it is a subject of international law, capable of possessing international rights and duties, and with capacity to maintain its rights by bringing international claims.

Step two: does personality carry this particular right? Here the Court drew the distinction that every examiner wants. A State possesses the totality of international rights and duties recognised by international law. The rights and duties of an organisation "must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice." This is the doctrine of implied powers in its international form: the functions of the Organisation could not be effectively discharged if they involved the concurrent action on the international plane of fifty-eight or more Foreign Offices, so the Members must be taken to have endowed it with capacity to bring claims when the discharge of its functions requires it.

Step three: the obstacle of nationality of claims. The traditional rule is that diplomatic protection is exercised by the national State. The Court dismantled the objection in three moves. First, that rule governs claims brought by a State, and this is a different and new case. Second, even between States there are exceptions where protection is exercised on behalf of non-nationals. Third, and decisively, the rule rests on the proposition that only the party to whom an international obligation is due can claim for its breach: and that is exactly what the Organisation does, because the obligations States assume to enable agents to perform their duties are undertaken not in the interest of the agents but in that of the Organisation. So the rule of nationality of claims does not obstruct the Organisation; the principle underlying it positively supports the Organisation's capacity.

Step four: why the agent must not depend on his own State. The Court's reasoning here is practical and is the heart of functional protection. Missions by their nature involve unusual dangers; injuries may occur in circumstances where the national State would not be justified in claiming, or would not feel disposed to. To ensure the independence of the agent and therefore of the Organisation, it is essential that in performing his duties he need not rely on any protection other than that of the Organisation, and in particular not on his own State, because that would compromise his independence contrary to the principle applied by Article 100 of the Charter. The assurance is even more necessary where the agent is stateless.

Step five: non-members. The boldest passage. The Court held 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". Objective personality is opposable to States that never consented.

Question II. Competition between diplomatic and functional protection may arise, and there is no rule assigning priority; in practice it is resolved by goodwill and by agreement. Where the agent is a national of the defendant State, the ordinary practice about dual nationals is not a relevant precedent, because the Organisation's action is based not on nationality but on status as agent; the question of nationality is not pertinent to admissibility.

• The examinable sentence on personality is the one about subjects not being identical in nature. Quote it and then explain that it converts personality from a status into a functional question.
• The examinable sentence on capacity is that an organisation's rights depend on its purposes and functions as specified or implied in its constituent documents and developed in practice. That is the doctrine of implied powers.
• Distinguish diplomatic protection (based on nationality, exercised by a State, discretionary) from functional protection (based on the agent's status, exercised by the organisation, asserting the organisation's own right).
• The Court cited the principle that the breach of an engagement involves an obligation to make reparation in an adequate form, taken from the Permanent Court's Judgment No. 8 of 26 July 1927. That is the bridge to the law of State responsibility.