court: icj

doctype: dom

caseName: Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)

decisionType: judgment

procedure: Assessment of the amount of compensation due from the People's Republic of Albania to the United Kingdom of Great Britain and Northern Ireland (including the text of the declaration of the Judge Krylov)

publisher: International Court of Justice

title: Judgment of 15 December 1949

text: YEAR 1949

type: rubrik

text: December 15th, 1949

type: stycke

text: THE CORFU CHANNEL CASE

text: (ASSESSMENT O F T H E AMOVIVT 01; ('0JIPESS.ITIOK DUE FKORI THE PEOPLE'S REPCBLIC OF -4LBANIA TO T H E VNITED KINGDOM OF GREAT HRITAIS AND NORTHERN IRELASI))

text: .-lascs.srii<~nt I J / trirrorriit o f c~orir~c~iisatior~ ( f i r ~ . on c~rrc~rriif of c1~t.r i1~1oli.ing thtz iiztcv~zntioiinl v c ~ s p o ~ ~ s i b i l i t - , of (i .Strrt~,.-Ol>j<*ciic,ir to tht. C o ~ t r t ' s jurisdiclio?? ; res j ~ i < t i ~ ~ t ; i . - P ~ ~ o c ~ ~ ( l i r ~ r i l 1 d ~ ~ f ~ t 1 4 l t . - : ~ i ) p I i ~ ( ~ t i o i r (iii(1 interprc'tation of .Irticle j g of tlica Stntirlr.--7'c.~~l1iiic~tr/ ~ i t i t i r v ~ ~ $11 qzcestions involztcd.-lI~'nrs/iip.~.--Eizqi~i~'~* ( ~ , r p t 3 v f . ~ . - - - - . l i ~ ~ ~ ~ . ~ i r ~ ( 2 O/ c o i r i p e ~ ~ s a t i o i r . - D o r r r ~ ~ ~ ~ ~ z t ( ~ i ~ y L . ~ , ~ ~ C I I C ( .

text: Present : . l cti+lc Pvesident GUERRERO ; Jzrtlges ALY.\IIEZ, HACK- WORTH, ~ ~ I N I A R S K I , ZORICIC, DE T T 1 ~ ~ ~ l l > : ~ , Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, HSU MO, AZEVEDO ; M. EEER, Judge ad hoc ; M. HA&IBRO, Regisfrar.

text: JUDG3,IENT OF 1 j XII 49 (CORFU-CO~~PENSATIOS) 245

text: I n the Corfu Channel case (assessment of the anlount of coinpensation) ,

text: bet-een

text: the Goveriiment of the United Kingdom of Great Britaiii and Northern Ireland, represented by :

text: Sir Eric Beckett, K.C.M.G., K.C., Legal adviser to the Foreign Office, as Agent and Counsel, assisted by Sir Frank Soskice, K.C., M.P., Solicitor-General, as Counçel ;

text: the Goveinment of the People's Republic of Xlbania, not represented,

text: composed as above,

text: delivers the following judgment :

text: By a Judgment delivered on April gth, 1949, iii the Corfu Chanilel case (merits), the Court declared the People's Kepublic of Albania responsible under interiiational law for the explosions which occurred on October aznd, 1946, in Albanian waters, and for the damage and loss of human life that resulted therefrom to the United Kingdom of Great Britain and Northern Ireland (I.C.J. Reports 1949, p. 4).

text: In that judgment the Court decided that it had jurisdictioii to assess the amount of compensation but stated that it could not do so in the same judgment, as the Albanian Government had iiot yet stated which items, if any, of the various sums claimed it contested, and as the Vnited Kingdom Government had not submitted its widence with regard thereto. The Court therefore stated that further proceedings on this subject were necessary and that the order and time-limits of these proceedings ~vould be fised by an orrler of the same date.

text: In this order, the Court, after iioting that the Goveriinicnt of the rilitcd Kingdom had stated, in its Memorial of October ~ s t , 1947, the various amounts clainied by way of compensation, and after reserving the right of the Parties to avail themselves of the provisions of Article 68 of the Rules of Court, fised, in accordance with Article 48 of the Statute, the following time-limits : June zgth, 1949, for the observations of the Albaniail Goverilment ; July zgth,

text: 1949, for the reply of the Vnited Kingdom Government, and August 25th, 1949, for the reply of the Albanian Government. Finally , the Court directed that further procedure, including the appointment of experts in case of agreement being reached by the Parties both as to the subject of the experts' opinion and as to the names of the experts, should be regulated by order of the President of the Court in this case.

text: On June 24th, 1949, the President of the Court made an order in which it was stated that by telegram, dated at Tirana, June z y d , 1949, the Deputy-Minister for Foreign Affairs of Albania had asked for the extension of the time-limit for the presentation of the Albanian observations to July ~ s t , 1949, and that there was no reason for refusing that request. The President accordingly decided to extend the time-limits fixed by the Order of the Court of April 9th as follows : July ~ s t , 1949, for the observations of the Albanian Government ; August 1st for the reply of the Government of the United Kingdom ; September 1st for the reply of the Albanian Government .

text: In a letter dated June zgth, 1949, the Agent for the Albanian Government informed the Court that, in the opinion of his Government : "in accordance with the Special Agreement signeà between the Agents of the People's Republic of Albania and of Great Britain, on March 25th, 1948, and presented to the Court on the same day, the Court had solely to consider the question whether Albania was, or was not, obliged to pay compensation for the damage caused to the British warships in the incident of October zznd, 1946, and the Special Agreement did not provide that the Court should have the right to fix the amount of the compensation and, consequently, to ask Albania for information on that subject".

text: The United Kingdom Government filed its observatioiis

text: within the time fixed and invoked Article 53 of the Statute. The

text: Albanian Government filed no reply or other document. The case became ready for hearing after September ~ s t , 1949, and the date of the commencement of the hearing was fixed for November 17th.

text: In a telegram dated November 15th, the Deputy-Minister for Foreign Affairs of ~ l t a n i a reasserted the opinion expressed in the Albanian Agent's letter of June zgth, and stated that the Albanian Government did not consider it necessary to be represented a t the hearing.

text: At the public hearing on Xovember 17th, the Court heard statements by SirEric Beckett, K.C., Agent, and Sir Frank Soskice, K.C., Counsel for the United Kingdom. The latter asked the Court to give judgment that the amount of compensation due \ras the

text: JUDGibIENT OF I 5 XII 19 (CORFU-COMPENSATION) 247 amouilt stated in the final submissions contained in the written Observations of the Cnited Kingdom dated July &th, 1949, namely : in respect of H.M.S. Saumarez . . 700,087 in respect of H.M.S. Volage . . . . . £ 93,812 in respect of deaths and injuries of naval

text: personnel . . . . . . . . . . . jl 50,048

text: Total . . . . . L 843,947

text: The -4lbanian Government was absent and made no submissioils. At the same sitting, after the Agent for the llnited Kingdom Goverilment had been heard, the President announced that the Court had decided, in pursuance of paragraph 2 of Article 53 of the Statute, to examine the figures and estimates submitted by the United Kingdom Government, and, in conformity with Article 50 of the Statute, t o entrust this investigation to experts as it involved questions of a technical nature.

text: In an Order dated November ~ g t h , 1949, the Court appointed as experts Rear-Admiral J . B. Berck, of the Royal Netherlands Navy, and Mr. G. de Rooy, Director of Naval Construction, Koyal Netherlands Navy, with instructions to "examine the figures and estimates stated in the last submissions filed by the Government of the United Kingdom regarding the amount of its claim for the loss of the Sazcmarez and the damage caused to the Volage". The Court fixed December 2nd as the time-limit for the filing of the experts' Report. This document \vas filed within the time fixed, aiid duly communicated to the Parties. A time-limit expiring on December 10th was given them for the submission of observations.

text: As some members of the Court had asked for certain explanations in regard to the Report, the experts, summoned to a m-ting of the Court, replied on December 3rd to questions put to them. These replies were immediately communicated to the Parties.

text: The United Kingdom Government, by telegram dated December 6th, 1949, and confirmed by a letter of the same date, stated that it noted that the experts had come to the conclusion that the claim submitted by that Government might be taken as a fair and accurate estimate of the damage sustained and did not therefore wish to make any observations on the particular calculations of the experts. On the expiry of the time-limit granted to the Parties for the submission of their written observations, a letter signed by the Albanian Chargé d'Affaires in Paris, and dated Llecember ~ o t h , 1949, was handed to the Registrar of the Court. This letter asked for a change in the procedure instituted by the Court for the submission of observations and, failing that, for a prolongation of the appointed time-limit until December z y d . The Court points out that i t has given ample opportunity to the Albanian Government to defend its case ; that, instead of availing itself of this o p ~ o r t u n i t y , that Government has twice disputed the Court's jurisdiction in the preseiit part of the proceedings, that it did not file submissioi~s and declined to appear a t the public hearing on November 17th. In those circumstances the Court cannot grailt the request of the Albanian Governrnent.

text: As has been said above., the Albanian Govcrnrnent di>puttd the jurisdiction of the Court n-ith regard to the asscsbmeiit o f damages. The Court inay confine itself to stating that this jurisdiction was established by its Judgment of April gth, 1949 ; that, in accordance with the Statute (Article 6o), which, for the settlement of the present dispute, is binding upoii the Albanian Government, that Judgment is final and without appeal, and that therefore the matter 1s res jzidicata. The position adopted by the Albanian Government brings into operation Article 53 of the Statute, \\-hich applies to procedurc in default of appearance. This Article entitles the 1-nited Kingdom Government to call upon the Court to decide in favour of its claim, and, on the other hand, obliges the Court to satisfy itself that the claim is well founded in tact and la\\-. \fbile Article 53 thus obliges the Court to consider the s~ibmissions of the Party which appears, i t does not compel the Court to examine their accuracy in al1 their details ; for this might in certain unopposetl cases prove impossible in practice. I t is sufficient for the Court to convince itself by such methods as it considers suitable that the submissions are well founded.

text: I t was in view of these considerations and on account of the technical nature of the questions involveci in the assessment of compensation in the present case that the Court ordered the expert encluiry mentioned above. The claim of the rnited Kingdom Government is under three separate heads which will be considered in succession.

text: I . Loss of the destroyer "Saunzare~"

text: I n the filial submissions contained in its ~vritten Observatioii~ of July 28th, 1949, and maintained in its oral state~neiit of November 17th, 1949, the 'C7iiited Iiiiigdom Go\.t~riirncnt estimates 8 the damage sustained by the total loss of the destroyer Snunzare,a t £ 700,087 ; this sum represents the replacement value of the ship a t the time of its loss in 1946 (after deducting the value of usable parts-equipment, scrap), and the value of stores that must be considered as lost.

text: The experts, for their part, estimated the whole of this damage a t a somewhat higher figure, L 716,780.

text: The Court considers the true measure of compensation in the present case t o be the replacement cost of the Saztmarez at the time of its loss. The Court is of the opinion that the amount of compensation claimed by the L-nited Kingdom Government has bceri justified. I t cannot award more than the amouiit claimed in the submissions of the United Kingdom Gollernment.

text: Dnmage to tlze destroyer "Volage"

text: I n the final submissions as stated in its written Observations of July zSth, 1949, and maintained in its statement in Court, the Gnited Kingdom Government, under the head of damage caused to this vessel, claimed a sum of lt; 93,812. The slightly lower figure of the experts, ;t: 90,800, may, as their Report points out, be explained by the necessarily approximate nature of the valuation, especially as regards stores and equipment.

text: The Court considers that the figures submitted by the Vnited Kingdom Government are reasonable and that its claim is well founded. In this matter it takes note of the following conclusion in the experts' Report : "During their enquiry and calculations, and as a result of their experience and of the information placed before them, the experts have become convinced that the claim of 793,899 submitted by the United Kingdom Government may be taken as a fair and accurate estimate of the damage sustained."

text: Claims in respect of denths and injziries of tinzlal personnel

text: In the final submissions as stated in its written Observations of July 28th, 1949, and maintained in its statement in Court, the Gnited Kingdom Government claimed under this head a sum of L 50,048, representing the cost of pensions and other grants made by it to victims or their depciidants, and for costs of administration, medical treatment, etc.

text: J VDGMEEjT OF 1 j X I I 49 (CORFC-COJIPENS.~TIOK) 2 50 This expenditure has been proved to the satisfaction of the Court by the documents produced by the United Kingdom Government as Aililexes 12 and 13 to its Memorial, and by the supplementary information and corrections made thereto in Appendices 1, I I and I I I of that Government's Observations of July z8th, 1949.

text: Finally, the Court points out that the United Kingdom Government, in paragraph 6 of its m i t t e n Observations of July 28th, 1949, inentioned certain damage, for which it expressly stated that it did not ask for compensation. The Court need therefore express no view on this subject.

text: by twelve votes to two,

text: Gives judgment in favour of the claim of the Go\-erilinent of the United Kingdom, and

text: Fixes the amount of compensation due from the People's Republic of -4lbania to the 'Cnited Kingdom a t jC 843,947.

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this fifteenth day of December, one thousand nine hundred and forty-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Governments of the United Kingdom of Great Britain and Northern Ireland and of the People's Kepublic of ,411)ania respectively.

text: ( S i g ~ i e d ) J. G. GC'ERRERO,

text: Acting President

text: (Sigjted) E. HAMBRO,

text: Registrar

text: JUDGMEST 3F 15 XII 49 (coKFU-COMPENSATION) 251

text: Judge KRYLOV declares that he is unable to agree either with the operative clause or with the reasons for the Judgment.

text: Judge ECER, judge ad hoc, declaring that he is unable to concur in the Judgment of the Court, has availed himself of the right conferred on hlm by Article 57 of the Statute and appended to the Judgment a statement of his dissenting opinion.

text: (Initialled) J . G . G .

text: (Initialled) E . H .

text: ANNEX 1

text: LIST OF DOCUMENTS SUBMITTED TO THE COURT AFTER THE JUDGMENT OF APRIL gth, 1949

text: Affidavit signed by the Deputy-Secretary of the British Admiralty (November 7th, 1949).

text: ANNEX 2

text: EXPERTS' REPORT OF DECEMBER ~ s t , 1949

text: Replacement value : "Saumarez"

text: The experts have made an estimate of the cost of construction of a destroyer of the Saumarez type, with the aid of the information placed at their disposal by the Royal Netherlands Navy and the Netherlands shipyards. This estimate has been checked in respect of wages, output, organization and of the rise in prices in England, and thus a new estimate on a British basis has been arrived at.

text: The "interest on the growing capital outlay" has not been taken into account in this calculation, as its inclusion did not seem to be justifiable in the present proposal. On the other hand, a sum in respect of insurance, on a post-war basis, has been included.

text: The esperts applied the cost of building a completed destroyer t o a destroyer of the Saztmarez type ; they also made a new calculation on a British basis. The smaller of the above two figures, which differ but little one from the other, was taken, and a cost price of l739,470 on a 1946 basis was arrived at.

text: In estimating the true replacement value, account was taken of the fact that during the first year of a ship's service, the decrease in value of the ship is counterbalanced by additions and alterations and, iltter d i a , by the extra cost of preparing the ship as a flotilla leader. After the first year, a clepreciation begins to occur and grows steadily greater with tlic lapse of time. Taking the life of a ship as fifteen years, the deprcciation (luring the first three years would be respectively 0-1-2 ; thiis, the replacement value of H.M.S. Saunzarez in 1946 must be reckoned at /717,280.

text: Valztc of stores

text: \Irit1i the help of the blue prints of a former British destroyer of tlic same class, the esperts made an approsimate calculation of the damage sustained through the loss, damaging and unserviceability due to sea-water, of the stores contained in the bows of the ship. They estimate this damage a t £23,300.

text: V a l u e of still serviceaO1e equipment

text: The total value of £74,870 mentioned for equipment is in agreement with the data placed at the experts' disposal from similar ships.

text: As it has been stated by the United Kingdom that the equipment in question had been in the ship since 1946, it may be assumed that, besides that part that was damaged by mine-explosion or by seawater, the rest has seriously deteriorated through lack of upkeep ; consequently, an estimate of its value must be in the nature of speculation. Taking al1 risks into consideration, a claim of ~20,ooo is considered reasonable.

text: Scrap

text: Taking into consideration the necessary cost of salvaging and cutting up, as well as the cost of transporting the material from hfalta to the scrap plants, £3,800 may be taken as a reasonable figure.

text: Compensation for "Saumarez"

text: In view of what has been stated, the experts have arrived a t the following figure for damage to H.M.S. Saumarez : Replacement value . . . . . . . . £717,280

text: Stores . . . . . . . . . . . . L 23,300

text: Less 20,000 + 3,800 . . . . . .

text: Damage "Volage"

text: The experts were in the fortunate position of having directed the carrying out of similar repairs to a former British destroyer in 1946. I t is true that in the former case, only a small part of the bows had to be replaced ; but this afforded a good basis of comparison. In arriving at their figures, the experts had to take account of the fact that the more extensive repairs to H.M.S. Volage required a long period of 205 days in dock ; this had considerable influence on the total cost. The greater cost of transport of material had also to be considered, and lastly the cost of the trials after the completion of repairs. I n the experts' opinion, these trial voyages are inseparably connected with such extensive repairs.

text: The experts estimate the total of these costs a t £64,300.

text: Stores

text: As regards the valuation of lost stores, what has been said in the case of H.M.S. Saumarez holds good. Taking into consideration the loss of anti-submarine equipment, this figure is estimated a t £26,500.

text: Compe~zsation for "Volage"

text: Repairs Volage. . . . . . . . . . £64,300 Stores and equipment . . . . . . . £26,500

text: The experts would point out that their figures are an approximation, especially in the case of the value of stores and equipment, and still more as a considerable part of the equipment is of a secret nature, and further that the portions of equipment that remain would have to be dismantled and esamined before an exact estimate of their value were possible. During their enquiry and calculations, and as a result of their experience and of the information placed before them, the experts have become convinced that the claim of £793,890 submitted by the United Kingdom Government may be taken as a fair and accurate estimate of the damage sustained.

text: This Report was drawn up in English in one copy a t the Peace Palace, The Hague, this first day of December, one thousand nine hundred and forty-nine.

text: (Signed) BERCK (Signed) G. DE ROOY

text: ANNEX 3

text: QUESTIONS PUT BY MEMBERS OF THE COURT AND REPLIES OF T H E EXPERTS (MEETING OF DECEMBER 3rd, 1949)

text: Present : Acting-President Guerrero, Judges Alvarez, Hackworth, Winiarski, ZoriCiC, De Visscher, Sir Arnold McNair, Klaestad, Badawi Pasha, Krylov, Read, Hsu Mo, Azevedo, M. Eter, Judge ad hoc ; Registrar Hambro. Also present as Experts. Rear-Admiral J. B. Berck, of the Royal Netherlands Navy, Mr. G. de Rooy, Director of Naval Construction of the Royal Netherlands Navy.

text: The PRESIDENT [translatio~].-The Court is now sitting. Ive have asked the experts to come for a few moments to to-day's sitting, to enable them to supply certain members of the Court with esplanations that they would like to have on the Experts' Report. You have before you the questions on which Our colleagues would like to have esplanations. Would the Experts kindly reply to Judge De Visscher's question :

text: Would the experts explain the difference between the two methods of calculation referred to respectively in paragraphs I and 3 of page I of the Report l ?

text: Rear-Admiral B E R C K . - T ~ ~ evaluation of the construction costs of the destroyer Saumarez was approached by two ways :

text: In the first instance, we started from the actual costs of a completed destroyer of 1,925 tons standard displacement, revised the calculation for the Saumarez of 1,730 tons, taking into account differences in labour wages, labour performance and costs of materials, and arrived at a cost for new construction in 1946 of £751,750.

text: In the second place, we followed the normal proceedings in planning a new ship. We calculated the building costs of shipbuilding, engineering, electrical engineering, armament, torpedoes and special equipment, al1 on a 1946 British basis. The result was a new construction figure of £737,470.

text: This last figure, having &en obtained in the most accurate way, was inserted in our report, the first figure serving only as a control.

text: The PRESIDENT [trnltslatiolzj.-1s M. De Visscher satisfied ? M. DE VISSCHER [trn%sZation].-Yes, Mr. President.

text: The PRESIDENT [t~a~tslatio~z].-\~~ill the Expert now reply to Judge Azevedo's question ?

text: See p. 258. paras. I and 3.

text: 2 1

text: I. What is the progressive rate of depreciation of a destroyer, during each year of its existence, which is estimated a t fifteen years ?

text: Rear-Admiral BERCK.-I. The depreciation value of a destroyer is due, in the first place, to the normal Wear and tear of the ship. In the second place, the installed war equipment becomes in the long run more or less obsolete, depending on the development of new equipment. This last influence becomes most marked in the second five years, as in the last five years the destroyer cannot any longer be considered as a first line ship, although it is still usable for many war purposes.

text: In Our experience, the yearly depreciation must be fixed as follows : First year, 0% ; second year, 1% ; third year, 2% ; fourth year, 3% ; fifth year, 4% ; sixth to tenth year, 7% ; eleventh to fifteenth year, IO%, leaving a t the end of fifteen years a residual value of 5Yo. This is more than the actual scrap value, as the ship is still usable for special purposes, training, etc.

text: z. Li'liat was the rate of increase in the cost of building a destroyer in 1946 and in 1949, as compared with its cost in 1943 ?

text: z. The increased cost of building in England in 1946, as compared with 1943, is about 30%. Our own information tallies in this respect with the data given in Mr. Powell's affidavit. 1 regret we have not had time to obtain the necessary data for 1949. 1 would, however, roughly estimate it a t 50 to 60% for warships. For merchant ships it would be 43%.

text: The PRESIDENT [tra.nslatio~t].-1s Judge Azevedo satisfied with the reply ? Judge AZEVEDO [franslatiolz].-Yes. The PRESIDENT [tralzslatio~~].-There are now the four questions' asked by Judge EEer. Judge EEER [translation].-An answer was given to my questions 2 and 3 in the explanations furnished to Judges De Visscher and Azevedo. Only questions I and 4 remain to be answered.

text: I. On page 1, paragraph 2 1, of the Iieport, it is said: "On the other hand, a s u x ~ i n respect of insurance, on a post-war basis, has been included." (a) Call the experts mention this sum ? (b) 1 would draw the experts' attention to Mr. Powell's affidavit, in which two figures are given : , in paragraph 5 - £21,355). in paragraph 7 - £ 2,000.

text: 1 See p. 258, para. 2.

text: CORFU CHAXSEL (COMPENSATION) - QUESTIONS AND REPLIES 263

text: I t seems to me that the difference may be explained as follows: in paragraph 5 , the figure covers two classes of risks, the builder's and the King's Enemy risks ; whereas the amount in paragraph 7 only covers the builder's risks.

text: Am 1 right ?

text: Rear-Admiral BERCK.-I (a) -4s the insurance for builder's risk is fixed a t the London Exchange, we put into Our calculation the same figure as Mr. Powell, namely, ,C;Z,OOO.

text: (b) As His Excellency Judge ECer rightly points out, the higher figure in Mr. Powell's affidavit also covers the additional risks in war-time.

text: On page zl, under "Value of still serviceable equipment", the Report says: "The total value of £74,870 mentioned for equipment is in agreement with the data placed a t the experts' disposal from similar ships."

text: Could the experts say : (a) Where this figure of £74,870 has been mentioned ? (b) If this figure represents the value of still serviceable equipment, why do the experts consider reasonable the sum of ~20,000, mentioned in paragraph 13 of the United Kingdom Observations ? (c) CVhy is it said in the Report that a claim of ,620,000 is reasonable, when it is not a claim but, on the contrary, a reduction of the United Kingdom claim ?

text: Rear-Admiral B ~ ~ c ~ . - R e g a r d i n g question 4, a t the public Sitting of this Court held on Thursday, November 17th, Sir Frank Soskice announced that the different departments of the Admiralty had made lists of equipment suited for possible re-use. The estimated value of this equipment as new, was £74,870. For destroyers of the same class now in service in the Royal Netherlands Navy, we made the same valuation and found that the figure mentioned by the United Kingdom Government for equipment as new, was acceptable.

text: As we pointed out in our report, the assessment of the present day value is of a speculative nature. The equipment had been in the ship for three years without proper maintenance, in the sub-tropical climate of Malta, and under the influence of salty air. Deterioration and corrosion is to be expected. Before being used again, each instrument has to be taken apart, cleaned and checked, and corroded parts will have to be replaced. Taking into account labour and transportation costs, a reduction of &o,ooo is fair and, in the opinion of the experts, on the high side.

text: l See p. 258.

text: Regarding question 4 (c), we regret that in the haste of finishing the report, the jC20,ooo was put down as a claim. As Judge EEer rightly points out, it is not a claim, but a reduction of the total claim.

text: The PRESIDENT [translation].-1s Judge m e r satisfied ? Judge EEER [tramlation].-Yes, Mr. President. The PRESIDENT [translation].-We have now Judge Winiarski's question. In their Report of December ~ s t , p a r v a h z l , the experts Say that "The 'interest on the growing capitafoutlay' has not been taken into account in this calculation, as its inclusion did not seem to be justifiable in the present proposai." (a) W ~ Y ? (b) What, in our opinion, were the reasons for including it in Mr. ~oweg's calculation ?

text: Rear-Admiral BERCK.-Regarding the question of Judge Winiarski, the builder of a warship is not paid on delivery of the ship, but during the time of construction, in instaiments. A first instalment is as a rule made after the signing of the contract ; further payments when rincipal parts, for instance, hull, main machine , etc., are completed. heoretically, it seems right to add to the buil ing costs the interest 7

text: on the growing capital outlay.

text: In Our experience, however. this interest is never added to the building costs. In Mr. Powell's affidavit, the interest on growing capital outlay is mentioned, but not included in the final claim.

text: We are not able to judge the reasons for including thk amount in Mr. Powell's &davit. The PRESIDENT [translation].-1s Judge Winiarski satisfied ? Judge WINIARSKI [translation].-Yes, Mr. President. .The PRESIDENT [translation].-DO other members of the Court. wish to put questions to the experts? Judge ZoRIE16 [trajaslation].-If 1 understood rightly, ~ e a r - ~ d m i r a l Berck, in reply to Judge De Visscher's question, said that a sum of £737,470 was reached, whereas the amount in the report is £739,470. This point must be cleared up in order that the verbatim record should not contradict the Report. Rear-Admiral BERCK.-AS a matter of fact, the figure of L737,470 is the new construction figure. There must be added the insurance costs of ,Clz,ooo, and we kept the new construction figure clear of that.

text: The PRESIDENT [translation].-Are there any further questions ?

text: l See p. 258, para. 2.

text: Judge ECER [translation].-If the experts have examined al1 the details of the damage, 1 should like to ask them whether they can say that al1 the damage to the Volage mentioned in the United Kingdom document is the direct consequence of the explosion. Rear-Admiral B E R C K . - ~ ~ ' ~ have seen the details as given by the United Kingdom Government about the damage to the Tlolage, and we must consider this as a direct consequence of the mine explosion.

text: The PRESIDENT [translation].-It remains for me to thank the experts for the explanations they have given us ; their replies will be useful to the Court in fising the amount of the reparations. Rear-Admiral B E R C K . - T ~ ~ experts would like to thank the Court for having given them the opportunity of having participated in a small way in the Court's work.

text: The Court rose a t I I a.m.


doctype: rådgivande yttrande

identifier: ICJ 3 (Advisory opinion, 1948-05-28)

caseName: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)

decisionType: advisory opinion

reportsCitation: I.C.J. Reports 1948, p. 57

title: Advisory Opinion of 28 May 1948

text: INTERNATIONAL COURT OF JUSTICE

text: May 28th.

text: YEAR 1948. General List : No. 3.

text: May 28th, 1948.

text: CONDITIONS OF ADMISSION OF A STATE

text: TO MEMBERSHIP IN THE UNITED NATIONS

text: (ARTICLE 4 O F THE CHARTER)

text: Request for advisory opinion in virtue of Resolution of General Assembly of United Nations of November 17th, 1g47.-Req~eSt-does not refer to actual vote but to statements made by a Member concerning the vote.-Request limited to the question whether the conditions i n Article 4 , paragraph 1, of the Charter are exhaustive.-Legal or political clzaracter of the question.-Competence of the Court to deaZ with questions in abstract terms.-Competence of the Court to inte9pret Article 4 of the Charter.-Legal character of the rules i n Article 4.- Interpretation based o n the natural meaning of terms.-Considerafiohs extraneous to the conditions of Article 4. Considerations capable of being connected with these conditions.-Procedural character of paragraph 2 of Article 4.-Subordination of political organs to treaty provisions which govern them. Article 24 of the Charter.-Demand o n the part of a Member making its consent to the admission of a n applicant dependent on the admission of other applicants.-Individual consideration of every application. for admission o n its own merits.

text: ADVISORY OPINION.

text: Present : President GUERRERO ; Vice-President BASDEVANT ; Jztdges ALVAREZ, FABELA, HACKWORTH, WINIARSKI, ZORIEIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, HSU MO, A~EVEDO.

text: composed as above,

text: gives the following advisory opinion :

text: On November 17th, 1947, the General Assembly of the United Nations adopted the following Resolution :

text: " T h e General Assembly, Considering Article 4 of the Charter of the United Nations, Considering the exchange of views which has taken place in the Security Council at its Two hundred and fourth, Two hundred and fifth and Two hundred and sixth Meetings, relating to the admission of certain States to membership in the United Nations, Consideriag Article 96 of the Charter, Requests the International Court of Justice to give an advisory opinion on the following question : 1s a hlember of the United Nat;-ons which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the adn~ission dependent on conditions not expressly provided by paragraph I of the said Article ? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State ? Instrzlcts the Secretary-General to place at the disposal of the Court the records of the above-mentioned meetings of the Seciirity Council .' '

text: By a note dated November 24th, 1947, and filed in the Registry on November zgth, the Secretary-General of the United Nations transmitted t o the Registrar a copy of the Resolution of the General Assembly. In a telegram sent on December ~ o t h , the Secretary-General informed the Registrar t h a t the 'note of November 24th was t o be regarded as the official notification and t h a t certified true copies of the Resolution had been despatched. These copies reached the Registry on December ~ a t h , and the question was then entered in the General List under No.

text: The same daÿ, the Registrar gave notice of t h e request for a n opinion t o al1 States entitled t o appear before t h e Court, in accordance with paragraph I of Article 66 of the Statute. Furthermore,

text: ARTICLE 4 O F T H E CHARTER O F T H E U N I T E D NATIONS 59 as the question put mentioned Article 4 of the Charter, the Registrar informed the Governments of Members of the United Kations, by means of a special and direct communication as provided in paragraph 2 of Article 66, that the Court was prepared to receive from them written statements on the question before February gth, 1948, the date fixed by an Order made on December ~ z t h , 1947, by the President, as the Court was not sitting. By the date thus fixed, written statements were received from the following States : China, El Salvador, Guatemala, Honduras, India, Canada, United States of America, Greece, Yugoslavia, Belgium, Iraq, Ukraine, Union of Soviet Socialist Republics, and Australia. These statements were commiinicated to al1 Members of the United Nations, who were informed that the President had fixed April q t h , 1948, as the opening date of the oral proceedings. A statement from the Government of Siam, dated January 3oth, 1948, which was received in the Reqistry on Februarÿ 14th, i.e., after the expiration of the time-limit, wasaccepted by decision of the President and was also transmitted to the other Members of the United Nations. By its Resolution the General Assembly instructed the Secretary-General to place a t the disposal of the Court the records of certain meetings of the Security Council. In accordance with these instructions and with paragraph 2 of Article 65 of the Statute, where it is laid down that every question submitted for an opinion shall be accompanied by al1 dociiments likely t o throw light upon it, the Secretary-General sent to the Registry the documents which are enumerated in Section 1 of the list annexed to the present opinion l. A part of these documents reached the Registry on February ~ o t h , 1948, and the remainder on March 20th. The Secretary-General also announced by a letter of February ~ z t h , 1948, that he had designated a representative, authorized to present any written and oral statements which might facilitate the Court's task. Furthermore, the Govemments of the French Republic, of the Federal People's Republic of Yugoslavia, of the Kingdom of Belgium, of the Czechoslovak Repilblic, and of the Republic of Poland announced that they had designated representatives to present oral statements before the Court.

text: By decision of the Court, the opening of the oral proceedings was postponed from April15th to April zznd, 1948. In the course of public sittings held on April zznd, ~ 3 r d and 24th, the Court heard the oral statements presen ted -on behalf of the Secretary-General of the United Nations, by its representative, Mr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department ;

text: l See page 116.

text: -on behalf of the Government of the French Republic, by its representative, M. Georges Scelle, Professor a t the Faculty of Law of Paris ; - o n behalf of the Government of the Federal People's Republic of Yugoslavia, by its representative, Mr. Milan BartoS, Minister Plenipotentiary ; - o n behalf of the Government of the Kingdom of Belgium, by its representative, M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary, Head of the Division for Peace Conferences and International Organization a t the Ministry for Foreign Affairs, Member of the Permanent Court of Arbitration ; - o n behalf of the Government of the Republic of Czechoslovakia, by its representative, Mr. Vladimir VochoE, Professor of International Law in Charles University a t Prague ; - o n behalf of the Govemment of the Republic of Poland, by its representative, Mr. Manfred Lachs, Professeur agrégé of International Law a t the University of Warsaw. In the course af the hearings, new documents were filed by the representatives accredited to the Court. These documents are enumerated in Section I I of the list annexed to the present opinion 1.

text: Before examining the request for an opinion, the Court considers it necessary to make the following preliminary remarks : The question put to the Court is divided into two parts, of which the second begins with the words "In particular", and is presented as an application of a more general idea implicit in the first. The request for an opinion does not refer to the actual vote. Although the Members are bound to conform to'the requirements of Article 4 in giving their votes, the General Assembly can hardly be supposed to have intended to ask the Court's opinion as to the reasons which, in the mind of a Member, may prompt its vote. Such reasons, which enter into a mental process, are obviously subject to no control. Nor does the request concern a Member's freedom of expressing its opinion. Since it concerns a condition or conditions on which a Member "makes its consent dependent", the question can only relate to the statements made by a Member concerning the vote it proposes to give.

text: I t is clear from the General Assembly's Resoliition of November 17th, 1947, that the Court is not called upon either to define the meaning and scope of the conditions on which admission is made dependent, or to specify the elements which may serve in a concrete case to verify the existence of the requisite conditions. -- ' See page I I ~ .

text: The clause of the General Assembly's Resolution, referring t o

text: stood as an invitation t o the Court t o Say whether the views thus referred to are well founded or otherwise. The abstract form in which the question is stated precludes such an interpretation. The question put is in effect confined to the following point only : are the conditions stated in paragraph I of Article 4 exhaustive in character in the sense that an affirmative reply would lead to the conclusion that z Member is not !rgally entitled to make admission dependent on conditions not expressly provided for in that Article, while a negative reply would, on the contrary, authorize a Member to make admission dependent also on other conditions.

text: Understood in this light, the question, in its two parts, is and can only be a purely legal one. To determiiie the meaning of a treaty provision-to determine, as in this case, the character (exhaustive or othenvise) of the conditions for admission stated therein-is a problem of inferpretation and consequently a legal question.

text: I t has nevertheless been contended that the question put must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the Court. The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision. I t is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which tool; place in that body. I t is the duty of the Court to envisage the question submitted to it only in the abstract form which fias been given to it ; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances. I t has also been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or othenvise. Lastly, it has also been maintained that the Court cannot reply to the question put because it involves an interpretation of the Charter. Nowhere is any provision to be found forbidding the Court, "the principal judicial organ of the United Nations", to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretative function which falls within the normal exercise of its judicial powers. Accordingly, the Court holds that it is competent, on the basis of Article 96 of the Charter and Article 65 of the Statute, and 8 considers that there are no reasons why it should decline to answer the question put to it. I n framing this answer, i t is necessary first to recall the "conditions" required, under paragraph I of Article 4, of a n applicant for admission. This provision reads as follows : "Membership in the United Nations is open to al1 other peaceloving States which accept the obligations contained in the present Charter and, in the judgment' of the Organization, are able and willing to carry out these obligations."

text: The requisite conditions are five in number: to be admitted to membership in the United Nations, a n applicant must (1) be a State ; (2) be peace-loving ; (3) accept the obligations of the Charter ; (4) be able to carry out these obligations ; and ( 5 ) be willing to do so. Al1 these conditions are subject to the judgment of the Organization. The judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4, and, in the last analysis, that of its Members. The question put is concerned with the individual attitude of each Member called upon t o pronounce itself on the question of admission. Having been asked to determine the character, exhaustive or otherwise, of the conditions stated in Article 4, the Court must in the first place consider the text of that Article. The English and French texts of paragraph I of Article 4 have the same meaning, and i t is impossible to find any conflict between them. The text of this paragraph, by the enumeration which i t contains and the choice of its terms, clearly demonstrates the intention of its authors to establish a legal rule which, while i t fixes the conditions of admission, determines also the reasons for which admission may be refused ; for the text does not differentiate between these two cases and any attempt .to restrict it to one of them would be purely arbitrary. The terms "Membership in the United Nations is open to

text: Membres des Nations unies tous autres États pacifiques", indica t e that States which fulfil the conditions stated have the qualifications requisite for admission. The natural meaning of the words used leads to the conclusion that these conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example. The provision would lose its significance and weight, if other conditioils, unconnected with those laid down, could be demanded. The conditions stated in paragraph I of Article 4 must therefore be regarded not merely as the necessary conditions, but also as the conditions which sufice.

text: Nor can it be argued that the conditions enumerated represent only an indispensable minimum, in the sense that political considerations could bc superimposed upon them, and prevcilt the admission of ail applicant which fulfils them. Such a n interpreta- 9 tion would be inconsistent with the terms of paragraph 2 of Article 4, which provide for the admission of "tout Etat remplissant ces conditions"-"any such State". I t would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions. Such a power would be inconsistent with the very character of paragraph I of Article 4 which, by reason of the close connexion which i t establishes between membership and the observance of the principles and obligations of the Charter, clearly conçtitutes a legal regulation of the question of the admission of new States. To warrant an interpretation other than that which ensues from the natural meaning of the words, a decisive reason would be required which has not been established. Moreover, the spirit as well as the terms of the paragraph preclude the idea that considerations extraneous to these principles and obligations can prevent the admission of a State which complies with them. If the authors of the Charter had meant t o leave Members free to import into the application of this provision consideratiops extraneous to the conditions laid down therein, they would undoubtedly have adopted a different wording.

text: The Court considers that the text is sufficiently clear ; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself. The Court furthermore observes that Rule 60 of the Provisional Rules of Procedure of the Security Council is based on this interpretation. The first paragraph of this Rule reads a s follows : "The Security Council shall decide whether in its judgment the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter, and accordingly whether to recommend the applicant State for membership."

text: I t does not, however, follow from the exhaustive character of paragraph I of Article 4 that an appreciation is precluded of such circumstances of fact as would enable the existence of the requisite conditions to be verified. Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in t h a t Article. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions ; no relevant political factorthat is to Say, none connected with the conditions of admission-is excluded.

text: I t has been sought to deduce either from the second paragraph of Article 4, or from the political character of the organ recommending or deciding upon admission, arguments in favour of an interpretation of paragraph I of Article 4, to the effect that the fulfilment of the conditions provided for in that Article is necessary before the admission of a State can be recommended or decided upon, but that it does not preclude the Members of the Organization from advancing considerations of political expediency, extraneous to the conditions of Article

text: But paragraph 2 is concerned only with the procedure $or admission, while the preceding paragraph lays down the substantive law. This procedural character is clearly indicated by the words "will be effected", which, by linking admission to the decision, point clearly to the fact that the paragraph is solely concerned with the manner in which admission is effected, and not witb the subject of the j u d g m e ~ t of the Organization, nor with the nature of the appreciation involved in that judgment, these two questions being dealt with in the preceding paragraph. Moreover, this paragraph, in referring to the "recommendation" of the Security Council and the "decision" of the General Assembly, is designed only to determine the respective functions of these two organs which consist in pronouncing upon the question whether or not the applicant State shall be admitted to membership after having established whether or not the prescribed conditions are fulfilled. The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution. In this case, the limits of this freedom are fixed by Article 4 and allow for a wide liberty of appreciation. There is therefore no conflict between the functions of the political organs, on the one hand, and the exhaustive character of the prescribed conditions, on the other. It has been sought to base on the political responsibilities assumed by the Security Council, in virtue of Article 24 of the Charter, an argument justifying the necessity for according to the Security Council as well as to the General Assembly complete freedom of appreciation in connexion with the admission of new Members. But Article 24, owing to the very general nature of its terms, cannot, in the absence of any provision, affect the special rules for admission which emerge from Article 4. The foregoing considerations establish the exhaustive character of the conditions prescribed in Article 4.

text: The second part of the question concerns a demand on the part of a Member making its consent to the admission of an applicant dependent on the admission of other applicants.

text: Judged on the basis of the rule which the Court adopts in its interpretation of Article 4, such a demand clearly- constitutes a new condition, since it is entirely unconnected with those prescribed in Article 4. It is also in an entirely different category from those copditions, since it makes admission dependent, not on the conditions required of applicants, qualifications which are supposed to be fulfilled, but on an extraneous consideration concerning States other than the applicant State. The provisions of Article 4 necessarily imply that eï ery application for admission should be examined and voted on separately and on its own merits ; othenvise it would be impossible to determine whether a particular applicant fulfils the necessary conditions. To subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State would prevent Members from exercising their judgment in each case with complete liberty, within the scope of the prescribed conditions. Such a demand is incompatible with the letter and spirit of Article 4 of the Charter.

text: b y nine votes to six,

text: is of opinion that a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, is not juridically entitled to make its consent t o the admission dependent on conditions not expressly provided by paragraph I of the said Article ;

text: and that, in particular, a Member of the Organization c a n o t , while it recognizes the conditions set forth in that provision t o be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State.

text: The present opinion has been drawn up in French and in English, the French text being authoritative.

text: Done a t the Peace Palace, The Hague, this twenty-eighth day of May, one thousand nine hundred and forty-eight, in two copies, one of which shall be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

text: ( S i g n e d ) J. G. GUERRERO,

text: President .

text: ( S i g n e d ) E. HAMBRO,

text: Registrar.

text: 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 a statement of their individual opinion.

text: Judges BASDEVANT, WINIARSKI, MCNAIR, READ, ZORICIC and KRYLOV, declarbg 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 a statement of their dissenting opinion.

text: ( I n i t i a l l e d ) J. G. G.

text: ( I n i t i a l l e d ) E . H .

text: ANNEX.

text: LIST OF DOCUMENTS SUBMITTED TO THE COURT

text: I. Provisional Rules of Procedure of the Security Council (SI961 Rev. 3. January 27th, 1948) l. 2. Rules of Procedure of the General Assembly (A/520. December ~ z t h , 1947) l. 3. Rules governing the admission- of new Members (Report of the Committee of the General Assembly) (A1384, p. 4, September 12th. 1947) l. 3. Report by the Executive Committee to the Preparatory Commission of the United Nations (PCIEXIIIZ~R~V. . . -. I. Novem-

text: ber ~ z t h , 1945) l . 5 . Report of the Preparatory Commission of the United Nations (PC/zo. December 23rd, 1945) l.

text: Records of the Security Council Committee of Experts Meetings concerning the Rules on the Admission of new Members l :

text: 1946. S/Procedure 91. > > gr, Con. I. 1 > 92. > > 93. , 93, Corr. I. > > 94. > > 99. > f 99) Con. 1. 1947. SlC.1/sR.g6. ,, 96, Corr. I. ,, 101. ,> 102. ,, 103. 3, 104-

text: Records of the meetings of the Joint Committees appointed by the General Assembly and the Security Council on Rules governing the admission of new Members a : l These documents arrived a t the Registry on February 10th. 1948. These documents arrived a t the Registry, partly on February 10th. partly on blarch zoth, 1948.

text: ARTICLE 4 O F THE CHARTER OF THE UNITED NATIONS 117 A/AC.II/SR.I. ,, SR.1, Corr. I. ,, SR.2. ,, SR.2, Rev. I. ,, SR.3. ,, SR.3, Rev. I. ,, SR.4. ,, 5 x 5 . ,, SR.6. ,, SR.7. ,, SR.8. ,, SR.8, Corr. 9 , SR.9. ,, SR.10. ,, sR.11.

text: Report of the Security Council Committee on the admission of new Members, 1946 (Security Council Oficial Records, First Year, Second Series, Supplement No. 4, p. 53) l .

text: Report of the Security Council to the General Assembly on the admission of new Members, 1946 (A11o8. October 15th, 1946) l. IO. Records of the Security Council Meetings concerning the admission of new Members, 1946. Security Council O@cial Records, First Year, Second Series :

text: No. 1. > > 2.

text: ,, 3. ,, 4.

text: 2 5. ,, 18. 2 , 23. ,, 24. ,, 25. Security Council Journal, First year, No. 35.

text: II. Records of the First Committee Meetings of the Second Part of the First Session of the General Assembly concerning the admission of new Members, 1946 : Journal 22, Suppl. No. 1-AlC.1/22. ,, 24, 9 , ,, 1-A/C.I/~I. ,, 25, ,, ,, 1-AIc.1137. ,, 26, ,, ,, 3-AlC.3143. 27, ,, ,, 1-AlC.1139. ,, 28, ,, ,, 1-Alc.1141. 29, ,, A-AlP.V.47. 2 319 ,, ,, 1-AIc.1145. 9 32, ,, -A/c.1/47. ,, 37, ,, A-AlP.V.48. ,, 38, ,, A-AIP.V.49.

text: These documents arrived a t the Registry on February 10th. 1948. These documents arrived a t the Registry, partly on February 10th. partly on March 20th. 1948.

text: Records of the Plenary Meetings of the Second Parc of the First Session of the General Assembly concerning the admission of new Members, 1946 l. (Journal No. 66, Supplement A-A1P.V. 67.)

text: Report of the Security Council Committee on the admission of new Members, 1947. Security Council Oficial Records, Second Year, Special Supplement No. 3, Lake Success, New York, 1947 l.

text: Reports of the Security Council t o the General Assembly on the admission of new Members, 1947 (Al406 October gth, 1947.- A/grg. November sznd, 1947) l.

text: Records of the Security Council Meetings concerning the admission of new Members, 1947. Security Council Oficial Records, Second Year, No. 38 :

text: Records of the First Committee Meetings of the Second Regular Session of the General Assembly concerning the admission of new Members, 1947 : A/C.I/SR. 59. ,, 59, Corn. 1. ,, 59, c o n . 2. ,, 97. ,, 98. 99. ,, 100. ,, 101. ,, 102. ,, 102, Con. 1. ,, 102, Corr. 2. ,, 103-

text: Records of the meetings of the Second Regular Session of the General Assembly concerning the admission of new Members, 1947 AlP.V.83. AIP.V.89. , Y 84. ,, 90. ,, 85. ,> 92. ,, 86. ,, 96. ,, 87. ,, 117. ,, 88. ,, 118.

text: ' These documents arrived a t the Registry on February ~ o t l i , 1948. "These documents arrived a t the Iiegistry, partly on February rotli, pnrtly o n March noth, 1948.

text: ARTICLE 4 OF THE CHARTER O F THE U N I T E D NATIONS I I 9

text: 11.-DOCUMENTS REFERRED TO DURING THE ORAL PROCEEDINGS.

text: A.-List of annexes mentioned in the statement by MY. Kerno, Assistant Secrgtary- General of the United Nations : Annex I. First Committee. Verbatim record of the 98th Meeting (Nov. 7th, 1947). Statement by the representative of Belgium (PP. 72-81). Annex 2. Ibidem. 99th Meeting (Nov. 7th, 1947). Statement by the representative of Poland (pp. 41, 42). Ann,ex 3. Ibidem. Remarks by the representative of Australia (PP. 747 93). Annex 4. Ibidem. Remarks by the representative of the U.S.S.R. ( p p 242-250, 251). Annex 5. Ibidem. 100th Meeting (Nov. 8th, 1947). Remarks by the representative of India (pp. 52-53). Annex 6. Ibidem. Remarks by the representative of Argentina (p. 161). Annex 7. Ibidem. Remarks by the representative of China ( P P 14-20). Annex 8. Ibidem. I O I S ~ Meeting (Nov. 8th, 1947). Remarks by the representative of the United Kingdom (pp. 103, 104-110). Annex g. Ibidem. ~ o z n d Meeting (Nov. ~ o t h , 1947). Remarks by the representative of Greece (p. 6). Annex IO. Ibidem. 103rd Meeting (Nov. ~ o t h , 1947). Remarks by the representative of El Salvador (p. 41). Annex II. Facts relating to the admission of new Members provided by documents of the United Nations Conference on International Organization (U.N.C.I.O.). Annex 12. Admission of new Members.

text: B.-List of annexes mentioned in the statement by M . Kaeckenbeeck, representatioe of the Belgian Government : Extract from the book by Dr. Dietrich Schindler, Die Schiedsgerichtbarkeit seit 1914 (Enkuicklang uxd hezrtzger Stand). Extract from the book by H. Lauterpachi, The Function of Law irb the Internafional Community. United Nations. General Assembly. Doc. A1474 (Noi. 13th, 1947). Idem. Doc. Alp.v.113 (Nov. 14th, 1947). Idem. Doc. A1459 (Nov. th, 1947). Idem. Doc. A/459, Corr. I (Nov. 13th, 1947).

type: avgorande


identifier: ICJ 4 (Advisory opinion, 1949-04-11)

caseName: Reparation for Injuries Suffered in the Service of the United Nations

procedure: (including the text of the declaration of Judge Winiarski)

title: Advisory Opinion of 11 April 1949

text: INTERNATIONAL COURT OF JUSTICE

text: April I th.

text: General List

text: YEAR 1949.

text: No. 4.

text: April llth, 1949.

text: REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF T H E UNITED NAl-IONS

text: l~tjrivies sttgered by agents of United Nations i n course of performance of dttties.-Damage to United Nations.-Dafnage fo agents. -Capacity of United Nations to bring claims for re#avation due i n respect of both.-International personality of United Nattons.- Capacity as necessary implication arising from CAnrtev and actiaities of United Nations.-Functional protection of agents.-Clnim against a Mevnber of the United 1Vations.-Claim against n non-~izew~bcv.- Reconciliation of claim by ?zutional State and claim by United Natzons. -Clailn by United Nations ngainst agent's national Statr.

text: ADVISORY OPINION.

text: Present : President BASDEVANT ; Vice-President GUERRERO ;

text: Judges ALVAREZ, FABELA, HACKWORTH, WINIARSKI,

text: ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD,

text: BADAWI PASHA, KRYLOV, READ, HSU MO, AZEVEDO.

text: OPIN. O F I I I V 49 (REP.IKATIOS FOR ISJCKIICS SCPFERED) I 7 j

text: THE COURT,

text: composed a s above,

text: gives t h e folloming ad1-içory opinion :

text: On Decenlber 3rd, 1948, the General Xssc.mbl'- of t h , Uilitccl Nations adopted t h e following Kcsolution :

text: "LVhereas the series of tragic el*ents ahicli 1iax.e 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 l-nited Sations with a view to ensuring to its agents the fiillest Ineasiire o f protection in the future and ensiiring that reparation be made for the injuries suffered ; and \Vhereas it is highly desirable that the Secretar\.-Gc~itral slioiiltl be able t o act withoiit question as eificacioiisly as possible \vit11 a view to obtaining any reparation dile ; tlieretore

text: The General Assenlbly

text: Decides to siibmit the following legal questions to the International Court of Justice for an acivisor>- opinion : '

text: I n the event of an agent of the United Xatioiis in the performance of his duties suffering injury in circiimstances iilvolving the responsibility of a State, has the United Sations, as an Or-ganization, the capacity to bring an interiiatio~ia: claim against the responsible de jure or de facto governilient with a view t o obtaining the reparation due in respect o f the damage caused (a) to the United Xations, ( h ) to the \ictini or to perçons entitled through him ? II. I n the event of an affirmative reply on point 1 ( b ) , how is action by the United Nations to be reconciled \vit11 siicli rights as niay be possessed hy the State of which the xictini is a national ?' Instructs the Secretary-General, after the Court has gi\-en its opinion, t o prepare proposais in the liglit of that opinion, and to submit thein to the General Assembly at its nest regiilar session."

text: I n a letter of December 4th, 1948, filed in the Registry on December 7 t h , t h e Secretary-General of the United ,Vations forwarded t o t h e Court a certified true copy of the liesoliitioii of t h e General Assembly. On December ~ o t h , i11 accor(1ance n i t h paragraph I of Article 66 of the Statute, the Kegistrar gave notice of the Request t o al1 States entitled t o appear before t h e Court. On Ilecember r ~ t h , b y ineans of a special and direct commiinication a s provided in paragraph 2 of Article 66, he informed these States t h n t , in a n Ortler made on the sanie date, the Court had

text: 5 stated that it was prepared to receive written statements on the questions before February q t h , 1949, and to hear oral statements on March 7th, 1949. Written statements were received from the following States : India, China, United States of Amenca, United Kingdom of Great Bntain and Northern Ireland, and France. These statements were communicated to al1 States entitled to appear before the Court and to the Secretary-General of the United Nations. 111 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 al1 documents likely to throw light upon it), had sent to the Registrar the documents whkh 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.

text: In the course of public sittings held on March 7th, 8th and g t h , 1949, the Court heard the oral statements presented on bel-ialf 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 Kelgiurn, by M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary of His Majesty the King of the Belgians, Head of the Divisioii for Peace Conferences and International Organization at the JIinistry for Foreign Affairs, Member of the Permanent Court of Xrbitration ; on behalf of the Government of the French Iiepublic, by M. Charles Chaumont, Professor of Public International Law a t the Faculty of Law, Nancy ; Legai 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.

text: The first question asked of the Court is as folbws : "In the event of an agent of the Cnited Sations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Xations, as an Organization, the capacit!. to bring an international clnini :igain.;t O the responsible de jure or de incfo 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 perçons entitled throiigh him ?" I t will be useful to make the follolving preliminary observations :

text: (a) The Organization of the United Kations \vil1 be referred to usually, but not invariably, as "the Organization".

text: ( 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 uilderstands 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 ~vhom 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 iil 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.

text: The questions asked of the Court relate to the "capacity to bring an international claim" ; accordingly, ive must begin by defining what is meant by that ccipacitj', and coiisider the characteristics of the Organization, so as to determine whether, in general, these characteristics do, or do not, iiicIiide for the Organization a right t o present an international claim.

text: 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 presentation and the settlement of claims. Among these inethods inay be nit,iitioned protest, request for an enquiry, negotiation, and reqiiest 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 Statcl can briiig an international claim against another State. Such a claim takes the form of a claim between two political entitit.5, cqiial i i l la\\., similar

text: OPIN. O F II I V 49 (REPSRATION FOR I N J U R I E S SGFFERED) 178

text: in form, and both the direct subjects of international law. I t 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.

text: 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. I t may, when necessary, be supported by the political means a t the disposal of the Organization. I n these ways the Orgznization 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 clnim ? I n 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. I n other words, does the Organization possess international personality ? This is no doubt a doctrinal expression, which has so,netimes 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.

text: To answer this question, which is not settled by the actual terms of the Charter, we must consider what characteristics it was intended thereby t o 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, r;ie 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 i t 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 i t (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 ; S 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 nghts 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 h a ~ e 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.

text: 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

text: 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. I t cannot be doubted that the Organization has the capacity to bnng 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. I t 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 Organization, 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.

text: When the Organization has sustained damage resulting from a breach by a Member of its international obligations, it is impossible t o see how it can obtain reparation unless it possesses capacity to bring an international claim. I t cannot be supposed that in such a n event al1 the Members of the Organization, Save the defendant

text: IO

text: OPIN. OF I I I V 49 (REPARATION FOR INJURIES SUFFERED) 181

text: State, must combine to bring a claim against the defendant for the damage suffered by the Organization.

text: The Court is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. I t 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 al1 the kinds of damage which the Organization itself might sustain.

text: Question 1 (b) is as follows :

text: I n dealing with the question of law which arises out of Question 1 ( b ) , it is unnecessary to repeat the consideïations which led to an affirmative answer being given to Question 1 (a). I t 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 t o prosecute a claim before an international tribunal. The only legal question which remains to be considered is whether, in the course of bringing a n international claim of this kind, the Organization can recover "the reparation due in respect of the damage caused

text: 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 Orgaiiization. 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 perçons not having its nationalit y. 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 pnrty t o 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 i~lvoking 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 t o in Question 1 (b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging t o the Organization, when the Organization invokes, a s the ground of its claim, a breach of an obligation towards itself.

text: Nor does the analogy of the traditional riile of diplomatic protection of nationals abroad justify in itself an affirmative reply. I t is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond nrhich exists, under -Article IOO 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 ~lationals.

text: The Court is here faced with a new situation. The questions to which it gives rise can only be solved bp realizing that the situation is donlinated 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 brearh of an obligation designed to help an agent of the Organization in the performance of his duties. l t 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 \vould be within the competence of the national State and not, as a general rule, within that of t h e Organiz a t ' ion. The Charter does not expressly confer upon the Organization the capacity t o include, in its claim for reparation, damage caiised to the victim or t o perçons entitled through him. 'I'he Court must therefore begin by enqiiiring 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 t o have those powers which, though not expressly provided in the Charter, are conferred iipon 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 -4dvisory Opinion No. 13 of July 23rd,

text: 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 t o 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 t o afford effective support t o 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 Rlembers 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 agentsrequire that these undertakings should be strictly observed. For that purpose, it is necessary that, when a n 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. I n 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 Orginization (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 thnt State, his independence might w-eil be compi-omised, contrary to the principle applied by Article ~ o o of the Charter. And lastly, it is essential thatwhether the agent belongs t o a powerful or to a weak S t a t e ; t o one more affected or less affected, by the complications of international life; t o one in sympathy o r # n o t 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 i s even more necessary when the agent is stateless. Upon examination of the character of the functions entrusted t o the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization t o 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 t h e interest of the agents, but in that of the Organization. Il'hen it claims redress for a breach of these obligations, the Organization is invoking its own right, the right that trie 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 laïv that the breach of an engagement involves an obligation t o make reparation in an adequate form"; as was stated bv the Permanent Court in its Judgment No. 8 of July 26th, 1927 (Series A., No. g, p. 21). I n claiming reparation based oii 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 t o claim ad.equate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victini or by persons entitled through him.

text: 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 t o 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. I n considering this aspect of Question 1 (a) and ( b ) , it is necessary t o 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. I t has now been established that the Organization has capacity to bring ciaims on the international plane, arid that it possesses a right of functio~ial 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 i t is not called upon t o 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 t o recover reparation in respect of t h a t 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, t o 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 a t the conclusion that ail affirmative answer should be given t o Question 1 (a) and (b) whether or not the defendant State is a Member of the United Xations.

text: Question II is as follo~vs :

text: "In the event of an affirmative reply on point 1 (O), Iiow is action by the Cnited Xations to be reconciled u i t h siicli rights as may be possessed by the State of which the victim is a national ? "

text: The affirmative reply given by the Court on point 1 (b) obliges it now t o examine Question II. When the victim has a ilationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organization. I n 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 t o deal.

text: I n such a case, there is no rule of l a n n:hich assigns priority t o the one or to the other, or which compels either the State or the Organization to refrain from b r i ~ g i n g an international claim.

text: 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 t o render "every assistance" provided by -4rticle 2, paragraph 5, of the Charter. hlthoiigh the bases of the two claims are different, that doeî 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 thev 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 iniured in the ~erformance of missions undertaken for the Organization have shown a reasonable and CO-operative disposition to find a practical solution.

text: The question of reconciling action by the Organization with the rights of a national State may arise in another wdy ; that is to say, when the agent bears the nationality of the defendant State.

text: The ordinary practice whereby a State does not exercise protcction 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 i t does not inatter 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 i t occurring in relation to the performance of his mission by that agent.

text: The Court is of opinion

text: O n Question I (a) :

text: (i) unaiiimously,

text: 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 a n international claim against the responsible de jzwe or de facto government with a view to obtaining the reparation due in respect of the damage C a u s e to the United Nations.

text: (ii) unanimously,

text: That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibilitÿ of ii 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.

text: O n Question I (b) :

text: (i) by eleven votes against four,

text: That, in the event of an agent of the United Xations i i i the performance of his duties suffering injury in circumstances iiivol\.ing the responsibility of a Member State, the United Satioiis as an Organization ha.; the capacity to bring an international claim against the responsible de jure or ti'e facto government n i t h a view t o obtaining the reparation due in respect of the damage caused to the victim or t o persons entitled through him.

text: (ii) by eleven votes against four,

text: That, in the event of an agent of the United Nations in the performance of his duties suffering iiijury 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 /acte government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him.

text: OPIK. OF I I I V 49 (REPAR- TI OS F O R I S J C K I E S S C F F I ~ R I ~ D ) 188

text: On Question I I :

text: By ten votes against fi~ve,

text: IVhen the United Nations as a n Organization is bringing a claim for reparation of damage caused t o its agent, it can only do so by basing its claim upon n breach of obligations due to itself ; respect for this rule wrill usually prevent a conflict between the action of the United Sations 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 t o be made between the Organization and individual States, either generally or in each case.

text: Done in English and French, the English test being nuthoritntive, a t the Peace Palace, The Hague, this eleventh day of .-\pril, one thousaiid nine hundred and forty-nine, in t ~ v o copie<, one of n-hich will bc placed in the girchivez of the Court and the othrr transmitted t o the Secretary-General of the Cnited S:ition<.

text: (Signed) BASDEVASS,

text: President .

text: (Signed) E. HAJIBKO,

text: Registrar.

text: OPIN. O F II I V 49 (REPARATION FOR I N J U R I E S SUFFERED) 189

text: Judge WINIARSKI states with regret that he is unable to concur in the reply given by the Court to Question 1 (b). I n general, he shares the views expressed in Judge Hackworth's dissenting opinion.

text: 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.

text: Judges HACKWORTH, BADAWI PASHA and K R Y L O V , declaring that they are unable t o 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.

text: ANNEX.

text: LIST OF DOCUMENTS SUBMITTED TO T H E COURT.

text: DOCUMENTS SUBMITTED BY THE SECRETARY-GEKERAL OF THE UXITED NATIONS I N THE COURSE O F T H E IVRITTEN PROCEEDINGS.

text: I . Document of the General Assembly (A/674, October 7 t h , 1948). z. Record of Plenary Meeting of General Assembly (AiPV 169, December 3rd, 1948).

text: Documents of Sixth Committee of the GeneraI .4ssembIy. AIC.61275. AIC.61282. ,, 275IRev. I. ,., 283. ,, 276. , , 284. ,, 277. ,, 285. ,, 278. ,, 286. ,> 279. ,, 287. ,, 279/c0JT. 1. ,, 291- ,, 280. ,, 292. ,, 281. ,, 293. ,, 281JRev. I. ,, 294. ,, 281IRev. 2.

text: Report of Sixth Committee of the General Assembly (A1749, December 2nd' 1948), Corr. 1, French text, and Corr. 2, English text.

text: Records of Sixth Committee of the General Assembly.

text: AIC.6ISR 118. ,, 119. ,, 120. ,, 121. ,, 124. ,, 124, Corr. 1, Engl. text.