Reparation for Injuries Suffered in the by uVLerY


									Scope of public international law
Legal personality of the United Nations

         Reparation for Injuries Suffered in the Service of the United Nations
                     Advisory Opinion, ICJ Reports 1949, p 174

In 1948 the United Nations Mediator in the Middle East, Count Bernadotte, a Swedish
diplomat, was murdered by terrorists in territory under the control of the provisional
government of Israel. Although this action was immediately disowned and deplored
by the Israeli government, the question arose whether the United Nations possessed
the capacity to make an international claim against Israel for reparation in respect of
the damage suffered by the United Nations as the result of Count Bernadotte’s death.

The General Assembly of the United Nations requested an advisory opinion on this
question from the International Court of Justice. The court unanimously answered the
question in the affirmative. In particular, after consideration of the Charter of the
United Nations and the purposes and powers of the organization, the court held that
the test of functional necessity required the attribution to the United Nations of a legal
personality separate from the legal personalities of its member states. Thus, as a
subject of public international law, the United Nations was capable of possessing
rights and duties, including the capacity to maintain its rights by bringing an
international claim against a sovereign state.


1.   The diplomatic settlement of the dispute between the United Nations and Israel arising out of the
     murder of Count Bernadotte is instructive. In April 1950 the Secretary-General of the United
     Nations submitted to the Israeli government a claim for reparation in the sum of $US54,628. The
     claim was based on three elements of state responsibility:
         (1) failure by Israel to exercise due diligence and to take all reasonable measures for the
              prevention of the murder;
         (2) liability of the Israeli government for acts committed by irregular forces in territory under
               its control; and
         (3) failure by Israel to take all measures required by public international law to bring the
              perpetrators to justice.

     In June 1950 the Israeli government, without formal admission of liability, paid the claim. The
     payment was accompanied by a letter from the Minister for Foreign Affairs of Israel, addressed to
     the Secretary-General of the United Nations, which stated that Israel sincerely regretted that “this
     dastardly assassination” had taken place on Israeli territory.

2.   The “behind the scenes” nature of diplomatic settlement of international disputes is illustrated by
     the following examples:

     A. In 1988 a United States warship, USS Vincennes, operating in the Persian Gulf, shot down an
        unarmed civilian airliner operated by Iran Air killing all 290 persons on board. In 1996 the
        United States State Department announced that the United States and Iran had settled Iran’s
        claims arising out of this incident, such settlement involving substantial payment by the
        United States to the survivors of each victim. See 90 AJIL 278 (1996).

     B. In May 1999 during an eleven week air campaign against the Federal Republic of Yugoslavia,
        United States military aircraft operating under NATO command bombed, in

              error, the Chinese Embassy in Belgrade, killing three Chinese nationals and wounding twenty
              others. On 30 July 1999 the United States and China reached agreement for the payment of
              compensation by the United States to the families of the persons killed and to the persons
              injured in this incident. Subsequently agreement was reached on the payment of
              compensation for property damage. See 94 AJIL 127 (2000).

RA:IntLaw07/Reparation for injuries suffered in UN

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